As filed with the Securities and Exchange Commission on May 8, 1996
Registration No. 333-_______
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
PacifiCorp PacifiCorp Capital I
(Exact name of Registrant PacifiCorp Capital II
as specified in charter) (Exact names of Registrants
as specified in Trust Agreements)
Oregon Delaware
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
93-0246090 Each to be applied for
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
RICHARD T. O'BRIEN
Senior Vice President
and Chief Financial Officer
PacifiCorp
700 NE Multnomah, Suite 1600
Portland, Oregon 97232
503-731-2000
(Address, including zip code, and telephone
number, including area code, of Registrants'
principal executive offices and 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 proposed sale to the public: From time to time
after the effective date of the Registration Statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check
the following box. / /
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box.
/ X /
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act of 1933, please
check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same
offering. / /
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act of 1933, check the following box and list
the Securities Act 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>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Proposed Proposed maximum
Title of each class of Amount to be maximum offering aggregate offering Amount of
securities being registered registered price per unit (1) price (1) registration fee (2)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
PacifiCorp Junior Subordinated
Deferrable Interest Debentures............
- ------------------------------------------------------------------------------------------------------------------------------------
PacifiCorp Capital I and II
Preferred Securities......................
- ------------------------------------------------------------------------------------------------------------------------------------
PacifiCorp Guarantee with respect to
Preferred Securities (3)(4)...............
- ------------------------------------------------------------------------------------------------------------------------------------
Total..................................... $220,000,000(5) 100% $220,000,000(5) $75,863 (6)
========================================== ===================== ===================== ====================== =====================
<FN>
(1) Estimated solely for the purpose of computing the registration fee.
(2) The amount of the registration fee has been calculated in accordance
with Rule 457(o) under the Securities Act of 1933.
(3) No separate consideration will be received for the PacifiCorp
Guarantee.
(4) This Registration Statement is deemed to include the obligations of
PacifiCorp under the PacifiCorp Guarantee and certain back-up
undertakings as described herein.
(5) Represents (a) the principal amount of the Junior Subordinated
Deferrable Interest Debentures issued at their principal amount and
(b) the initial public offering price of PacifiCorp Capital I and II
Preferred Securities. No separate consideration will be received for
any PacifiCorp Guarantees or PacifiCorp Junior Subordinated Deferrable
Interest Debentures in connection with an issuance of Preferred
Securities by PacifiCorp Capital I and II. 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.
(6) An aggregate of $30,000,000 of PacifiCorp Junior Subordinated
Debentures is being carried forward from registration statement No.
33-55309, as to which securities a registration fee of $10,344 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. 33-55309.
------------------------------
The Registrants hereby amend this Registration Statement on such
date or dates as may be necessary to delay its effective date until the
Registrants 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. Neither this prospectus supplement nor the prospectus to
which it relates shall 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 MAY 8, 1996
PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED MAY ___,1996
__________ Preferred Securities
PACIFICORP CAPITAL I
____% Cumulative Quarterly Income Preferred Securities, Series A (QUIPS(sm))*
(Liquidation preference $25 per preferred security)
Guaranteed to the extent PacifiCorp Capital I has funds
as set forth herein by
[LOGO]
PACIFICORP
--------------------
The ____% Cumulative Quarterly Income Preferred Securities, Series
A (the "Series A Preferred Securities"), offered hereby represent undivided
beneficial interests in the assets of PacifiCorp Capital I, a trust created
under the laws of the State of Delaware ("PacifiCorp Capital I").
PacifiCorp, an Oregon corporation ("PacifiCorp"), will be the owner of all
of the beneficial interests represented by common securities of PacifiCorp
Capital I ("Series A Common Securities"). The Bank of New York is the
Property Trustee of PacifiCorp Capital I. PacifiCorp Capital I exists for
the sole purpose of issuing the Series A Preferred Securities
(continued on next page)
____________________
SEE "RISK FACTORS" BEGINNING ON PAGE S-5 HEREOF FOR
CERTAIN INFORMATION RELEVANT TO AN INVESTMENT IN
THE SERIES A PREFERRED SECURITIES.
---------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS SUPPLEMENT OR THE PROSPECTUS TO WHICH IT
RELATES. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
Proceeds to
Initial Public Underwriting PacifiCorp
Offering Price Commission (1) Capital I (2)(3)
-------------- -------------- ----------------
<S> <C> <C> <C>
Per Series A Preferred Security $ $ (2) $
Total (2)
- ----------------
<FN>
(1) PacifiCorp Capital I and PacifiCorp have agreed to indemnify the
several Underwriters against certain liabilities, including
liabilities under the Securities Act of 1933, as amended. See
"Underwriting."
(2) In view of the fact that the proceeds of the sale of the Series A
Preferred Securities will be used to purchase the Series C
Debentures, the Underwriting Agreement provides that PacifiCorp
will pay to the Underwriters, as compensation ("Underwriters'
Compensation") for their arranging the investment therein of such
proceeds, $____ per Series A Preferred Security; provided, that
such compensation will be $____ per Series A Preferred Security
sold to certain institutions. Accordingly, the maximum aggregate
amount of Underwriters' Compensation will be $_____, but the
actual amount of Underwriters' Compensation will be less than such
amount to the extent that Series A Preferred Securities are sold
to such institutions. See "Underwriting."
(3) Expenses of the offering, which are payable by PacifiCorp, are
estimated to be $400,000.
</FN>
</TABLE>
---------------------
The Series A Preferred Securities offered hereby are offered
severally by the Underwriters, as specified herein, subject to receipt and
acceptance by them and subject to their right to reject any order in whole
or in part. It is expected that the Series A Preferred Securities will be
ready for delivery in book-entry form only through the facilities of The
Depository Trust Company in New York, New York, on or about May __, 1996,
against payment therefor in immediately available funds.
---------------------
*QUIPS is a servicemark of Goldman, Sachs & Co.
Goldman, Sachs & Co. Smith Barney Inc.
Dean Witter Reynolds Inc.
A.G. Edwards & Sons, Inc.
Merrill Lynch & Co.
The date of this Prospectus Supplement is May __, 1996.
<PAGE>
(Continued from previous page)
and the Series A Common Securities and investing the proceeds thereof in
____% Junior Subordinated Deferrable Interest Debentures, Series C (the
"Series C Debentures") to be issued by PacifiCorp. The Series C Debentures
will mature on May __, 2036 and are redeemable prior to maturity at the
option of PacifiCorp as described below. The Series A Preferred Securities
will have a preference under certain circumstances with respect to cash
distributions and amounts payable on liquidation, redemption or otherwise
over the Series A Common Securities. See "Description of Preferred
Securities--Subordination of Common Securities" in the accompanying
Prospectus.
Holders of the Series A Preferred Securities will be entitled to
receive preferential cumulative cash distributions accruing from the date
of original issuance and payable quarterly in arrears on the last day of
March, June, September and December of each year, commencing June 30, 1996,
at the annual rate of ____% of the liquidation preference of $25 per Series
A Preferred Security ("Distributions"). PacifiCorp has the right to defer
the payment of interest on the Series C Debentures at any time or from time
to time for one or more periods (each, an "Extension Period"), provided
that such Extension Period, together with all previous and further
extensions thereof prior to its termination, does not exceed 20 consecutive
quarters and does not extend beyond the maturity of the Series C
Debentures. Upon the termination of any such Extension Period and the
payment of all amounts then due on any Interest Payment Date (as defined
herein), PacifiCorp may elect to begin a new Extension Period subject to
the requirements set forth herein. If interest payments on the Series C
Debentures are so deferred, Distributions on the Series A Preferred
Securities will also be deferred and PacifiCorp will not be permitted,
subject to certain exceptions set forth herein, to declare or pay any cash
distributions with respect to PacifiCorp's capital stock or debt securities
that rank pari passu with or junior to the Series C Debentures. During an
Extension Period, interest on the Series C Debentures will continue to
accrue (and the amount of Distributions to which holders of the Series A
Preferred Securities are entitled will accumulate at the rate of ____% per
annum, compounded quarterly) and holders of Series A Preferred Securities
will be required to accrue interest income for United States federal income
tax purposes in advance of receipt of cash related to such interest income.
See "Certain Terms of Series C Debentures--Option to Extend Interest
Payment Period" and "Certain Federal Income Tax Considerations--Potential
Extension of Interest Payment Period and Original Issue Discount."
PacifiCorp has, through the Series A Guarantee, the Trust
Agreement, the Series C Debentures, the Indenture and the Expense Agreement
(each as defined herein), taken together, fully, irrevocably and
unconditionally guaranteed all of PacifiCorp Capital I's obligations under
the Series A Preferred Securities. The Series A Guarantee of PacifiCorp
guarantees the payment of Distributions and payments on liquidation or
redemption of the Series A Preferred Securities, but only in each case to
the extent of funds held by PacifiCorp Capital I, as described herein (the
"Series A Guarantee"). See "Description of Guarantee" in the accompanying
Prospectus. If PacifiCorp does not make interest payments on the Series C
Debentures held by PacifiCorp Capital I, PacifiCorp Capital I will have
insufficient funds to pay Distributions on the Series A
S-2
<PAGE>
Preferred Securities. The Series A Guarantee does not cover payment of
Distributions when PacifiCorp Capital I does not have sufficient funds to
pay such Distributions. The obligations of PacifiCorp under the Series A
Guarantee and the Series C Debentures are subordinate and junior in right
of payment to all Senior Indebtedness (as defined in "Description of Junior
Subordinated Debentures--Subordination" in the accompanying Prospectus) of
PacifiCorp.
The Series A Preferred Securities are subject to mandatory
redemption, in whole or in part, upon repayment of the Series C Debentures
at maturity or their earlier redemption in an amount equal to the amount of
related Series C Debentures maturing or being redeemed at a redemption
price equal to the aggregate liquidation preference of such Series A
Preferred Securities plus accumulated and unpaid Distributions thereon to
the date of redemption. The Series C Debentures are redeemable prior to
maturity at the option of PacifiCorp (i) on or after May __, 2001, in whole
at any time or in part from time to time, at a redemption price equal to
the accrued and unpaid interest on the Series C Debentures so redeemed to
the date fixed for redemption, plus 100% of the principal amount thereof,
or (ii) at any time, in whole (but not in part), upon the occurrence and
continuation of a Special Event (as defined herein), at a redemption price
equal to the accrued and unpaid interest on the Series C Debentures so
redeemed to the date fixed for redemption, plus 100% of the principal
amount thereof, in each case subject to the further conditions described
under "Description of Junior Subordinated Debentures--Redemption" and
"Description of Corresponding Junior Subordinated Debentures-- Optional
Redemption" in the accompanying Prospectus.
At any time, PacifiCorp will have the right to terminate
PacifiCorp Capital I and cause the Series C Debentures to be distributed to
the holders of the Series A Preferred Securities in liquidation of
PacifiCorp Capital I. See "Certain Terms of Series A Preferred Securities--
Distribution of Series C Debentures."
The Series C Debentures are subordinate and junior in right of
payment to all Senior Indebtedness of PacifiCorp. As of March 31, 1996,
PacifiCorp had approximately $3.7 billion aggregate principal amount of
Senior Indebtedness outstanding. The terms of the Series C Debentures place
no limitation on the amount of Senior Indebtedness that may be incurred by
PacifiCorp. In addition, the Series C Debentures will be effectively
subordinated to all existing and future liabilities of PacifiCorp's
subsidiaries, and holders of Series C Debentures should look only to the
assets of PacifiCorp for payments on Series C Debentures. See "Description
of Junior Subordinated Debentures--Subordination" in the accompanying
Prospectus.
In the event of the termination of PacifiCorp Capital I, after
satisfaction of creditors of PacifiCorp Capital I as provided by applicable
law, the holders of the Series A Preferred Securities will be entitled to
receive a liquidation preference of $25 per Series A Preferred Security
plus accumulated and unpaid Distributions thereon to the date of payment,
which may be in the form of a distribution of such amount in Series C
Debentures, subject to certain exceptions. See "Description of Preferred
Securities--Liquidation Distribution Upon Termination" in the accompanying
Prospectus.
S-3
<PAGE>
PacifiCorp Capital I intends to list the Series A Preferred
Securities on the New York Stock Exchange (the "NYSE"). If the Series C
Debentures are distributed to the holders of Series A Preferred Securities
upon the liquidation of PacifiCorp Capital I, PacifiCorp will use its best
efforts to list the Series C Debentures on the NYSE or such other stock
exchanges or other organizations, if any, on which the Series A Preferred
Securities are then listed.
The Series A Preferred Securities will be represented by global
certificates registered In the name of The Depository Trust Company ("DTC")
or its nominee. Beneficial interests in the Series A Preferred Securities
will be shown on, and transfers thereof will be effected only through,
records maintained by participants in DTC. Except as described in the
accompanying Prospectus, Series A Preferred Securities in certificated form
will not be issued in exchange for the global certificates. See
"Description of Preferred Securities--Book-entry Issuance" in the
accompanying Prospectus.
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER
ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET
PRICE OF THE SERIES A PREFERRED SECURITIES AT LEVELS ABOVE THOSE
WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE OR
OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT
ANY TIME.
---------------------
S-4
<PAGE>
The following information supplements and should be read in
conjunction with the information contained in the accompanying Prospectus.
As used herein, (i) the "Indenture" means the Indenture, as amended and
supplemented from time to time, including the Third Supplemental Indenture
relating to the Series C Debentures, between PacifiCorp and The Bank of New
York, as trustee (the "Debenture Trustee"), and (ii) the "Trust Agreement"
means the Amended and Restated Trust Agreement among PacifiCorp, as
Depositor, The Bank of New York, as Property Trustee (the "Property
Trustee"), The Bank of New York (Delaware), as Delaware Trustee (the
"Delaware Trustee"), and the Administrative Trustees named therein
(collectively, with the Property Trustee and the Delaware Trustee, the
"Issuer Trustees"). Each of the other capitalized terms used in this
Prospectus Supplement has the meaning set forth in this Prospectus
Supplement or in the accompanying Prospectus.
RISK FACTORS
Prospective purchasers of the Series A Preferred Securities should
carefully review the information contained elsewhere in this Prospectus
Supplement and in the accompanying Prospectus and should particularly
consider the following matters.
Ranking of Subordinated Obligations Under the Series A
Guarantee and the Series C Debentures
The obligations of PacifiCorp under the Series A Guarantee issued
by PacifiCorp for the benefit of the holders of Series A Preferred
Securities are unsecured and rank subordinate and junior in right of
payment to all Senior Indebtedness of PacifiCorp. The obligations of
PacifiCorp under the Series C Debentures are subordinate and junior in
right of payment to all such Senior Indebtedness. At March 31, 1996, the
Senior Indebtedness of PacifiCorp aggregated approximately $3.7 billion. In
addition, the Series C Debentures will be effectively subordinated to all
existing and future liabilities of PacifiCorp's subsidiaries, and holders
of Series C Debentures should look only to the assets of PacifiCorp for
payments on the Series C Debentures. None of the Indenture, the Series A
Guarantee or the Trust Agreement place any limitation on the amount of
secured or unsecured debt, including Senior Indebtedness that may be
incurred by PacifiCorp. See "Description of Guarantee--Status of the
Guarantee" and "Description of Junior Subordinated
Debentures--Subordination" in the accompanying Prospectus.
The ability of PacifiCorp Capital I to pay amounts due on the
Series A Preferred Securities is solely dependent upon PacifiCorp making
payments on the Series C Debentures as and when required.
S-5
<PAGE>
Option to Extend Interest Payment Period; Tax Consequences;
Potential Market Volatility During Extension Period
PacifiCorp has the right under the Indenture to defer the payment
of interest on the Series C Debentures at any time or from time to time for
one or more Extension Periods, each of which, together with all previous
and further extensions of such Extension Period prior to its termination,
does not exceed 20 consecutive quarters and does not extend beyond the
maturity of the Series C Debentures. As a consequence of any such election,
quarterly Distributions on the Series A Preferred Securities by PacifiCorp
Capital I will be deferred (and the amount of Distributions to which
holders of the Series A Preferred Securities are entitled will continue to
accumulate at the rate of ____% per annum, compounded quarterly) during any
such Extension Period. During any such Extension Period, PacifiCorp may
not, and may not permit any subsidiary of PacifiCorp to, (i) declare, set
aside or pay any dividend or distribution on, or repurchase, redeem, or
otherwise acquire or make any sinking fund payment with respect to, any
shares of PacifiCorp's capital stock or (ii) make any payment of principal,
interest or premium, if any, on or repay, repurchase or redeem any debt
securities (including other Junior Subordinated Debentures) that rank pari
passu with or junior in interest to the Series C Debentures or make any
guarantee payments with respect to the foregoing (other than (a) dividends
or distributions in shares of its capital stock or in rights to acquire
shares of its capital stock, (b) conversions into or exchanges for shares
of its capital stock, (c) redemptions, purchases or other acquisitions of
shares of its capital stock made for the purpose of an employee incentive
plan or benefit plan of PacifiCorp or any of its subsidiaries and mandatory
redemptions or sinking fund payments with respect to any series of
Preferred Stock of PacifiCorp that are subject to mandatory redemption or
sinking fund requirements, provided that the aggregate stated value of all
such series outstanding at the time of any such payment does not exceed
five percent of the aggregate of (1) the total principal amount of all
bonds or other securities representing secured indebtedness issued or
assumed by PacifiCorp and then outstanding and (2) the capital and surplus
of PacifiCorp to be stated on the books of account of PacifiCorp 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, and (d) payments under any
guarantee by PacifiCorp with respect to any securities of a subsidiary of
PacifiCorp, provided that the proceeds from the issuance of such securities
were used to purchase Junior Subordinated Debentures of any series under
the Indenture). Upon the termination of any Extension Period and the
payment of all amounts then due on any Interest Payment Date, PacifiCorp
may elect to begin a new Extension Period subject to the above
requirements. Consequently, there could be multiple Extension Periods of
varying lengths throughout the term of the Series C Debentures. See
"Certain Terms of the Series A Preferred Securities--Distributions" and
"Certain Terms of the Series C Debentures--Option to Extend Interest
Payment Period."
Should an Extension Period occur, a holder of Series A Preferred
Securities will continue to accrue interest income in respect of its pro
rata share of the Series C Debentures held by PacifiCorp Capital I for
United States federal income tax purposes. As a result, a holder of
S-6
<PAGE>
Series A Preferred Securities will include such interest in gross income
(as original issue discount) for United States federal income tax purposes
in advance of the receipt of cash, and will not receive the cash related to
such income from PacifiCorp Capital I if the holder disposes of the Series
A Preferred Securities prior to the record date for the payment of
Distributions. See "Certain Federal Income Tax Considerations--Potential
Extension of Interest Payment Period and Original Issue Discount" and
"--Sale or Redemption of Series A Preferred Securities."
PacifiCorp has no current intention of exercising its right to
defer payments of interest by extending the interest payment period on the
Series C Debentures. However, should PacifiCorp elect to exercise such
right in the future, the market price of the Series A Preferred Securities
is likely to be affected. A holder that disposes of its Series A Preferred
Securities during an Extension Period, therefore, might not receive the
same return on its investment as a holder that continues to hold its Series
A Preferred Securities. In addition, as a result of the existence of
PacifiCorp's right to defer interest payments, the market price of the
Series A Preferred Securities (which represent a preferred undivided
beneficial interest in the Series C Debentures) may be more volatile than
the market prices of other securities on which original issue discount
accrues that are not subject to such deferrals.
Special Event Redemption
Upon the occurrence and continuation of a Special Event, as
described in "Description of Preferred Securities--Redemption or
Exchange--Special Event Redemption or Distribution of Corresponding Junior
Subordinated Debentures" in the accompanying Prospectus, PacifiCorp has the
right to redeem the Series C Debentures in whole (but not in part) within
90 days following the occurrence of such Special Event and therefore cause
a mandatory redemption of the Series A Preferred Securities at the
applicable redemption price. See "Description of Preferred
Securities--Redemption or Exchange--Special Event Redemption or
Distribution of Corresponding Junior Subordinated Debentures" in the
accompanying Prospectus.
Under current United States federal income tax law, such a
redemption of the Series A Preferred Securities would constitute a taxable
event to the holders thereof. See "Certain Federal Income Tax
Consequences--Sale or Redemption of Series A Preferred Securities."
There can be no assurance as to the market prices for Series A
Preferred Securities or Series C Debentures that may be distributed in
exchange for Series A Preferred Securities if a liquidation of PacifiCorp
Capital I occurs. Accordingly, the Series A Preferred Securities that an
investor may purchase, whether pursuant to the offer made hereby or in the
secondary market, or the Series C Debentures that a holder of Series A
Preferred Securities may receive on liquidation of PacifiCorp Capital I,
may trade at a discount to the price that the investor paid to purchase the
Series A Preferred Securities offered hereby. Holders of Series A Preferred
Securities may receive Series C Debentures upon liquidation of PacifiCorp
Capital I and prospective purchasers of Series A Preferred Securities are
also making an investment decision with regard to the Series C Debentures
and should carefully review all the information regarding the Series C
Debentures contained herein. See "Description of the Preferred Securities--
S-7
<PAGE>
Redemption or Exchange--Special Event Redemption or Distribution of
Corresponding Junior Subordinated Debentures" and "Description of the
Corresponding Junior Subordinated Debentures--General" in the accompanying
Prospectus.
Possible Tax Law Changes
On March 19, 1996, President Clinton released the proposed Revenue
Reconciliation Bill of 1996 (the "Bill"). The Bill would, among other
things, generally deny interest deductions for interest on an instrument,
issued by a corporation, that has a maximum weighted average maturity of
more than 40 years. The Bill also would generally deny interest deductions
for interest on an instrument, issued by a corporation, that has a maximum
term of more than 20 years and that is not shown as indebtedness on the
separate balance sheet of the issuer or, where the instrument is issued to
a related party (other than a corporation), where the holder or some other
related party issues a related instrument that is not shown as indebtedness
on the issuer's consolidated balance sheet. The above-described provisions
of the Bill were proposed to be effective generally for instruments issued
on or after December 7, 1995. If either provision were to apply to the
Series C Debentures, PacifiCorp would be unable to deduct interest on the
Series C Debentures.
On March 29, 1996, the Chairmen of the Senate Finance and the
House Ways and Means Committees issued a joint statement to the effect that
it was their intention that the effective date of the President's
legislative proposals, if adopted, would be no earlier than the date of
"appropriate Congressional action." As discussed below under "Certain
Federal Income Tax Considerations--Classification of the Series C
Debentures", PacifiCorp believes and intends to take the position that
interest on the Series C Debentures is deductible for United States federal
income tax purposes. There can be no assurance, however, that current or
future legislative proposals or final legislation will not affect the
ability of PacifiCorp to deduct interest on the Series C Debentures. If
legislation were enacted limiting, in whole or in part, deductibility by
PacifiCorp of interest on the Series C Debentures for United States federal
income tax purposes, such enactment would give rise to a Tax Event, which
would permit PacifiCorp to cause a redemption of the Series A Preferred
Securities, as described more fully in the accompanying Prospectus under
"Description of Preferred Securities--Redemption or Exchange--Special Event
Redemption or Distribution of Corresponding Junior Subordinated
Debentures."
Rights Under the Series A Guarantee
The Series A Guarantee will be qualified as an indenture under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). The
Bank of New York will act as the indenture trustee under the Series A
Guarantee (the "Guarantee Trustee") for the purposes of compliance with the
Trust Indenture Act and will hold the Series A Guarantee for the benefit of
the holders of the Series A Preferred Securities. The Bank of New York also
will act as Debenture Trustee for the Series C Debentures and as Property
Trustee under the Trust Agreement. The Series A Guarantee guarantees to the
holders of the Series A Preferred Securities the following payments, to the
extent not paid by PacifiCorp Capital I: (i) any
S-8
<PAGE>
accumulated and unpaid Distributions required to be paid on the Series A
Preferred Securities, to the extent that PacifiCorp Capital I has funds on
hand available therefor, (ii) the redemption price with respect to any
Series A Preferred Securities called for redemption to the extent that
PacifiCorp Capital I has funds on hand available therefor, and (iii) upon a
voluntary or involuntary dissolution, winding up or liquidation of
PacifiCorp Capital I (unless the Series C Debentures are distributed to
holders of the Series A Preferred Securities), the lesser of (a) the
aggregate of the liquidation preference and all accumulated and unpaid
Distributions to the date of payment to the extent PacifiCorp Capital I has
funds on hand available therefor and (b) the amount of assets of PacifiCorp
Capital I remaining available for distribution to holders of the Series A
Preferred Securities. If PacifiCorp were to default on its obligation to
pay amounts payable under the Series C Debentures, PacifiCorp Capital I
would lack funds for the payment of Distributions or amounts payable on
redemption of the Series A Preferred Securities or otherwise, and, in such
event, holders of the Series A Preferred Securities would not be able to
rely upon the Series A Guarantee for payment of such amounts. Instead,
holders of the Series A Preferred Securities would have the limited
enforcement rights described under "Description of Preferred
Securities--Events of Default; Notice" in the accompanying Prospectus. See
"Description of Guarantee" and "Description of Corresponding Junior
Subordinated Debentures" in the accompanying Prospectus. The Trust
Agreement provides that each holder of Series A Preferred Securities by
acceptance thereof agrees to the provisions of the Series A Guarantee and
the Indenture.
Limited Voting Rights
Holders of Series A Preferred Securities will generally have
limited voting rights relating only to the modification of the Series A
Preferred Securities and the dissolution, winding-up or liquidation of
PacifiCorp Capital I. Holders of Series A Preferred Securities will not be
entitled to vote to appoint, remove or replace the Property Trustee or the
Delaware Trustee, which voting rights are vested exclusively in the holder
of the Series A Common Securities except upon the occurrence of certain
events. The Issuer Trustees and PacifiCorp may amend the Trust Agreement
without the consent of holders of Series A Preferred Securities to ensure
that PacifiCorp Capital I will be classified for United States federal
income tax purposes as a grantor trust, even if such action adversely
affects the interests of such holders in a material respect. See
"Description of Preferred Securities--Voting Rights; Amendment of Trust
Agreement" and "--Removal of Issuer Trustees" in the accompanying
Prospectus.
Trading Characteristics of Series A Preferred Securities
PacifiCorp Capital I intends to list the Series A Preferred
Securities on the NYSE. The Series A Preferred Securities may trade at
prices that do not fully reflect the value of accrued but unpaid interest
with respect to the underlying Series C Debentures. A holder of Series A
Preferred Securities that disposes of its Series A Preferred Securities
between record dates for payments of Distributions (and consequently does
not receive a Distribution from PacifiCorp Capital I for the period prior
to such disposition) will nevertheless be required to include as ordinary
income, accrued but unpaid interest on the Series C Debentures through the
date of
S-9
<PAGE>
disposition and to add such amount to its adjusted tax basis in the Series
A Preferred Securities disposed of. Such holder will recognize a capital
loss to the extent the selling price (which may not fully reflect the
amount of accrued but unpaid interest) is less than its adjusted tax basis
(which will reflect accrued but unpaid interest). Subject to certain
limited exceptions, capital losses cannot be applied to offset ordinary
income for United States federal income tax purposes. See "Certain Federal
Income Tax Considerations--Sale or Redemption of Series A Preferred
Securities."
PACIFICORP CAPITAL I
PacifiCorp Capital I is a statutory business trust created under
Delaware law pursuant to (i) a trust agreement executed by PacifiCorp, as
Depositor, The Bank of New York, as Property Trustee, The Bank of New York
(Delaware), as Delaware Trustee and the Administrative Trustee named
therein (which trust agreement was later amended and restated in the form
of the Trust Agreement) and (ii) the filing of a certificate of trust with
the Delaware Secretary of State on May ____, 1996. PacifiCorp Capital I's
business and affairs are conducted by the Issuer Trustees: The Bank of New
York, as Property Trustee, The Bank of New York (Delaware), as Delaware
Trustee, and two individual Administrative Trustees who are employees or
officers of or affiliated with PacifiCorp. PacifiCorp Capital I exists for
the exclusive purposes of (i) issuing and selling the Series A Preferred
Securities and Series A Common Securities, (ii) using the proceeds from the
sale of Series A Preferred Securities and the Series A Common Securities to
acquire Series C Debentures issued by PacifiCorp and (iii) engaging in only
those other activities necessary, convenient or incidental thereto.
Accordingly, the Series C Debentures will be the sole assets of PacifiCorp
Capital I, and payments under the Series C Debentures will be the sole
revenue of PacifiCorp Capital I. All of the Series A Common Securities will
be owned by PacifiCorp. The Series A Common Securities will rank pari
passu, and payments will be made thereon pro rata, with the Series A
Preferred Securities, except that upon the occurrence and continuance of an
event of default under the Trust Agreement resulting from an Event of
Default under the Indenture, the rights of PacifiCorp as holder of the
Series A Common Securities to payment in respect of Distributions and
payments upon liquidation, redemption or otherwise will be subordinated to
the rights of the holders of the Series A Preferred Securities. See
"Description of Preferred Securities--Subordination of Common Securities"
in the accompanying Prospectus. PacifiCorp will acquire Series A Common
Securities having an aggregate liquidation amount equal to 3% of the total
capital of PacifiCorp Capital I. PacifiCorp Capital I has a term of 45
years, but may terminate earlier as provided in the Trust Agreement. The
principal executive office of PacifiCorp Capital I is 700 NE Multnomah,
Suite 1600, Portland, OR 97232, Attention: Secretary, and its telephone
number is (503) 731-2000. See "The Issuer Trusts" in the accompanying
Prospectus.
PACIFICORP
PacifiCorp 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
S-10
<PAGE>
PacifiCorp. PacifiCorp is the indirect owner, through PacifiCorp Holdings,
Inc. (a wholly-owned subsidiary) ("Holdings"), 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.
PacifiCorp 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 570,000
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. Holdings 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 PacifiCorp are located at 700
NE Multnomah, Suite 1600, Portland, Oregon 97232; the telephone number is
(503) 731-2000.
USE OF PROCEEDS
All of the proceeds from the sale of Series A Preferred Securities
will be invested by PacifiCorp Capital I in Series C Debentures. The
proceeds from the sale of such Series C Debentures will initially become
part of the general funds of PacifiCorp and will be used to repay all or a
portion of PacifiCorp's short-term borrowings outstanding at the time of
issuance. PacifiCorp is considering the retirement of long-term debt and
other senior securities in connection with which it may incur additional
short-term indebtedness.
S-11
<PAGE>
SELECTED FINANCIAL INFORMATION
(Dollar amounts in millions, except per share amounts)
The selected financial data of PacifiCorp for the years ended
December 31, 1993, 1994 and 1995 and the three-months ended March 31, 1995
and 1996 set forth below were derived from and should be read in
conjunction with the consolidated financial statements and related notes of
PacifiCorp and subsidiaries incorporated by reference in the accompanying
Prospectus. The consolidated financial statements for the three-year period
ended December 31, 1995 have been audited by Deloitte & Touche LLP,
independent auditors, and the reports of Deloitte & Touche LLP thereon are
incorporated by reference in the accompanying Prospectus.
<TABLE>
<CAPTION>
Three
Twelve Months Ended Months Ended
December 31, March 31
------------------------------------ ------------
1993 1994 1995 1995 1996
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Income Statement Data:
Revenues
Electric................................... $2,507 $2,648 $2,616 $649 $705
Pacific Telecom............................ 702 705 649 182 125
Powercor................................... -- -- 26 -- 140
Other(1)(2)................................ 196 154 134 28 35
------ ------ ------ ----- ------
Total.................................... 3,405 3,507 3,425 859 1,005
Income from Operations(3)
Electric................................... 784 819 801 209 220
Pacific Telecom............................ 141 165 165 40 35
Powercor................................... -- -- 6 -- 36
Other(1)(2)................................ 44 38 84 17 21
------ ------ ------ ----- -----
Total.................................... 969 1,022 1,056 266 312
Income from Continuing Operations............. 423 468 505 115 130
Discontinued Operations (4)................... 52 -- -- -- --
Cumulative Effect on Prior Years of a Change
in Accounting for Income Taxes............. 4 -- -- -- --
Net Income.................................... 479 468 505 115 130
Preferred Stock Dividend Requirements......... 39 40 39 10 9
Earnings Contribution on Common Stock
Electric................................... 323 340 276(5) 81 86
Pacific Telecom............................ 51 70 103 14 16
Powercor................................... -- -- 1 -- 11
Other (1).................................. 10 18 86(5) 10 8
Discontinued Operations (4)................... 52 -- -- -- --
Cumulative Effect on Prior Years of a Change
in Accounting for Income Taxes............. 4 -- -- -- --
------ ------ ------ ------ ------
Total.................................... $ 440 $ 428 $ 466 $ 105 $ 121
Average Common Shares Outstanding
(Thousands)................................ 274,551 282,912 284,272 284,260 286,490
Earnings per Common Share:
Continuing Operations...................... $ 1.40 $ 1.51 $ 1.64 .37 .42
Discontinued Operations (4)................ .19 -- -- -- --
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<PAGE>
Cumulative Effect on Prior Years of a
Change in Accounting for
Income Taxes........................... .01 -- -- -- --
------ ------ ------ ------ ------
Total.................................. $ 1.60 $ 1.51 $ 1.64 .37 .42
Dividends Declared per Common Share........... $ 1.08 $ 1.08 $ 1.08 .27 .27
</TABLE>
<TABLE>
<CAPTION>
March 31, 1996
----------------------------------------------------
Actual As Adjusted (6)
------------------ -------------------
Amount % Amount %
------ ----- ------ -----
(unaudited) (unaudited)
<S> <C> <C> <C> <C>
Capital Structure:
Long-Term Debt and Capital
Lease Obligations...................................... $5,170 54% $5,170 %
Company Obligated Mandatorily Redeemable
Preferred Securities of Subsidiary Trust Holding
Solely Parent Junior Subordinated Debentures (7)....... -- --
Preferred Stock.......................................... 312 4 312
Preferred Stock Subject to
Mandatory Redemption................................... 219 2 219
Common Equity............................................ 3,861 40
------ --- ------ ---
Total.................................................. $9,562 100% $ 100%
Short-Term Debt.............................................. $ 515 $
Long-term Debt and Capital Lease
Obligations Currently Maturing........................... $ 236 $ 236
- --------------------
<FN>
(1) Other includes the operations of Pacific Generation Company and PFS,
as well as the activities of Holdings.
(2) Certain amounts from prior years have been reclassified to conform
with the 1996 method of presentation. These reclassifications had no
effect on previously reported consolidated net income.
(3) Income before income taxes, interest, other nonoperating items,
discontinued operations and cumulative effect of a change in an
accounting principle.
(4) Discontinued operations represents PacifiCorp's interests in an
international communications subsidiary of Pacific Telecom, the
disposition of which was completed in September 1993.
(5) PacifiCorp reached a tax settlement with the U.S. Internal Revenue
Service for the tax years 1983-1988, including the issues relating to
the 1983 abandonment of PacifiCorp's interest in Washington Public
Power Supply System Unit 3. The settlement had no effect on
consolidated net income, although it had the effect of reducing
Electric earnings contribution by $32 million and increasing Other
earnings contribution by $32 million.
(6) Adjusted to give effect to the consummation of the offering of
____________ Preferred Securities and the application of the
estimated net proceeds therefrom to repay short-term debt.
(7) As described herein, the assets of PacifiCorp Capital I will consist
solely of $_________ of Series C Debentures, issued by PacifiCorp to
PacifiCorp Capital I, and certain rights under the Series A
Guarantee. PacifiCorp owns all of the Series A Common Securities of
PacifiCorp Capital I.
</FN>
</TABLE>
S-13
<PAGE>
ACCOUNTING TREATMENT
For financial reporting purposes, PacifiCorp Capital I will be
treated as a subsidiary of PacifiCorp and, accordingly, the accounts of
PacifiCorp Capital I will be included in the consolidated financial
statements of PacifiCorp. The Series A Preferred Securities will be
presented as a separate line item in the consolidated balance sheet of
PacifiCorp and appropriate disclosures about the Series A Preferred
Securities, the Series A Guarantee and the Series C Debentures will be
included in the notes to the consolidated financial statements. For
financial reporting purposes, PacifiCorp will record Distributions payable
on the Series A Preferred Securities as an expense.
S-14
<PAGE>
CERTAIN TERMS OF SERIES A PREFERRED SECURITIES
General
The following summary of certain terms and provisions of the
Series A Preferred Securities supplements the description of the terms and
provisions of the Preferred Securities set forth in the accompanying
Prospectus under the heading "Description of Preferred Securities," to
which description reference is hereby made. This summary of certain terms
and provisions of the Series A Preferred Securities does not purport to be
complete and is subject to, and qualified in its entirety by reference to,
the Trust Agreement. The form of the Trust Agreement has been filed as an
exhibit to the Registration Statement of which this Prospectus Supplement
and accompanying Prospectus is a part.
Distributions
The Series A Preferred Securities represent undivided beneficial
interests in the assets of PacifiCorp Capital I, and Distributions on each
Series A Preferred Security will be payable at the annual rate of ____% of
the stated liquidation preference of $25, payable quarterly in arrears on
March 31, June 30, September 30 and December 31 of each year. Distributions
will accumulate from May __, 1996, the date of original issuance. The first
Distribution payment date for the Series A Preferred Securities will be
June 30, 1996. The amount of Distributions payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months and, for
any period shorter than a full calendar month, on the basis of the actual
number of days elapsed in such period. In the event that any date on which
Distributions are payable on the Series A Preferred Securities is not a
Business Day, then payment of the Distributions payable on such date will
be made on the next succeeding day that is a Business Day (and without any
additional Distributions or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar year,
such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on the date such
payment was originally payable. Accrued and unpaid distributions will
accumulate additional Distributions thereon ("Additional Amounts") after
the payment date therefor in an amount equal to the additional interest
accrued on interest in arrears on the Series C Debentures. See "Certain
Terms of Series C Debentures--General." The term "Distributions" as used
herein shall include any such Additional Amounts. See "Description of
Preferred Securities--Distributions" in the accompanying Prospectus.
So long as no Event of Default under the Indenture has occurred
and is continuing, PacifiCorp has the right under the Indenture to defer
the payment of interest on the Series C Debentures at any time or from time
to time for one or more Extension Periods, each of which, together with all
previous and further extensions of such Extension Period prior to its
termination, does not exceed 20 consecutive quarters and does not extend
beyond the maturity of the Series C Debentures. As a consequence of any
such election, quarterly Distributions on the Series A Preferred Securities
will be deferred by PacifiCorp Capital I during any such
S-15
<PAGE>
Extension Period. Distributions to which holders of the Series A Preferred
Securities are entitled will accumulate additional Distributions thereon at
the rate of ____% per annum thereof, compounded quarterly from the relevant
payment date for such Distributions. During any such Extension Period,
PacifiCorp may not, and may not permit any subsidiary of PacifiCorp to, (i)
declare, set aside or pay any dividend or distribution on, or repurchase,
redeem, or otherwise acquire or make any sinking fund payment with respect
to, any shares of PacifiCorp's capital stock or (ii) make any payment of
principal, interest or premium, if any, on or repay, repurchase or redeem
any debt securities that rank pari passu with or junior in interest to the
Corresponding Junior Subordinated Debentures or make any guarantee payments
with respect to the foregoing (other than (a) dividends or distributions in
shares of its capital stock or in rights to acquire shares of its capital
stock, (b) conversions into or exchanges for shares of its capital stock,
(c) redemptions, purchases or other acquisitions of shares of its capital
stock made for the purpose of an employee incentive plan or benefit plan of
PacifiCorp or any of its subsidiaries and mandatory redemptions or sinking
fund payments with respect to any series of Preferred Stock of PacifiCorp
that are subject to mandatory redemption or sinking fund requirements,
provided that the aggregate stated value of all such series outstanding at
the time of any such payment does not exceed five percent of the aggregate
of (1) the total principal amount of all bonds or other securities
representing secured indebtedness issued or assumed by PacifiCorp and then
outstanding and (2) the capital and surplus of PacifiCorp to be stated on
the books of account of PacifiCorp 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, and (d) payments under any guarantee by PacifiCorp with respect
to any securities of a subsidiary of PacifiCorp, provided that the proceeds
from the issuance of such securities were used to purchase Junior
Subordinated Debentures of any series under the Indenture). Upon the
termination of any such Extension Period and the payment of all amounts
then due on any Interest Payment Date, PacifiCorp may elect to begin a new
Extension Period, subject to the above requirements. See "Certain Terms of
the Series C Debentures--Option to Extend Interest Payment Period" and
"Certain Federal Income Tax Consequences--Potential Extension of Interest
Payment Period and Original Issue Discount."
PacifiCorp has no current intention of exercising its right to
defer payments of interest by extending the interest payment period on the
Series C Debentures.
Redemption
Upon the repayment or redemption, in whole or in part, of the
Series C Debentures, whether at maturity or upon earlier redemption as
provided in the Indenture, the proceeds from such repayment or redemption
shall be applied by the Property Trustee to redeem a Like Amount of the
Series A Preferred Securities, upon not less than 30 nor more than 60 days,
notice prior to the date fixed for repayment or redemption (the "Redemption
Date"), at a redemption price equal to the aggregate liquidation preference
of such Series A Preferred Securities plus accumulated and unpaid
Distributions thereon to the Redemption Date (the
S-16
<PAGE>
"Redemption Price"). See "Description of Preferred Securities--Redemption
or Exchange" in the accompanying Prospectus and "Certain Terms of Series C
Debentures--Redemption".
PacifiCorp will have the right to redeem the Series C Debentures
(i) on or after May __, 2001, in whole at any time or in part from time to
time, at a redemption price equal to the accrued and unpaid interest on the
Series C Debentures so redeemed to the date fixed for redemption, plus 100%
of the principal amount thereof or (ii) at any time, in whole (but not in
part), upon the occurrence of and continuation of a Tax Event or an
Investment Company Event (each as defined in the accompanying Prospectus,
and as so collectively defined, a "Special Event"), at a redemption price
equal to the accrued and unpaid interest on the Series C Debentures so
redeemed to the date fixed for redemption, plus 100% of the principal
amount thereof, in each case subject to conditions described under
"Description of Junior Subordinated Debentures--Redemption or Exchange" and
"Description of Corresponding Junior Subordinated Debentures--Optional
Redemption" in the accompanying Prospectus.
Distribution of Series C Debentures
At any time, PacifiCorp will have the right to terminate
PacifiCorp Capital I and, after satisfaction of the liabilities of
creditors of PacifiCorp Capital I as provided by applicable law, cause the
Series C Debentures to be distributed to the holders of the Series A
Preferred Securities in liquidation of PacifiCorp Capital I. See "Certain
Terms of Series C Debentures-- Distribution of Series C Debentures." Under
current United States federal income tax law, provided PacifiCorp Capital I
is treated as a grantor trust at the time of such distribution, such
distribution would not be a taxable event to holders of the Series A
Preferred Securities. Following the occurrence of a Special Event pursuant
to which PacifiCorp Capital I was determined to be an association taxable
as a corporation, however, such a distribution would be a taxable event to
such holders. See "Certain Federal Income Tax Consequences--Distribution of
Series C Debentures to Holders of Series A Preferred Securities." If
PacifiCorp does not elect to redeem or distribute the Series C Debentures
as described above, the Series A Preferred Securities will remain
outstanding until the repayment of the Series C Debentures.
Liquidation Value
The amount payable on the Series A Preferred Securities in the
event of any liquidation of PacifiCorp Capital I is $25 per Series A
Preferred Security plus accumulated and unpaid Distributions, which may be
in the form of a distribution of such amount in Series C Debentures,
subject to certain exceptions. See "Description of Preferred
Securities--Liquidation Distribution Upon Termination" in the accompanying
Prospectus.
S-17
<PAGE>
CERTAIN TERMS OF SERIES C DEBENTURES
General
The following summary of certain terms and provisions of the
Series C Debentures supplements the description of the terms and provisions
of the Corresponding Junior Subordinated Debentures set forth in the
accompanying Prospectus under the headings "Description of Junior
Subordinated Debentures" and "Description of Corresponding Junior
Subordinated Debentures," to which description reference is hereby made.
The summary of certain terms and provisions of the Series C Debentures set
forth below does not purport to be complete and is subject to, and
qualified in its entirety by reference to, the Indenture. The Indenture has
been filed as an exhibit to the Registration Statement of which this
Prospectus Supplement and accompanying Prospectus is a part.
Concurrently with the issuance of the Series A Preferred
Securities, PacifiCorp Capital I will invest the proceeds thereof and the
consideration paid by PacifiCorp for the Series A Common Securities in the
Series C Debentures issued by PacifiCorp. The Series C Debentures will bear
interest at the annual rate of ____% of the principal amount thereof,
payable quarterly in arrears on March 31, June 30, September 30 and
December 31 of each year (each, an "Interest Payment Date"), commencing
June 30, 1996, to the person in whose name each Series C Debenture is
registered, subject to certain exceptions, at the close of business on the
fifteenth day of the last month of each calendar quarter.
It is anticipated that, until the liquidation, if any, of
PacifiCorp Capital I, each Series C Debenture will be held in the name of
the Property Trustee in trust for the benefit of the holders of the Series
A Preferred Securities. The amount of interest payable for any period will
be computed on the basis of a 360-day year of twelve 30-day months and, for
any period shorter than a full calendar month, on the basis of the actual
number of days elapsed in such period. In the event that any date on which
interest is payable on the Series C Debentures is not a Business Day, then
payment of the interest payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is
in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on the date such payment was originally payable. Accrued
interest that is not paid on the applicable Interest Payment Date will bear
additional interest on the amount thereof (to the extent permitted by law)
at the rate per annum of ____% thereof, compounded quarterly. The term
"interest" as used herein shall include quarterly interest payments,
interest on quarterly interest payments not paid on the applicable Interest
Payment Date and Additional Sums (as defined below), as applicable.
The Series C Debentures will be issued as a series of Junior
Subordinated Debentures under the Indenture. The Series C Debentures will
mature on May __, 2036. The Series C Debentures will be unsecured and will
rank junior and be subordinate in right of payment to all
S-18
<PAGE>
Senior Indebtedness of PacifiCorp. In addition, the Series C Debentures
will be effectively subordinated to all existing and future liabilities of
PacifiCorp's subsidiaries, and holders of Series C Debentures should look
only to the assets of PacifiCorp for payments on the Series C Debentures.
The Indenture does not limit the incurrence or issuance of other secured or
unsecured debt of PacifiCorp, whether under the Indenture, any other
existing or other indenture that PacifiCorp may enter into in the future or
otherwise. See "Description of Junior Subordinated
Debentures--Subordination" in the accompanying Prospectus.
Option to Extend Interest Payment Period
So long as no Event of Default under the Indenture has occurred
and is continuing, PacifiCorp has the right under the Indenture at any time
during the term of the Series C Debentures to defer the payment of interest
at any time or from time to time for one or more Extension Periods, each of
which, together with all previous and further extensions of such Extension
Period prior to its termination, does not exceed 20 consecutive quarters
and does not extend beyond the maturity of the Series C Debentures. At the
end of such Extension Period, PacifiCorp must pay all interest then accrued
and unpaid (together with interest thereon at the annual rate of ____%,
compounded quarterly, to the extent permitted by applicable law). During an
Extension Period, interest will continue to accrue and holders of Series C
Debentures (or holders of Series A Preferred Securities while such series
is outstanding) will be required to accrue interest income for United
States federal income tax purposes. See "Certain Federal Income Tax
Considerations--Potential Extension of Interest Payment Period and Original
Issue Discount."
During any such Extension Period, PacifiCorp may not, and may not
permit any subsidiary of PacifiCorp to, (i) declare, set aside or pay any
dividend or distribution on, or repurchase, redeem, or otherwise acquire or
make any sinking fund payment with respect to, any shares of PacifiCorp's
capital stock or (ii) make any payment of principal, interest or premium,
if any, on or repay, repurchase or redeem any debt securities (including
other Junior Subordinated Debentures) that rank pari passu with or junior
in interest to the Series C Debentures or make any guarantee payments with
respect to the foregoing (other than (a) dividends or distributions in
shares of its capital stock or in rights to acquire shares of its capital
stock, (b) conversions into or exchanges for shares of its capital stock,
(c) redemptions, purchases or other acquisitions of shares of its capital
stock made for the purpose of an employee incentive plan or benefit plan of
PacifiCorp or any of its subsidiaries and mandatory redemptions or sinking
fund payments with respect to any series of Preferred Stock of PacifiCorp
that are subject to mandatory redemption or sinking fund requirements,
provided that the aggregate stated value of all such series outstanding at
the time of any such payment does not exceed five percent of the aggregate
of (1) the total principal amount of all bonds or other securities
representing secured indebtedness issued or assumed by PacifiCorp and then
outstanding and (2) the capital and surplus of PacifiCorp to be stated on
the books of account of PacifiCorp 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
S-19
<PAGE>
fund without regard to the restrictions contained in this provision, and
(d) payments under any guarantee by PacifiCorp with respect to any
securities of a subsidiary of PacifiCorp, provided that the proceeds from
the issuance of such securities were used to purchase Junior Subordinated
Debentures of any series under the Indenture). Upon the termination of any
such Extension Period and the payment of all amounts then due on any
Interest Payment Date, PacifiCorp may elect to begin a new Extension
Period, subject to the above requirements. No interest shall be due and
payable during an Extension Period, except at the end thereof. PacifiCorp
must give the Property Trustee, the Administrative Trustees and the
Debenture Trustee notice of its election of such Extension Period at least
15 Business Days prior to the earlier of (i) the date the Distributions on
the Series A Preferred Securities would have been payable except for the
election to begin such Extension Period and (ii) the date the
Administrative Trustees are required to give notice to the NYSE or other
applicable self-regulatory organization or to holders of such Series A
Preferred Securities of the record date or the date such Distributions are
payable, but in any event not less than one Business Day prior to such
record date. The Administrative Trustees shall give notice of PacifiCorp's
election to begin a new Extension Period to the holders of the Series A
Preferred Securities at least 10 Business Days prior to the date the
Distributions on the Series A Preferred Securities would have been payable
except for the election to begin such Extension Period. See "Description of
Junior Subordinated Debentures--Option to Extend Interest Payment Date" in
the accompanying Prospectus.
Additional Sums
If PacifiCorp Capital I is required to pay any additional taxes,
duties or other governmen tal charges as a result of a Tax Event,
PacifiCorp will pay as additional amounts on the Series C Debentures such
amounts ("Additional Sums") as shall be required so that the Distributions
payable by PacifiCorp Capital I shall not be reduced as a result of any
such additional taxes, duties or other governmental charges, subject to the
conditions described under "Description of Preferred Securities--Redemption
or Exchange--Special Event Redemption or Distribution of Corresponding
Junior Subordinated Debentures" in the accompanying Prospectus.
Redemption
The Series C Debentures are redeemable prior to maturity at the
option of PacifiCorp (i) on or after May __, 2001, in whole at any time or
in part from time to time, at a redemption price equal to the accrued and
unpaid interest on the Series C Debentures so redeemed to the date fixed
for redemption plus 100% of the principal amount thereof or (ii) at any
time, in whole (but not in part), upon the occurrence and continuation of a
Special Event, at a redemption price equal to the accrued and unpaid
interest on the Series C Debentures so redeemed to the date fixed for
redemption, plus 100% of the principal amount thereof, in each case subject
to the further conditions described under "Description of Junior
Subordinated Debentures--Redemption" and "Description of Corresponding
Junior Subordinated Debentures--Optional Redemption" in the accompanying
Prospectus.
S-20
<PAGE>
Distribution of Series C Debentures
Under certain circumstances involving the termination of
PacifiCorp Capital I, Series C Debentures may be distributed to the holders
of the Series A Preferred Securities in liquidation of PacifiCorp Capital I
after satisfaction of liabilities to creditors of PacifiCorp Capital I as
provided by applicable law. If distributed to holders of Series A Preferred
Securities in liquidation, the Series C Debentures will initially be issued
in the form of one or more global securities and DTC, or any successor
depositary for the Series A Preferred Securities, will act as depositary
for the Series C Debentures. It is anticipated that the depositary
arrangements for the Series C Debentures would be substantially identical
to those in effect for the Series A Preferred Securities. If the Series C
Debentures are distributed to the holders of Series A Preferred Securities
upon the liquidation of PacifiCorp Capital I, PacifiCorp will use its best
efforts to list the Series C Debentures on the NYSE or such other stock
exchanges or other organizations, if any, on which the Series A Preferred
Securities are then listed. There can be no assurance as to the market
price of any Series C Debentures that may be distributed to the holders of
Series A Preferred Securities. For a description of DTC and the terms of
the depositary arrangements relating to payments, transfers, voting rights,
redemption and other notices and other matters, see "Description of
Preferred Securities--Book-entry Issuance" in the accompanying Prospectus.
Registration of Series C Debentures
A global security shall be exchangeable for Series C Debentures
registered in the names of persons other than DTC or its nominee only if
(i) DTC notifies PacifiCorp that it is unwilling or unable to continue as a
depository for such global security and no successor depository shall have
been appointed, or if at any time DTC ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, at a time
when DTC is required to be so registered to act as such depository, (ii)
PacifiCorp in its sole discretion determines that such global security
shall be so exchangeable or (iii) there shall have occurred and be
continuing a Debenture Event of Default with respect to such global
security. Any global security that is exchangeable pursuant to the
preceding sentence shall be exchangeable for definitive certificates
registered in such names as DTC shall direct. It is expected that such
instructions will be based upon directions received by DTC from its
Participants with respect to ownership of beneficial interests in such
global security. In the event that Series C Debentures are issued in
definitive form, such Series C Debentures will be in denominations of $25
and integral multiples thereof and may be transferred or exchanged at the
offices described below.
Payments on Series C Debentures represented by a global security
will be made to DTC, as the depositary for the Series C Debentures. In the
event Series C Debentures are issued in definitive form, principal and
interest will be payable, the transfer of the Series C Debentures will be
registrable, and Series C Debentures will be exchangeable for Series C
Debentures of other denominations of a like aggregate principal amount, at
the corporate office of the Debenture Trustee in New York, New York, or at
the offices of any paying agent or transfer agent appointed by PacifiCorp,
provided that payment of interest may be made at the option of
S-21
<PAGE>
PacifiCorp by check mailed to the address of the persons entitled thereto
or by wire transfer as provided under "Description of Junior Subordinated
Debentures--Payment and Paying Agents" in the accompanying Prospectus. In
addition, if the Series C Debentures are issued in certificated form, the
record dates for payment of interest will be the 15th day of the last month
of each calendar quarter. For a description of DTC and the terms of the
depositary arrangements relating to payments, transfers, voting rights,
redemptions and other notices and other matters, see "Description of
Preferred Securities--Book-entry Issuance" in the accompanying Prospectus.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of the principal United States federal
income tax consequences of the purchase, ownership and disposition of
Series A Preferred Securities. This summary only addresses the tax
consequences to a person acquiring Series A Preferred Securities on their
original issue at their original offering price and that is (i) an
individual citizen or resident of the United States, (ii) a corporation or
partnership organized in or under the laws of the United States or any
state thereof or the District of Columbia or (iii) an estate or trust the
income of which is subject to United States federal income tax regardless
of source (a "United States Person"). This summary does not address all tax
consequences that may be applicable to a United States Person that is a
beneficial owner of the Series A Preferred Securities, nor does it address
the tax consequences to (i) persons that are not United States Persons,
(ii) persons subject to special treatment under United States federal
income tax law, such as banks, insurance companies, thrift institutions,
regulated investment companies, real estate investment trusts, tax-exempt
organizations and dealers in securities or currencies, (iii) persons that
will hold Preferred Securities as part of a position in a "straddle" or as
part of a "hedging," "conversion" or other integrated investment
transaction for United States federal income tax purposes, (iv) persons
whose "functional currency" is not the United States dollar or (v) persons
that do not hold the Series A Preferred Securities as capital assets.
The statements of law or legal conclusion set forth in this
summary constitute the opinion of Stoel Rives LLP, counsel to PacifiCorp
and PacifiCorp Capital I. This summary is based upon the Internal Revenue
Code of 1986, as amended (the "Code"), Treasury Regulations, Internal
Revenue Service rulings and pronouncements and judicial decisions now in
effect, all of which are subject to change at any time. Such changes may be
applied retroactively in a manner that could cause the tax consequences to
vary substantially from the consequences described below, possibly
adversely affecting a beneficial owner of a Series A Preferred Security. In
particular, legislation has been proposed that could adversely affect
PacifiCorp's ability to deduct interest on the Series C Debentures, which
would in turn permit PacifiCorp to cause a redemption of the Series A
Preferred Securities. See "--Possible Tax Law Changes." The authorities on
which this summary is based are subject to various interpretations and it
is therefore possible that the United States federal income tax treatment
of the Series A Preferred Securities may differ from the treatment
described below.
S-22
<PAGE>
PROSPECTIVE INVESTORS ARE ADVISED TO CONSULT WITH THEIR OWN TAX
ADVISORS IN LIGHT OF THEIR OWN PARTICULAR CIRCUMSTANCES AS TO THE UNITED
STATES FEDERAL TAX CONSEQUENCES OF PURCHASE, OWNERSHIP AND DISPOSITION OF
SERIES A PREFERRED SECURITIES, AS WELL AS THE EFFECT OF ANY STATE, LOCAL OR
FOREIGN TAX LAWS.
Classification of PacifiCorp Capital I
In connection with the issuance of the Series A Preferred
Securities, Stoel Rives LLP will render its opinion to the effect that,
under then current law and assuming compliance with the terms of the Trust
Agreement and certain other documents, and based on certain facts and
assumptions contained in such opinion, PacifiCorp Capital I will be
classified as a grantor trust and not as an association taxable as a
corporation for United States federal income tax purposes. As a result,
each beneficial owner of a Series A Preferred Security (a "Securityholder")
will be treated as owning an undivided beneficial interest in the Series C
Debentures. Accordingly, each Securityholder will be required to include in
its gross income its pro rata share of the original issue discount accrued
with respect to the Series C Debentures, whether or not cash is actually
distributed to the Securityholders. See "--Potential Extension of Interest
Payment Period and Original Issue Discount." No amount included in income
with respect to the Series A Preferred Securities will be eligible for the
dividends-received deduction.
Classification of the Series C Debentures
Based on the advice of its counsel, PacifiCorp believes and
intends to take the position that the Series C Debentures will constitute
indebtedness for United States federal income tax purposes. No assurance
can be given that such position will not be challenged by the Internal
Revenue Service or, if so, that such challenge will not be successful. By
purchasing and accepting Series A Preferred Securities, each Securityholder
agrees to treat the Series C Debentures as indebtedness and the Series A
Preferred Securities as evidence of an indirect beneficial ownership in the
Series C Debentures. The remainder of this discussion assumes that the
Series C Debentures will be classified as indebtedness of PacifiCorp for
United States federal income tax purposes.
Potential Extension of Interest Payment Period and Original Issue Discount
Under the Indenture, PacifiCorp has the right to defer the payment
of interest on the Series C Debentures at any time from time to time for a
period not exceeding 20 consecutive quarters with respect to each Extension
Period, provided that no Extension Period may extend beyond the maturity of
the Series C Debentures. Because of this option, the Series C Debentures
will be treated as having been issued with "original issue discount" for
United States federal income tax purposes. Accordingly, a Securityholder
will recognize interest income (in the form of original issue discount) on
a daily basis under a constant yield method over the term of the Series C
Debentures (including during any Extension Period), regardless of the
receipt
S-23
<PAGE>
of cash with respect to the period to which such income is attributable.
(Subsequent uses of the term "interest" in this summary shall include
interest in the form of original issue discount.)
As a result, Securityholders of record during an Extension Period
will include interest in gross income in advance of the receipt of cash,
regardless of their regular method of accounting for tax purposes, and any
such Securityholders who dispose of Series A Preferred Securities prior to
the record date for the payment of Distributions following such Extension
Period will include interest in gross income but will not receive any cash
related thereto from PacifiCorp Capital I. Any amount of original issue
discount included in a Securityholder's gross income (whether or not during
an Extension Period) will increase such Securityholder's tax basis in its
Series A Preferred Securities, and the amount of Distributions received
from PacifiCorp Capital I by such Securityholder will reduce such
Securityholder's tax basis in its Series A Preferred Securities.
Distribution of Series C Debentures to Holders of Series A Preferred Securities
As described under the caption "Certain Terms of Series A
Preferred Securities-- Distribution of Series C Debentures," PacifiCorp
will have the right, at any time, to liquidate PacifiCorp Capital I and
cause the Series C Debentures to be distributed to the holders of the
Series A Preferred Securities. Under current United States federal income
tax law, provided PacifiCorp Capital I is treated as a grantor trust at the
time of such distribution, such distribution would not be a taxable event
to Securityholders. Such a distribution would result in a Securityholder
receiving directly such Securityholder's pro rata share of the Series C
Debentures previously held indirectly through PacifiCorp Capital I, with a
holding period and aggregate tax basis equal to the holding period and
aggregate tax basis such Securityholder had in such Securityholder's Series
A Preferred Securities before such distribution. A Securityholder will
accrue interest in respect of Series C Debentures received from PacifiCorp
Capital I in the manner described above under "--Potential Extension of
Interest Payment Period and Original Issue Discount."
Following the occurrence of a Tax Event pursuant to which
PacifiCorp Capital I was determined to be an association taxable as a
corporation, however, such a distribution would be a taxable event to such
holders.
Sale or Redemption of Series A Preferred Securities
Gain or loss will be recognized by a Securityholder on a sale of
Series A Preferred Securities (including a redemption for cash) in an
amount equal to the difference between the amount realized and the
Securityholder's adjusted tax basis in the Series A Preferred Securities
sold or so redeemed. Gain or loss recognized by a Securityholder on Series
A Preferred Securities held for more than one year will generally be
treated as long-term capital gain or loss.
The Series A Preferred Securities may trade at a price that does
not fully reflect the value of accrued but unpaid interest with respect to
the underlying Series C Debentures. A
S-24
<PAGE>
Securityholder that disposes of such Securityholder's Series A Preferred
Securities between record dates for payments of Distributions (and
consequently does not receive a Distribution from PacifiCorp Capital I for
the period prior to such disposition) will nevertheless be required to
include as ordinary income accrued but unpaid interest on the Series C
Debentures through the date of disposition and to add such amount to such
Securityholder's adjusted tax basis in the Series A Preferred Securities
disposed of. Such Securityholder will recognize a capital loss on the
disposition of Series A Preferred Securities to the extent the selling
price (which may not fully reflect the amount of accrued but unpaid
interest) is less than the Securityholder's adjusted tax basis in the
Series A Preferred Securities (which will reflect accrued but unpaid
interest). Subject to certain limited exceptions, capital losses cannot be
applied to offset ordinary income for United States federal income tax
purposes.
Backup Withholding Tax and Information Reporting
The amount of original issue discount accrued on the Series A
Preferred Securities held of record by United States Persons (other than
corporations and other exempt Securityholders) will be reported to the
Securityholders and to the Internal Revenue Service. "Backup" withholding
at a rate of 31% will apply to payments of interest to non-exempt United
States Persons unless the Securityholder furnishes its taxpayer
identification number in the manner prescribed in applicable Treasury
Regulations, certifies that such number is correct, certifies as to no loss
of exemption from backup withholding and meets certain other conditions.
Payment of proceeds from disposition of Series A Preferred
Securities to or through the United States office of a broker is subject to
information reporting and backup withholding unless the holder or
beneficial owner establishes an exemption.
Any amounts withheld from a Securityholder under the backup
withholding rules will be allowed as a refund or a credit against such
Securityholder's United States federal income tax liability, provided the
required information is furnished to the Internal Revenue Service.
Possible Tax Law Changes
On March 19, 1996, President Clinton released the proposed Revenue
Reconciliation Bill of 1996 (the "Bill"). The Bill would, among other
things, generally deny interest deductions for interest on an instrument,
issued by a corporation, that has a maximum weighted average maturity of
more than 40 years. The Bill also would generally deny interest deductions
for interest on an instrument, issued by a corporation, that has a maximum
term of more than 20 years and that is not shown as indebtedness on the
separate balance sheet of the issuer or, where the instrument is issued to
a related party (other than a corporation), where the holder or some other
related party issues a related instrument that is not shown as indebtedness
on the issuer's consolidated balance sheet. The above-described provisions
of the Bill were proposed to be effective generally for instruments issued
on or after December 7, 1995. If either provision were to apply to the
Series C Debentures, PacifiCorp would be unable to deduct interest on the
Series C Debentures.
S-25
<PAGE>
On March 29, 1996, the Chairmen of the Senate Finance and the
House Ways and Means Committees issued a joint statement to the effect that
it was their intention that the effective date of the President's
legislative proposals, if adopted, would be no earlier than the date of
"appropriate Congressional action." As discussed above under
"--Classification of the Series C Debentures," PacifiCorp believes and
intends to take the position that interest on the Series C Debentures is
deductible for United States federal income tax purposes. There can be no
assurance, however, that current or future legislative proposals or final
legislation will not affect the ability of PacifiCorp to deduct interest on
the Series C Debentures. If legislation were enacted limiting, in whole or
in part, deductibility by PacifiCorp of interest on the Series C Debentures
for United States federal income tax purposes, such enactment would give
rise to a Special Event, which would permit PacifiCorp to cause a
redemption of the Series A Preferred Securities, as described more fully in
the accompanying Prospectus under "Description of
PreferredSecurities--Redemption or Exchange--Special Event Redemption or
Distribution of Corresponding Junior Subordinated Debentures."
S-26
<PAGE>
UNDERWRITING
Subject to the terms and conditions of the Underwriting Agreement,
PacifiCorp and PacifiCorp Capital I have agreed that PacifiCorp Capital I
will sell to each of the Underwriters named below (for whom Goldman, Sachs
& Co., Smith Barney Inc., Dean Witter Reynolds Inc., A.G. Edwards & Sons,
Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated are acting as
Representatives) and each of the Underwriters has severally agreed to
purchase from PacifiCorp Capital I the respective number of Series A
Preferred Securities set forth opposite its name below:
Number of
Series A
Preferred
Underwriter Securities
----------- ----------
Goldman, Sachs & Co.
Smith Barney Inc.
Dean Witter Reynolds Inc.
A.G. Edwards & Sons, Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
--------
Total........................................... $
========
S-27
<PAGE>
Subject to the terms and conditions of the Underwriting Agreement,
the Underwriters are committed to take and pay for all such Series A
Preferred Securities offered hereby, if any are taken.
The Underwriters propose to offer the Series A Preferred
Securities in part directly to the public at the initial public offering
price set forth on the cover page of this Prospectus Supplement, and in
part to certain securities dealers at such price less a concession of $__
per Series A Preferred Security. The Underwriters may allow, and such
dealers may reallow, a concession not in excess of $__ per Series A
Preferred Security to certain brokers and dealers. After the Series A
Preferred Securities are released for sale to the public, the offering
price and other selling terms may from time to time be varied by the
Representatives.
In view of the fact that the proceeds from the sale of the Series
A Preferred Securities will be used to purchase the Series C Debentures
issued by PacifiCorp, the Underwriting Agreement provides that PacifiCorp
will pay as Underwriters' Compensation for the Underwriters arranging the
investment therein of such proceeds an amount of $____ per Series A
Preferred Security ($__ per Series A Preferred Security sold to certain
institutions) for the accounts of the several Underwriters.
PacifiCorp and PacifiCorp Capital I have agreed that, during the
period beginning from the date of the Underwriting Agreement and continuing
to and including the earlier of (i) the termination of trading restrictions
on the Series A Preferred Securities, as determined by the Underwriters,
and (ii) 30 days after the closing date, they will not offer, sell,
contract to sell or otherwise dispose of any Preferred Securities, any
other beneficial interests in the assets of PacifiCorp Capital I, or any
preferred securities or any other securities of PacifiCorp Capital I or
PacifiCorp which are substantially similar to the Series A Preferred
Securities, including any guarantee of such securities, or any securities
convertible into or exchangeable for or that represent the right to receive
preferred securities or any such substantially similar securities of either
PacifiCorp Capital I or PacifiCorp, without the prior written consent of
the Representatives, except for the Series A Preferred Securities and the
Series A Guarantee offered in connection with the offering.
PacifiCorp and PacifiCorp Capital I have agreed to indemnify the
several Underwriters against certain liabilities, including liabilities
under the Securities Act of 1933, as amended, or to contribute to payments
the Underwriter may be required to make in respect thereof.
Prior to this offering, there has been no public market for the
Series A Preferred Securities. PacifiCorp Capital I intends to list the
Series A Preferred Securities on the NYSE. The Representatives have advised
PacifiCorp that they intend to make a market in the Series A Preferred
Securities prior to commencement of trading on the NYSE, but are not
obligated to do so and may discontinue any such market making at any time
without notice. No assurance can be given as to the liquidity of the
trading market for the Series A Preferred Securities.
S-28
<PAGE>
Certain of the Underwriters or their affiliates have provided from
time to time, and expect to provide in the future, investment or commercial
banking services to PacifiCorp and its affiliates, for which such
Underwriters or their affiliates have received or will receive customary
fees and commissions.
LEGAL OPINIONS
Certain matters of Delaware law relating to the validity of the
Series A Preferred Securities, the enforceability of the Trust Agreement
and the creation of PacifiCorp Capital I will be passed upon by Richards,
Layton & Finger, special Delaware counsel to PacifiCorp and PacifiCorp
Capital I. The validity of the Series A Guarantee and the Series C
Debentures will be passed upon for PacifiCorp by Stoel Rives LLP, Portland,
Oregon, and for the Underwriters by Winthrop, Stimson, Putnam & Roberts,
New York, New York. Certain matters relating to United States federal
income tax considerations will be passed upon by Stoel Rives LLP, counsel
to PacifiCorp and PacifiCorp Capital I.
S-29
<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
bec omes 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 l aws of any such jurisdiction.
- --------------------------------------------------------------------------------
Subject to Completion, Dated May 8, 1996
$250,000,000
PACIFICORP PACIFICORP CAPITAL I
PACIFICORP CAPITAL II
Junior Subordinated Debentures Preferred Securities guaranteed
to the extent the Issuer Trusts have
funds as set forth herein by
PACIFICORP
PacifiCorp, an Oregon corporation ("PacifiCorp"), may from time to
time offer in one or more series or issuances its junior subordinated
deferrable interest debentures (the "Junior Subordinated Debentures"). The
Junior Subordinated Debentures will be unsecured and subordinate and junior
in right of payment to Senior Indebtedness (as defined herein) of
PacifiCorp. See "Description of the Junior Subordinated
Debentures--Subordination." If provided in a related prospectus supplement
accompanying this Prospectus (the "Prospectus Supplement"), PacifiCorp will
have the right to defer payments of interest on any series of Junior
Subordinated Debentures at any time or from time to time for such number of
consecutive interest payment periods (which shall not extend beyond the
maturity of the Junior Subordinated Debentures) with respect to each
deferral period as may be specified in the Prospectus Supplement (each, an
"Extension Period"). See "Description of Junior Subordinated
Debentures--Option to Extend Interest Payments" and "--Certain Covenants of
PacifiCorp."
PacifiCorp Capital I and PacifiCorp Capital II, each a trust
created under the laws of the State of Delaware (each an "Issuer Trust" and
collectively the "Issuer Trusts"), may severally offer, from time to time,
preferred securities (the "Preferred Securities") representing preferred
undivided beneficial interests in the assets of each Issuer Trust.
PacifiCorp will be the owner of the common securities (the "Common
Securities") representing common undivided beneficial interests in the
assets of each Issuer Trust. The payment of periodic cash distributions
("Distributions") with respect to Preferred Securities of each Issuer
Trust, and payments on liquidation or redemption with respect to such
Preferred Securities, in each case to the extent of funds held by such
Issuer Trust, are each irrevocably guaranteed by PacifiCorp as described
herein (each, a "Guarantee"). See "Description of Guarantee." PacifiCorp's
obligations under each Guarantee will be subordinate and junior in right of
payment to all Senior Indebtedness of PacifiCorp. Concurrently with the
issuance by an Issuer Trust of its Preferred Securities, such Issuer Trust
will invest the proceeds thereof and any contributions made by PacifiCorp
in respect of PacifiCorp's purchase of the Common Securities in a
corresponding
(Continued on next page)
-----------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
-----------------------------------------
The date of this Prospectus is May __, 1996
<PAGE>
(Continued from previous page)
series of Junior Subordinated Debentures (the "Corresponding Junior
Subordinated Debentures") with terms corresponding to the terms of such
Issuer Trust's Preferred Securities. The Corresponding Junior Subordinated
Debentures will be the sole assets of each Issuer Trust, and payments under
the Corresponding Junior Subordinated Debentures will be the only revenue
of each Issuer Trust. PacifiCorp may redeem the Corresponding Junior
Subordinated Debentures (and cause the redemption of the related Preferred
Securities) or may terminate each Issuer Trust and cause the Corresponding
Junior Subordinated Debentures to be distributed to the holders of
Preferred Securities in liquidation of their interests in such Issuer
Trust. See "Description of Preferred Securities--Liquidation Distribution
Upon Termination."
Holders of the Preferred Securities will be entitled to receive
preferential cumulative cash Distributions accumulating from the date of
original issuance and payable periodically as specified in the related
Prospectus Supplement. If provided in the related Prospectus Supplement,
PacifiCorp will have the right to defer payments of interest on any series
of Corresponding Junior Subordinated Debentures at any time or from time to
time for one or more Extension Periods (which shall not extend beyond the
maturity of such Corresponding Junior Subordinated Debentures). If interest
payments are so deferred, Distributions on the related series of Preferred
Securities will also be deferred and PacifiCorp will not be permitted,
subject to certain exceptions set forth herein, to declare, set aside or
pay any cash distributions with respect to PacifiCorp's capital stock or
debt securities that rank pari passu with or junior to the Corresponding
Junior Subordinated Debentures. During an Extension Period, interest on the
Corresponding Junior Subordinated Debentures will continue to accrue (and
the amount of Distributions to which holders of Preferred Securities are
entitled will accumulate) at the rate per annum set forth in the related
Prospectus Supplement. See "Description of Junior Subordinated
Debentures--Option to Extend Interest Payment Date" and "--Certain
Covenants of PacifiCorp" and "Description of Preferred
Securities--Distributions."
The Junior Subordinated Debentures and the Preferred Securities
(the "Offered Securities") may be offered in amounts, at prices and on
terms to be determined at the time of offering, provided that the aggregate
initial public offering price of all Junior Subordinated Debentures (other
than Corresponding Junior Subordinated Debentures) and Preferred Securities
shall not exceed $250,000,000. Certain specific terms of the Offered
Securities will be described in the Prospectus Supplement, including,
without limitation and where applicable and to the extent not set forth
herein: (i) in the case of Junior Subordinated Debentures, the specific
designation, aggregate principal amount, denominations, maturity, interest
payment dates, interest rate (which may be fixed or variable) or method of
calculating interest, if any, applicable Extension Period or interest
deferral terms, if any, place or places where principal, premium, if any,
and interest, if any, will be payable, terms of redemption, if any, sinking
fund provisions, if any, terms for conversion or exchange, if any, into
other securities, the initial offering or purchase price, methods of
distribution and any other special terms; and (ii) in the case of Preferred
Securities, the identity of the Issuer Trust, specific title, aggregate
amount, stated liquidation preference, distribution rate or the method of
calculating such rate, applicable Extension Period or Distribution deferral
terms, if any, dates on which and place or places where Distributions will
be payable, voting rights, any redemption provisions, terms for any
conversion or exchange into other securities, initial offering or purchase
price, methods of distribution, and any other special terms.
2
<PAGE>
The Prospectus Supplement will also contain information, as
applicable, concerning certain United States federal income tax
considerations relating to the Offered Securities.
The Offered Securities may be sold directly by PacifiCorp, through
agents designated from time to time or through underwriters or dealers. See
"Plan of Distribution." If any agents of PacifiCorp or underwriters are
involved in the sale of any Offered 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 PacifiCorp from such sale also will be set
forth in a Prospectus Supplement or Prospectus Supplements. The Prospectus
Supplement will state whether the Offered Securities will be listed on any
national securities exchange or the Nasdaq National Market. If the Offered
Securities are not listed on any national securities exchange or the Nasdaq
National Market, there can be no assurance that there will be a liquid
secondary market for such Offered Securities.
This Prospectus may not be used to consummate sales of Offered
Securities unless accompanied by a Prospectus Supplement relating to such
Offered Securities.
3
<PAGE>
AVAILABLE INFORMATION
PacifiCorp 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
PacifiCorp can be inspected and copied at 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 W.
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, upon payment
of the prescribed rates. The Common Stock of PacifiCorp is listed on the
New York Stock Exchange and the Pacific Stock Exchange. Reports, proxy
statements and other information concerning PacifiCorp can also be
inspected at their respective offices: New York Stock Exchange (the
"NYSE"), 20 Broad Street, New York, New York 10005, and the Pacific Stock
Exchange, 301 Pine Street, San Francisco, California 94104.
PacifiCorp and the Issuer Trusts have filed with the Commission a
joint Registration Statement under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to the securities offered hereby. This
Prospectus does not contain all of the information set forth in such
Registration Statement and the exhibits thereto. For further information
with respect to PacifiCorp, the Issuer Trusts and the Offered Securities,
reference is hereby made to such Registration Statement, including the
exhibits thereto, which may be examined at the Commission's principal
office, 450 Fifth Street, N.W., Washington, D.C. 20549, or copies of which
may be obtained from the Commission at such office upon payment of the fees
prescribed by the Commission.
No separate financial statements of the Issuer Trusts have been
included herein. PacifiCorp and the Issuer Trusts do not consider that such
financial statements would be material to holders of Preferred Securities
offered hereby because each Issuer Trust is a newly formed special purpose
entity, has no operating history, has no independent operations and is not
engaged in, and does not propose to engage in, any activity other than as
set forth below. See "The Issuer Trusts," "Description of the Preferred
Securities," "Description of Guarantee" and "Description of Corresponding
Junior Subordinated Debentures."
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by PacifiCorp with the Commission
pursuant to the Exchange Act are incorporated in this Prospectus by
reference:
(1) PacifiCorp's Annual Report on Form 10-K for the year ended
December 31, 1995;
(2) PacifiCorp's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1996; and
(3) PacifiCorp's Current Reports on Form 8-K dated January 16,
1996 and February 12, 1996.
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All documents filed by PacifiCorp 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
PacifiCorp 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 PacifiCorp'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.
PacifiCorp hereby undertakes to provide without charge to each
person 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
PacifiCorp contained in this Prospectus does not purport to be
comprehensive and should be read together with the information contained in
the Incorporated Documents.
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 PacifiCorp or its subsidiaries since the date of this Prospectus
or the date of the latest Prospectus Supplement, as the case may be.
PACIFICORP
PacifiCorp 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.
PacifiCorp is the indirect owner, through PacifiCorp Holdings, Inc. (a
wholly-owned subsidiary) ("Holdings"), 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.
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PacifiCorp 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 570,000
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. Holdings 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 PacifiCorp are located at 700
NE Multnomah, Suite 1600, Portland, Oregon 97232; the telephone number is
(503) 731-2000.
THE ISSUER TRUSTS
Each Issuer Trust is a statutory business trust created under
Delaware law pursuant to (i) a trust agreement executed by PacifiCorp, as
depositor of such Issuer Trust, the Delaware Trustee (as defined herein) of
such Issuer Trust, the Property Trustee (as defined herein) of such Issuer
Trust and an Administrative Trustee (as defined herein) of such Issuer
Trust and (ii) the filing of a certificate of trust with the Delaware
Secretary of State. Each trust agreement will be amended and restated in
its entirety (each, as so amended and restated, a "Trust Agreement")
substantially in the form filed as an exhibit to the Registration Statement
of which this Prospectus forms a part. Each Trust Agreement will be
qualified as an indenture under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"). Each Issuer Trust exists for the exclusive
purposes of (i) issuing and selling its Preferred Securities and Common
Securities, (ii) using the proceeds from the sale of such Preferred
Securities and Common Securities to acquire a corresponding series of
Corresponding Junior Subordinated Debentures issued by PacifiCorp and (iii)
engaging in only those other activities necessary, convenient or incidental
thereto. Accordingly, such Corresponding Junior Subordinated Debentures
will be the sole assets of such Issuer Trust, and payments under such
Corresponding Junior Subordinated Debentures will be the sole revenue of
such Issuer Trust.
All of the Common Securities will be owned by PacifiCorp. The
Common Securities of an Issuer Trust will rank pari passu, and payments
will be made thereon pro rata, with the Preferred Securities of such Issuer
Trust, except that upon the occurrence and continuance of an event of
default under a Trust Agreement resulting from a Debenture Event of Default
(as defined herein), the rights of PacifiCorp as holder of the Common
Securities to payment in respect of Distributions and payments upon
liquidation, redemption or otherwise will be subordinated to the rights of
the holders of the Preferred Securities of such Issuer Trust. See
"Description of Preferred Securities--Subordination of Common Securities."
PacifiCorp will acquire Common Securities having an aggregate Liquidation
Amount (as defined herein) equal to not less than 3% of the total capital
of each Issuer Trust.
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Unless otherwise specified in the applicable Prospectus
Supplement, each Issuer Trust has a term of approximately 45 years, but may
terminate earlier as provided in the applicable Trust Agreement. Each
Issuer Trust's business and affairs are conducted by its trustees, which
will be appointed by PacifiCorp as holder of the Common Securities.
Unless otherwise specified in the applicable Prospectus
Supplement, the trustees will be The Bank of New York, as Property Trustee,
(the "Property Trustee"), The Bank of New York (Delaware), as the Delaware
Trustee (the "Delaware Trustee"), and two individual trustees (the
"Administrative Trustees") who are employees or officers of or affiliated
with PacifiCorp (collectively, the "Issuer Trustees"). The Bank of New
York, as Property Trustee, will act as sole indenture trustee under each
Trust Agreement for purposes of compliance with the Trust Indenture Act.
The Bank of New York will also act as trustee under the Guarantee and the
Indenture (each as defined herein). See "Description of Guarantee" and
"Description of Junior Subordinated Debentures." The holder of the Common
Securities, or the holders of a majority in liquidation preference of the
Preferred Securities if a Debenture Event of Default under the Trust
Agreement has occurred and is continuing, will be entitled to appoint,
remove or replace the Property Trustee and/or the Delaware Trustee. In no
event will the holders of the Preferred Securities have the right to vote
to appoint, remove or replace the Administrative Trustees; such voting
rights are vested exclusively in the holder of the Common Securities. The
duties and obligations of each Issuer Trustee are governed by the
applicable Trust Agreement. PacifiCorp will pay all fees and expenses
related to each Issuer Trust and the offering of the Preferred Securities
and will pay, directly or indirectly, all ongoing costs, expenses and
liabilities of each Issuer Trust. The principal executive office of each
Issuer Trust is 700 NE Multnomah, Suite 1600, Portland, Oregon 97232;
telephone number (503) 731-2000.
USE OF PROCEEDS
Unless otherwise indicated in the Prospectus Supplement, the net
proceeds to be received by PacifiCorp from the issuance and sale of the
Offered Securities will initially become part of the general funds of
PacifiCorp and will be used to repay all or a portion of PacifiCorp's
short-term borrowings outstanding at the time of issuance of the Offered
Securities or may be applied to utility asset purchases, new construction
or other corporate purposes, including the refunding of long-term debt or
other senior securities. Reference is made to the Incorporated Documents
with respect to PacifiCorp's capital requirements and its general financing
plans. Each Issuer Trust will invest all proceeds received from the sale of
Preferred Securities in Corresponding Junior Subordinated Debentures.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
The ratios of earnings to fixed charges of PacifiCorp 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
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preferred stock dividend requirements of majority-owned subsidiaries, and
excludes discontinued operations.
DESCRIPTION OF JUNIOR SUBORDINATED DEBENTURES
The Junior Subordinated Debentures may be issued from time to time
in one or more series under an Indenture dated as of May 1, 1995, as
supplemented and amended from time to time (the "Indenture"), between
PacifiCorp and The Bank of New York, as trustee (the "Debenture Trustee").
PacifiCorp may issue Junior Subordinated Debentures to the public or to
institutional investors as described under "Plan of Distribution" or
Corresponding Junior Subordinated Debentures to the Issuer Trusts in
connection with the issuance of Preferred Securities. The following summary
is subject to the provisions of and is qualified by reference to the
Indenture, which is filed as an exhibit to the Registration Statement of
which this Prospectus forms a part, and to the Trust Indenture Act.
Whenever particular provisions or defined terms in the Indenture are
referred to herein or in a Prospectus Supplement, such provisions or
defined terms are incorporated herein or therein by reference. Section and
Article references used herein are references to provisions of the
Indenture unless otherwise noted.
General
Each series of Junior Subordinated Debentures will rank pari passu
with all other series of Junior Subordinated Debentures, will be unsecured
and will be subordinated and junior in right of payment to the extent and
in the manner set forth in the Indenture to all Senior Indebtedness (as
defined below) of PacifiCorp. See "--Subordination." As the Junior
Subordinated Debentures will be issued by PacifiCorp, the Junior
Subordinated Debentures effectively will be subordinate to all obligations
of PacifiCorp's subsidiaries, and the rights of PacifiCorp's creditors,
including holders of Junior Subordinated Debentures, to participate in the
assets of such subsidiaries upon liquidation or reorganization will be
junior to the rights of the holders of all preferred stock, indebtedness
and other liabilities of such subsidiaries, which may include trade
payables, obligations to banks under credit facilities, guarantees,
pledges, support arrangements, bonds, capital leases, notes and other
obligations.
The Indenture provides that Junior Subordinated Debentures may be
issued from time to time in one or more series pursuant to an indenture
supplemental to the Indenture or a resolution of PacifiCorp's Board of
Directors (each, a "Supplemental Indenture"). (Section 2.01) The Indenture
does not limit the aggregate principal amount of Junior Subordinated
Debentures that may be issued thereunder. PacifiCorp's Second Restated
Articles of Incorporation, as amended, limit the amount of unsecured debt
that PacifiCorp 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 of PacifiCorp 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 PacifiCorp to incur indebtedness or that
would afford holders of Junior Subordinated Debentures protection in the
event of a highly leveraged or similar transaction involving PacifiCorp or
in the event of a change of control.
Reference is made to the Prospectus Supplement for the following
terms of the series of Junior Subordinated Debentures being offered
thereby: (i) the specific title of such Junior Subordinated Debentures;
(ii) any limit on the aggregate principal amount of such Junior
Subordinated Debentures; (iii) the date or dates on which the principal of
such Junior
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Subordinated Debentures is payable; (iv) the rate or rates at which such
Junior Subordinated Debentures 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 right, if
any, of PacifiCorp to extend the interest payment periods and the duration
of such extension; (vii) the period or periods within which, the price or
prices at which and the terms and conditions upon which such Junior
Subordinated Debentures may be redeemed, in whole or in part, at the option
of PacifiCorp; (viii) the obligation, if any, of PacifiCorp to redeem or
purchase such Junior Subordinated Debentures 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 Junior Subordinated Debentures shall be redeemed
or purchased, in whole or part, pursuant to such obligation; (ix) the form
of such Junior Subordinated Debentures; (x) if other than denominations of
$25 or any integral multiple thereof, the denominations in which such
Junior Subordinated Debentures shall be issuable; (xi) any and all other
terms with respect to such series; and (xii) whether such Junior
Subordinated Debentures are issuable as a global security, and in such
case, the identity of the depositary. (Section 2.01)
Subordination
The Indenture provides that Junior Subordinated Debentures are
subordinate and junior in right of payment to the prior payment in full of
all Senior Indebtedness of PacifiCorp as provided in the Indenture. No
payment of principal of (including redemption and sinking fund payments),
or premium, if any, or interest on, the Junior Subordinated Debentures may
be made if any Senior Indebtedness is not paid when due, any applicable
grace period with respect to such default has ended and such default has
not been cured or waived, or if the maturity of any Senior Indebtedness has
been accelerated because of a default. Upon any payment or distribution of
assets to creditors upon any dissolution, winding-up, liquidation or
reorganization of PacifiCorp, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due
or to become due on all Senior Indebtedness must be paid in full before the
holders of the Junior Subordinated Debentures are entitled to receive or
retain any payment. The rights of the holders of the Junior Subordinated
Debentures will be subrogated to the rights of the holders of Senior
Indebtedness to receive payments or distributions applicable to Senior
Indebtedness until all amounts owing on the Junior Subordinated Debentures
are paid in full. (Sections 14.01 to 14.04) The Junior Subordinated
Debentures effectively will also be subordinate to all obligations of
PacifiCorp's subsidiaries.
See "--General."
The term "Senior Indebtedness" shall mean the principal of and
premium, if any, and interest on and any other payment due pursuant to any
of the following, whether outstanding at the date of execution of the
Indenture or thereafter incurred, created or assumed:
(a) all indebtedness of PacifiCorp evidenced by notes, debentures,
bonds or other securities sold by PacifiCorp for money;
(b) all indebtedness of others of the kinds described in paragraph
(a) above assumed by or guaranteed in any manner by PacifiCorp or in effect
guaranteed by PacifiCorp through an agreement to purchase, contingent or
otherwise; and
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(c) all renewals, extensions or refundings of indebtedness of the
kinds described in either of paragraphs (a) and (b) above;
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 Junior Subordinated Debentures. Such Senior
Indebtedness shall continue to be Senior Indebtedness and entitled to the
benefits of the subordination provisions contained in the Indenture
irrespective of any amendment, modification or waiver of any term of such
Senior Indebtedness. (Section 1.01)
The Indenture does not limit the aggregate amount of Senior
Indebtedness which may be issued. As of March 31, 1996, Senior Indebtedness
of PacifiCorp aggregated approximately $3.7 billion.
Certain Covenants of PacifiCorp
If there shall have occurred any event that would, with the giving
of notice or the passage of time, or both, constitute a Debenture Event of
Default under the Indenture, as described under "--Debenture Events of
Default" below, or PacifiCorp exercises its option to extend the interest
payment period described in clause (vi) under "--General" above, PacifiCorp
will not, until all defaulted interest on the Junior Subordinated
Debentures and all interest accrued on the Junior Subordinated Debentures
during any such extended interest payment period and all principal and
premium, if any, then due and payable on the Junior Subordinated Debentures
shall have been paid in full, (i) declare, set aside or pay any dividend or
distribution on any capital stock of PacifiCorp, including the Common Stock
of PacifiCorp, 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
PacifiCorp or any of its subsidiaries and except for mandatory redemption
or sinking fund payments with respect to any series of Preferred Stock of
PacifiCorp that are subject to mandatory redemption or sinking fund
requirements, provided that the aggregate stated value of all such series
outstanding at the time of any such payment does not exceed five percent of
the aggregate of (1) the total principal amount of all bonds or other
securities representing secured indebtedness issued or assumed by
PacifiCorp and then outstanding and (2) the capital and surplus of
PacifiCorp to be stated on the books of account of PacifiCorp after giving
effect to such payment); provided, however, that any moneys deposited in
any sinking fund and not in violation of this provision may thereafter be
applied to the purchase or redemption of such Preferred Stock in accordance
with the terms of such sinking fund without regard to the restrictions
contained in this provision. (Section 4.06) As of March 31, 1996, the
aggregate stated value of such series of PacifiCorp's Preferred Stock
outstanding was approximately $219 million, which represented approximately
three percent of the aggregate of clauses (1) and (2) above at such date.
With respect to any issuance of Corresponding Junior Subordinated
Debentures in connection with the issuance of Preferred Securities,
PacifiCorp will make certain additional covenants as described under
"Description of Corresponding Junior Subordinated Debentures."
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Form, Exchange, Registration and Transfer
Each series of Junior Subordinated Debentures 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, Junior Subordinated Debentures 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 PacifiCorp for such purpose with respect
to any series of Junior Subordinated Debentures 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 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 PacifiCorp with respect to any series of
Junior Subordinated Debentures, PacifiCorp 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 PacifiCorp will be
required to maintain a transfer agent in each Place of Payment for such
series. (Section 4.02) PacifiCorp may at any time designate additional
transfer agents with respect to any series of Junior Subordinated
Debentures. The Junior Subordinated Debentures may be transferred or
exchanged without service charge, other than any tax or governmental charge
imposed in connection therewith.
(Section 2.05)
In the event of any redemption in part, PacifiCorp shall not be
required to (i) issue, register the transfer of or exchange any Junior
Subordinated Debenture during a period beginning at the opening of business
15 days before any selection for redemption of Junior Subordinated
Debentures of like tenor and of the series of which such Junior
Subordinated Debenture 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 Junior Subordinated Debentures of like
tenor and of such series to be redeemed and (ii) register the transfer of
or exchange any Junior Subordinated Debentures so selected for redemption,
in whole or in part, except the unredeemed portion of any Junior
Subordinated Debenture being redeemed in part.
(Section 2.05)
Payment and Paying Agents
Unless otherwise indicated in the Prospectus Supplement, payment
of principal of and premium, if any, on any Junior Subordinated Debenture
will be made only against surrender to the Paying Agent of such Junior
Subordinated Debenture. Unless otherwise indicated in the Prospectus
Supplement, principal of and premium, if any, and interest on Junior
Subordinated Debentures will be payable, subject to any applicable laws and
regulations, at the office of such Paying Agent or Paying Agents as
PacifiCorp may designate from time to time, except that at the option of
PacifiCorp payments on the Junior Subordinated Debentures may be made (i)
by checks mailed by the Debenture Trustee to the holders entitled thereto
at their registered addresses as specified in the Register for such Junior
Subordinated Debentures or (ii) to a holder of $1,000,000 or more in
aggregate principal amount of such Junior Subordinated Debentures who has
delivered a written request to the Debenture Trustee at least 14 days prior
to the relevant Interest Payment Date electing to have payments made by
wire transfer to a designated account in the United States, by wire
transfer of immediately available funds to such designated account;
provided that, in either case, the payment of principal with respect to any
Junior
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Subordinated Debenture will be made only upon surrender of such Junior
Subordinated Debenture to the Debenture Trustee. Unless otherwise indicated
in the Prospectus Supplement, payment of interest on a Junior Subordinated
Debenture on any Interest Payment Date will be made to the person in whose
name such Junior Subordinated Debenture (or Predecessor Junior Subordinated
Debenture) is registered at the close of business on the record date for
such interest payment. (Sections 2.03 and 4.03)
PacifiCorp and the Trustee will act as co-Paying Agents with
respect to the Junior Subordinated Debentures for so long as the Series C
Debentures are represented by a Global Debenture. PacifiCorp 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 PacifiCorp will be required to maintain a Paying
Agent in each Place of Payment for each series of the Junior Subordinated
Debentures. (Sections 4.02 and 4.03)
All moneys paid by PacifiCorp to a Paying Agent for the payment of
the principal of or premium, if any, or interest on any Junior Subordinated
Debenture of any series that remain unclaimed at the end of two years after
such principal, premium, if any, or interest shall have become due and
payable will be repaid to PacifiCorp and the holder of such Junior
Subordinated Debenture will thereafter look only to PacifiCorp for payment
thereof. (Section 11.06)
Global Debentures
The Junior Subordinated Debentures of a series may be issued in
whole or in part in the form of one or more global securities ("Global
Junior Subordinated Debentures") that will be deposited with, or on behalf
of, a depositary (the "Depositary") identified in the Prospectus Supplement
relating to such series. Global Junior Subordinated Debentures may be
issued only in fully registered form and in either temporary or permanent
form. Unless and until it is exchanged in whole or in part for the
individual Junior Subordinated Debentures represented thereby, a Global
Junior Subordinated Debenture may not be transferred except as a whole by
the Depositary for such Global Junior Subordinated Debenture to a nominee
of such Depositary or by a nominee of such Depositary to such Depositary or
another nominee of such Depositary or by the Depositary or any nominee to a
successor Depositary or any nominee of such successor.
The specific terms of the depository arrangement with respect to
any portion of a series of Junior Subordinated Debentures to be represented
by a Global Junior Subordinated Debenture will be described in the
Prospectus Supplement. PacifiCorp anticipates that the following provisions
will generally apply to depositary arrangements.
Upon the issuance of a Global Junior Subordinated Debenture, and
the deposit of such Global Junior Subordinated Debenture with or on behalf
of the Depositary, the Depositary for such Global Junior Subordinated
Debenture or its nominee will credit on its book-entry registration and
transfer system, the respective principal amounts of the individual Junior
Subordinated Debentures represented by such Global Junior Subordinated
Debenture to the accounts of persons that have accounts with such
Depositary ("Participants"). Such accounts shall be designated by the
dealers, underwriters or agents with respect to such Junior Subordinated
Debentures or by PacifiCorp if such Junior Subordinated Debentures are
offered and sold directly by PacifiCorp. Ownership of beneficial interests
in a Global Junior Subordinated Debenture will be limited to Participants
or persons that may hold interests through
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Participants. Ownership of beneficial interests in such Global Junior
Subordinated Debenture will be shown on, and the transfer of that ownership
will be effected only through, records maintained by the applicable
Depositary or its nominee (with respect to interests of Participants) and
the records of Participants (with respect to interests of persons who hold
through Participants). The laws of some states may require that certain
purchasers of securities take physical delivery of such securities in
definitive form. Such limits and such laws may impair the ability to
transfer beneficial interests in a Global Junior Subordinated Debenture.
So long as the Depositary for a Global Junior Subordinated
Debenture, or its nominee, is the registered owner of such Global Junior
Subordinated Debenture, such Depositary or such nominee, as the case may
be, will be considered the sole owner or holder of the Junior Subordinated
Debentures represented by such Global Junior Subordinated Debenture for all
purposes under the Indenture governing such Junior Subordinated Debentures.
Except as provided below, owners of beneficial interests in a Global Junior
Subordinated Debenture will not be entitled to have any of the individual
Junior Subordinated Debentures of the series represented by such Global
Junior Subordinated Debenture registered in their names, will not receive
or be entitled to receive physical delivery of any such Junior Subordinated
Debentures of such series in definitive form and will not be considered the
owners or holders thereof under the Indenture.
Payments of principal of and premium, if any, and interest on
individual Junior Subordinated Debentures represented by a Global Junior
Subordinated Debenture registered in the name of a Depositary or its
nominee will be made to the Depositary or its nominee, as the case may be,
as the registered owner of the Global Junior Subordinated Debenture
representing such Junior Subordinated Debentures. None of PacifiCorp, the
Debenture Trustee, any Paying Agent, or the Registrar for such Junior
Subordinated Debentures will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests of the Global Junior Subordinated Debentures
representing such Junior Subordinated Debentures or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
PacifiCorp expects that the Depositary for a series of Junior
Subordinated Debentures or its nominee, upon receipt of any payment of
principal, premium, if any, or interest in respect of a permanent Global
Junior Subordinated Debenture representing any of such Junior Subordinated
Debentures, immediately will credit Participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the
principal amount of such Global Junior Subordinated Debenture representing
such Junior Subordinated Debentures as shown on the records of such
Depositary or its nominee. PacifiCorp also expects that payments by
Participants to owners of beneficial interests in such Global Junior
Subordinated Debenture held through such Participants will be governed by
standing instructions and customary practices, as is now the case with
securities held for the accounts of customers in bearer form or registered
in "street name." Such payments will be the responsibility of such
Participants.
Unless otherwise specified in the applicable Prospectus
Supplement, if a Depositary for a series of Junior Subordinated Debentures
is at any time unwilling, unable or ineligible to continue as depositary
and a successor depositary is not appointed by PacifiCorp within 90 days,
PacifiCorp will issue individual Junior Subordinated Debentures of such
series in exchange for the Global Junior Subordinated Debenture
representing such series of Junior Subordinated Debentures. In addition,
PacifiCorp may at any time and in its sole discretion, subject to any
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limitations described in the Prospectus Supplement relating to such Junior
Subordinated Debentures, determine not to have any Junior Subordinated
Debentures of such series represented by one or more Global Junior
Subordinated Debentures and, in such event, will issue individual Junior
Subordinated Debentures of such series in exchange for the Global Junior
Subordinated Debenture representing such series of Junior Subordinated
Debentures. Further, if PacifiCorp so specifies with respect to the Junior
Subordinated Debentures of a series, an owner of a beneficial interest in a
Global Junior Subordinated Debenture representing Junior Subordinated
Debentures of such series may, on terms acceptable to PacifiCorp, the
Debenture Trustee and the Depositary for such Global Junior Subordinated
Debenture, receive individual Junior Subordinated Debentures of such series
in exchange for such beneficial interest, subject to any limitations
described in the Prospectus Supplement relating to such Junior Subordinated
Debentures. In any such instance, an owner of a beneficial interest in a
Global Junior Subordinated Debenture will be entitled to physical delivery
of individual Junior Subordinated Debentures of the series represented by
such Global Junior Subordinated Debenture equal in principal amount to such
beneficial interest and to have such Junior Subordinated Debentures
registered in its name. Individual Junior Subordinated Debentures of such
series so issued will be issued in denominations, unless otherwise
specified by PacifiCorp, of $25 and integral multiples thereof.
Redemption
Unless otherwise indicated in the applicable Prospectus
Supplement, Junior Subordinated Debentures will not be subject to any
sinking fund.
The applicable Prospectus Supplement will specify the period or
periods within which, the price or prices at which and the terms and
conditions upon which the Junior Subordinated Debentures of any series may
be redeemed, in whole or in part, at the option of PacifiCorp. Junior
Subordinated Debentures in denominations larger than $25 may be redeemed in
part but only in integral multiples of $25. Except as otherwise specified
in the applicable Prospectus Supplement, the redemption price for any
Junior Subordinated Debenture so redeemed shall equal any accrued and
unpaid interest thereon to the redemption date, plus the principal amount
thereof.
Except as otherwise specified in the applicable Prospectus
Supplement, if a Debenture Tax Event (as defined below) in respect of a
series of Junior Subordinated Debentures shall occur and be continuing,
PacifiCorp may, at its option, redeem such series of Junior Subordinated
Debentures in whole (but not in part) at any time within 90 days of the
occurrence of such Debenture Tax Event, at a redemption price equal to 100%
of the principal amount of such Junior Subordinated Debentures then
outstanding plus accrued and unpaid interest to the date fixed for
redemption.
"Debenture Tax Event" means the receipt by PacifiCorp of an
opinion of counsel, rendered by a law firm having a recognized national tax
and securities practice, to the effect that, as a result of any amendment
to, or change (including any announced prospective change) in, the laws (or
any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective
or such pronouncement or decision is announced on or after the date of
issuance of the applicable series of Junior Subordinated Debentures under
the Indenture, there
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is more than an insubstantial risk that interest payable by PacifiCorp on
such series of Junior Subordinated Debentures is not, or within 90 days of
the date of such opinion, will not be, deductible by PacifiCorp, in whole
or in part, for United States federal income tax purposes.
Notice of any redemption will be mailed at least 30 days but not
more than 60 days before the redemption date to each Holder of Junior
Subordinated Debentures to be redeemed at its registered address. Unless
PacifiCorp defaults in payment of the redemption price, on and after the
redemption date interest ceases to accrue on such Junior Subordinated
Debentures or portions thereof called for redemption.
Option to Extend Interest Payment Date
If provided in the applicable Prospectus Supplement, PacifiCorp
shall have the right at any time or from time to time during the term of
any series of Junior Subordinated Debentures to defer the payment of
interest for such number of consecutive interest payment periods with
respect to each deferred period as may be specified in the applicable
Prospectus Supplement (each, an "Extension Period"), subject to the terms,
conditions and covenants, if any, specified in such Prospectus Supplement,
provided that such Extension Period may not extend beyond the maturity of
such series of Junior Subordinated Debentures. Certain United States
federal income tax consequences and special considerations applicable to
any such Junior Subordinated Debentures will be described in the applicable
Prospectus Supplement. In the event that PacifiCorp exercises this right,
certain restrictions will be applicable to PacifiCorp as described under
"--Certain Covenants of PacifiCorp."
Agreed Tax Treatment
The Indenture provides that each holder of a Junior Subordinated
Debenture, each person that acquires a beneficial ownership interest in a
Junior Subordinated Debenture and PacifiCorp agree that for United States
federal, state and local tax purposes it is intended that such Junior
Subordinated Debenture constitute indebtedness. (Section 13.12)
Modification of Indenture
The Indenture contains provisions permitting PacifiCorp and the
Debenture Trustee, with the consent of the holders of not less than a
majority in principal amount of the Junior Subordinated Debentures of each
series which are affected by the modification, to modify the Indenture or
any supplemental indenture affecting that series or the rights of the
holders of that series of Junior Subordinated Debentures; provided that no
such modification may, without the consent of the holder of each
outstanding Junior Subordinated Debenture affected thereby, (i) extend the
fixed maturity of any Junior Subordinated Debentures of any series, or
reduce the principal amount thereof, or reduce the rate or extend the time
of payment of interest thereon, or reduce any premium payable upon the
redemption thereof or (ii) reduce the percentage of Junior Subordinated
Debentures, the holders of which are required to consent to any such
supplemental indenture. (Section 9.02) In the case of Corresponding Junior
Subordinated Debentures, so long as any of the related series of Preferred
Securities remain outstanding, PacifiCorp will covenant in the applicable
Supplemental Indenture that no such modification may be made that adversely
affects the holders of such Preferred Securities in any material respect,
and no termination of the Indenture may occur, and no waiver of any
Debenture Event of Default or compliance with any covenant under the
Indenture may be effective, without the prior
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consent of the holders of at least a majority of the aggregate liquidation
preference of such Preferred Securities unless and until the principal of
the Corresponding Junior Subordinated Debentures and all accrued and unpaid
interest thereon have been paid in full and certain other conditions are
satisfied. See "Description of Corresponding Junior Subordinated
Debentures."
In addition, PacifiCorp and the Debenture Trustee may execute,
without the consent of any holder of Junior Subordinated Debentures
(including the Junior Subordinated Debentures being offered hereby), any
supplemental indenture for certain other usual purposes, including the
creation of any new series of Junior Subordinated Debentures. (Sections
2.01, 9.01 and 10.01)
Debenture Events of Default
The Indenture provides that any one or more of the following
described events, which has occurred and is continuing, constitutes a
"Debenture Event of Default" with respect to each series of Junior
Subordinated Debentures:
(a) failure for 10 days to pay interest on the Junior Subordinated
Debentures of that series when due; or
(b) failure to pay principal of or premium, if any, on the Junior
Subordinated Debentures of that series when due whether at maturity, upon
redemption, by declaration or otherwise, or to make any sinking or
analogous fund payment established with respect to that series; or
(c) failure to observe or perform any other covenant (other than
those specifically relating to one or more other series of Junior
Subordinated Debentures) contained in the Indenture for 90 days after
notice; or
(d) a decree or order by a court having jurisdiction in the
premises shall have been entered adjudging PacifiCorp a bankrupt or
insolvent, or approving as properly filed a petition seeking liquidation or
reorganization of PacifiCorp 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
PacifiCorp and shall continue undismissed for a period of 90 days or an
order for relief in such case shall have been entered; or a decree or order
of a court having jurisdiction in the premises shall have been entered for
the appointment on the ground of insolvency or bankruptcy of a receiver,
custodian, liquidator, trustee or assignee in bankruptcy or insolvency of
PacifiCorp 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) PacifiCorp 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)
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The holders of a majority in aggregate outstanding principal
amount of any series of the Junior Subordinated Debentures have the right
to direct the time, method and place of conducting any proceeding for any
remedy available to the Debenture Trustee for that series. (Section 6.06)
The Debenture Trustee or the holders of not less than 25% in aggregate
outstanding principal amount of any particular series of the Junior
Subordinated Debentures may declare the principal due and payable
immediately upon a Debenture Event of Default with respect to such series
and, in the case of Corresponding Junior Subordinated Debentures, should
the Debenture Trustee or such holders of such Corresponding Junior
Subordinated Debentures fail to make such declaration, the holders of at
least 25% in aggregate liquidation preference of the related series of
Preferred Securities shall have such right. The holders of a majority in
aggregate outstanding principal amount of such series may annul such
declaration and waive such Debenture Event of Default if it has been cured
and a sum sufficient to pay all matured installments of interest and
principal and any premium has been deposited with the Debenture Trustee.
(Sections 6.01 and 6.06) In the case of Corresponding Junior Subordinated
Debentures, should the holders of such Corresponding Junior Subordinated
Debentures fail to annul such declaration and waive such Debenture Event of
Default, the holders of a majority in aggregate liquidation preference of
the related series of Preferred Securities shall have such right.
The holders of the Preferred Securities would not be able to
exercise directly any other remedies available to the holder of the Junior
Subordinated Debentures unless the Property Trustee or the Debenture
Trustee, acting for the benefit of the Property Trustee, fails to do so for
60 days. In such event, to the fullest extent permitted by law, the holders
of at least 25% in aggregate liquidation preference of the outstanding
Preferred Securities would have the right to directly institute proceedings
for enforcement of payment to such holders of principal of, or premium, if
any, or interest on the Junior Subordinated Debentures having a principal
amount equal to the aggregate liquidation preference of the Preferred
Securities of such holders. See "Description of Preferred Securities -
Events of Default; Notice."
The holders of a majority in aggregate outstanding principal
amount of all series of the Junior Subordinated Debentures affected thereby
may, on behalf of the holders of all the Junior Subordinated Debentures of
such series, waive any past default, except a default in the payment of
principal, premium, if any, or interest. (Section 6.06.) In the case of
Corresponding Junior Subordinated Debentures, should the holders of such
Corresponding Junior Subordinated Debentures fail to waive such default,
the holders of a majority in aggregate liquidation preference of the
related series of Preferred Securities shall have such right. PacifiCorp is
required to file annually with the Debenture Trustee a certificate as to
whether or not PacifiCorp is in compliance with all the conditions and
covenants under the Indenture. (Section 5.03(d))
In case a Debenture Event of Default shall occur and be continuing
as to a series of Corresponding Junior Subordinated Debentures, the
Property Trustee will have the right to declare the principal of and the
interest on such Corresponding Junior Subordinated Debentures and any other
amounts payable under the Indenture, to be forthwith due and payable and to
enforce its other rights as a creditor with respect to such Corresponding
Junior Subordinated Debentures.
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Consolidation, Merger and Sale
The Indenture does not contain any covenant which restricts
PacifiCorp's ability to merge or consolidate with or into any other
corporation, sell or convey all or substantially all of its assets to any
corporation or otherwise engage in restructuring transactions. (Section
10.01)
Conversion or Exchange
Unless otherwise indicated in the applicable Prospectus
Supplement, the Junior Subordinated Debentures of any series may be
convertible or exchangeable into Preferred Securities or other securities.
The specific terms on which Junior Subordinated Debentures of any series
may be so converted or exchanged will be set forth in the applicable
Prospectus Supplement. Such terms may include provisions for conversion or
exchange, either mandatory, at the option of the holder, or at the option
of PacifiCorp, in which case the number of shares of Preferred Securities
or other securities to be received by the holders of Junior Subordinated
Debentures would be calculated as of a time and in the manner stated in the
applicable Prospectus Supplement.
Defeasance and Discharge
Under the terms of the Indenture, PacifiCorp will be discharged
from any and all obligations under the Indenture in respect of the Junior
Subordinated Debentures of any series (except in each case for certain
obligations to register the transfer or exchange of Junior Subordinated
Debentures, replace stolen, lost or mutilated Junior Subordinated
Debentures, maintain paying agencies and hold moneys for payment in trust)
if PacifiCorp deposits with the Debenture Trustee, in trust, moneys or
Government Obligations, in an amount sufficient to pay all the principal
of, and interest on, the Junior Subordinated Debentures of such series on
the dates such payments are due in accordance with the terms of such Junior
Subordinated Debentures and, if, among other things, such Junior
Subordinated Debentures are not due and payable, or are not to be called
for redemption, within one year, PacifiCorp delivers to the Debenture
Trustee an Opinion of Counsel to the effect that the holders of Junior
Subordinated Debentures of such series will not recognize income, gain or
loss for federal income tax purposes as a result of such deposit and
discharge and will be subject to federal income tax on the same amount and
in the same manner and at the same times as would have been the case if
such deposit and discharge had not occurred. In addition to discharging
certain obligations under the Indenture as stated above, if PacifiCorp
delivers to the Debenture Trustee an Opinion of Counsel (in lieu of the
Opinion of Counsel referred to above) to the effect that (a) PacifiCorp has
received from, or there has been published by, the Internal Revenue Service
a ruling or (b) since the date of the Indenture there has been a change in
applicable federal income tax law, in either case to the effect that, and
based thereon such Opinion of Counsel shall confirm that, the holders of
Junior Subordinated Debentures of such series will not recognize income,
gain or loss for federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to federal income tax on the
same amount and in the same manner and at the same times, as would have
been the case if such deposit, defeasance and discharge had not occurred,
and (c) the trust resulting from the defeasance is a valid trust and will
not constitute a regulated investment company under the Investment Company
Act of 1940, as amended, then, in such event, PacifiCorp will be deemed to
have paid and discharged the entire indebtedness on the Junior Subordinated
Debentures. In the event of any such defeasance and discharge of Junior
Subordinated Debentures of such series, holders of Junior Subordinated
Debentures of
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such series would be able to look only to such trust fund for payment of
principal of (and premium, if any) and interest, if any, on the Junior
Subordinated Debentures of such series.
(Sections 11.01, 11.02 and 11.03)
Governing Law
The Indenture and the Junior Subordinated Debentures will be
governed by, and construed in accordance with, the laws of the State of New
York. (Section 13.04)
Information Concerning the Debenture Trustee
The Debenture Trustee, prior to default, undertakes to perform
only such duties as are specifically set forth in the Indenture and, after
default, shall exercise the same degree of care as a prudent individual
would exercise in the conduct of his or her own affairs. (Section 7.01)
Subject to such provision, the Debenture Trustee is under no obligation to
exercise any of the powers vested in it by the Indenture at the request of
any holder of Junior Subordinated Debentures, unless offered reasonable
indemnity by such holder against the costs, expenses and liabilities which
might be incurred thereby. (Section 7.02) The Debenture 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 Debenture
Trustee reasonably believes that repayment or adequate indemnity is not
reasonably assured to it. (Section 7.01)
The Bank of New York serves as trustee and agent under agreements
involving PacifiCorp and its affiliates.
Miscellaneous
PacifiCorp 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 PacifiCorp; provided that, in the event of any
such assignment, PacifiCorp will remain liable for all such obligations.
Subject to the foregoing, the Indenture will be binding upon and inure to
the benefit of the parties thereto and their respective successors and
assigns. The Indenture provides that it may not otherwise be assigned by
the parties thereto. (Section 13.11)
DESCRIPTION OF PREFERRED SECURITIES
Pursuant to the terms of the Trust Agreement for each Issuer
Trust, the Issuer Trustees on behalf of such Issuer Trust will issue the
Preferred Securities and the Common Securities. The Preferred Securities of
a particular issue will represent preferred undivided beneficial interests
in the assets of the related Issuer Trust and the holders thereof will be
entitled to a preference in certain circumstances with respect to
Distributions and amounts payable on redemption or liquidation over the
Common Securities of such Issuer Trust, as well as other benefits as
described in the corresponding Trust Agreement. This summary of certain
provisions of the Preferred Securities and each Trust Agreement does not
purport to be complete and is subject to, and is qualified in its entirety
by reference to, all the provisions of each Trust Agreement, including the
definitions therein of certain terms, and the Trust Indenture Act. Wherever
particular defined terms of a Trust Agreement (as supplemented or amended
from time to time) are referred to herein or in a Prospectus Supplement,
such defined terms are incorporated herein or therein by reference. The
form of each Trust Agreement has been filed
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as an exhibit to the Registration Statement of which this Prospectus forms
a part. Each of the Issuer Trusts is a legally separate entity and the
assets of one are not available to satisfy the obligations of any of the
others.
General
The Preferred Securities of an Issuer Trust will rank pari passu,
and payments will be made thereon pro rata, with the Common Securities of
that Issuer Trust except as described below under "--Subordination of
Common Securities." Legal title to the Corresponding Junior Subordinated
Debentures will be held by the Property Trustee in trust for the benefit of
the holders of the related Preferred Securities and Common Securities. Each
Guarantee Agreement executed by PacifiCorp for the benefit of the holders
of an Issuer Trust's Preferred Securities (each, a "Guarantee") will be a
guarantee on a subordinated basis with respect to the related Preferred
Securities but will not guarantee payment of Distributions or amounts
payable on redemption or liquidation of such Preferred Securities when the
related Issuer Trust does not have funds on hand available to make such
payments. See "Description of Guarantee."
Distributions
Each Issuer Trust's Preferred Securities represent preferred
undivided beneficial interests in the assets of such Issuer Trust, and the
Distributions on each Preferred Security will be payable at a rate
specified in the Prospectus Supplement for such Preferred Securities. The
amount of Distributions payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months unless otherwise specified
in the applicable Prospectus Supplement. Distributions to which holders of
Preferred Securities are entitled will accumulate additional Distributions
("Additional Amounts") if and as specified in the applicable Prospectus
Supplement. The term "Distributions" as used herein includes any Additional
Amounts unless otherwise stated.
Distributions on the Preferred Securities will be cumulative, will
accumulate from the date of original issuance and will be payable on such
dates as specified in the applicable Prospectus Supplement. In the event
that any date on which Distributions are payable on the Preferred
Securities is not a Business Day (as defined below), payment of the
Distribution payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in
respect of any such delay) except that, if such Business Day is in the next
succeeding calendar year, payment of such Distribution shall be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on such date (each date on which Distributions are
payable in accordance with the foregoing, a "Distribution Date"). A
"Business Day" shall mean any day other than a Saturday or a Sunday, or a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed or a day on which the
corporate trust office of the Property Trustee or the Debenture Trustee is
closed for business.
If provided in the applicable Prospectus Supplement, PacifiCorp
has the right under the Indenture to defer the payment of interest on any
series of the Corresponding Junior Subordinated Debentures at any time or
from time to time for one or more Extension Periods, subject to the terms,
conditions and covenants, if any, specified in the applicable Prospectus
Supplement, provided that no Extension Period may extend beyond the
maturity of such series of Corresponding Junior Subordinated Debentures. As
a consequence of any such extension,
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Distributions on the corresponding Preferred Securities would be deferred
(but would continue to accumulate additional Distributions thereon at the
rate per annum set forth in the Prospectus Supplement for such Preferred
Securities) by the Issuer Trust of such Preferred Securities during any
such Extension Period. During such Extension Period PacifiCorp may not, any
may not permit any subsidiary of PacifiCorp to, (i) declare, set aside or
pay any dividend or distribution on, or repurchase, redeem, or otherwise
acquire or make any sinking fund payment with respect to, any shares of
PacifiCorp's capital stock or (ii) make any payment of principal, interest
or premium, if any, on or repay, repurchase or redeem any debt securities
that rank pari passu with or junior in interest to the Corresponding Junior
Subordinated Debentures or make any guarantee payments with respect to the
foregoing (other than (a) dividends or distributions in shares of its
capital stock or in rights to acquire shares of its capital stock, (b)
conversions into or exchanges for shares of its capital stock, (c)
redemptions, purchases or other acquisitions of shares of its capital stock
made for the purpose of an employee incentive plan or benefit plan of
PacifiCorp or any of its subsidiaries and mandatory redemptions or sinking
fund payments with respect to any series of Preferred Stock of PacifiCorp
that are subject to mandatory redemption or sinking fund requirements,
provided that the aggregate stated value of all such series outstanding at
the time of any such payment does not exceed five percent of the aggregate
of (1) the total principal amount of all bonds or other securities
representing secured indebtedness issued or assumed by PacifiCorp and then
outstanding and (2) the capital and surplus of PacifiCorp to be stated on
the books of account of PacifiCorp 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, and (d) payments under any guarantee by PacifiCorp with respect
to any securities of a subsidiary of PacifiCorp, provided that the proceeds
from the issuance of such securities were issued to purchase Junior
Subordinated Debentures of any series under the Indenture). See
"Description of Junior Subordinated Debentures--Option to Extend Interest
Payment Date," "--Certain Covenants of PacifiCorp" and "Description of
Corresponding Junior Subordinated Debentures--Certain Covenants of
PacifiCorp."
The revenue of each Issuer Trust available for distribution to
holders of its Preferred Securities will be limited to payments under the
Corresponding Junior Subordinated Debentures in which such Issuer Trust
will invest the proceeds from the issuance and sale of its Preferred
Securities and its Common Securities. See "Description of Corresponding
Junior Subordinated Debentures." If PacifiCorp does not make interest
payments on such Corresponding Junior Subordinated Debentures, the Property
Trustee will not have funds available to pay Distributions on the related
Preferred Securities. The payment of Distributions (if and to the extent
the Issuer Trust has funds available for the payment of such Distributions
and cash sufficient to make such payments) is guaranteed by PacifiCorp on a
limited basis as set forth herein under "Description of Guarantee."
Distributions on the Preferred Securities of each Issuer Trust
will be payable to the holders thereof as they appear on the register of
such Issuer Trust on the relevant record dates, which, as long as the
Preferred Securities remain in book-entry form, will be one Business Day
prior to the relevant Distribution Date. Subject to any applicable laws and
regulations and the provisions of the applicable Trust Agreement, each such
payment will be made as described under "--Book-entry Issuance." In the
event any Preferred Securities are not in book-entry form, the relevant
record date for such Preferred Securities shall be a date at least 15 days
prior to the relevant Distribution Date, as specified in the applicable
Prospectus Supplement.
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Redemption or Exchange
Mandatory Redemption. Upon the repayment or redemption, in whole
or in part, of any Corresponding Junior Subordinated Debentures, whether at
maturity or upon earlier redemption as provided in the Indenture, the
proceeds from such repayment or redemption shall be applied by the Property
Trustee to redeem a Like Amount (as defined below) of the related Preferred
Securities, upon not less than 30 nor more than 60 days' notice prior to
the date fixed for repayment or redemption (the "Redemption Date"), at a
redemption price equal to the aggregate liquidation preference of such
Preferred Securities plus accumulated and unpaid Distributions thereon to
the Redemption Date (the "Redemption Price") and the related amount of the
premium, if any, paid by PacifiCorp upon the concurrent redemption of such
Corresponding Junior Subordinated Debentures. See "Description of
Corresponding Junior Subordinated Debentures -- Optional Redemption." If
less than all of any series of Corresponding Junior Subordinated Debentures
are to be repaid or redeemed on a Redemption Date, then the proceeds from
such repayment or redemption shall be allocated to the redemption pro rata
of the related Preferred Securities and the Common Securities. The amount
of premium, if any, paid by PacifiCorp upon the redemption of all or any
part of any series of any Corresponding Junior Subordinated Debentures to
be repaid or redeemed on a Redemption Date shall be allocated to the
redemption pro rata of the related Preferred Securities and the Common
Securities.
PacifiCorp will have the right to redeem any series of
Corresponding Junior Subordinated Debentures (i) in whole at any time or in
part from time to time, subject to the conditions described under
"Description of Corresponding Junior Subordinated Debentures--Optional
Redemption," or (ii) at any time, in whole (but not in part), upon the
occurrence of a Tax Event or an Investment Company Event (each as defined
below, a "Special Event") and subject to the further conditions described
under "Description of Corresponding Junior Subordinated
Debentures--Optional Redemption," or (iii) as may be otherwise specified in
the applicable Prospectus Supplement.
Special Event Redemption or Distribution of Corresponding Junior
Subordinated Debentures. If a Special Event in respect of a series of
Preferred Securities shall occur and be continuing, PacifiCorp has the
right to redeem the Corresponding Junior Subordinated Debentures in whole
(but not in part) and therefore cause a mandatory redemption of such
Preferred Securities and Common Securities in whole (but not in part)
within 90 days following the occurrence of such Special Event at the
Redemption Price. Whether or not a Special Event has occurred, PacifiCorp
has the right to terminate the related Issuer Trust at any time and, after
satisfaction of liabilities to creditors of such Issuer Trust as provided
by applicable law, cause such Corresponding Junior Subordinated Debentures
to be distributed to the holders of such Preferred Securities in
liquidation of the Issuer Trust. If PacifiCorp does not elect either option
described above, the applicable series of Preferred Securities will remain
outstanding and, in the event a Tax Event has occurred and is continuing,
Additional Sums (as defined below) will be payable on the Corresponding
Junior Subordinated Debentures.
"Additional Sums" means the additional amounts as may be necessary
in order that the amount of Distributions then due and payable by an Issuer
Trust on the outstanding Preferred Securities and Common Securities of the
Issuer Trust shall not be reduced as a result of any additional taxes,
duties and other governmental charges to which such Issuer Trust has become
subject as a result of a Tax Event.
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"Investment Company Event" means the receipt by the applicable
Issuer Trust of an opinion of counsel, rendered by a law firm having a
recognized national tax and securities practice, to the effect that, as a
result of the occurrence of a change in law or regulation or a change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority (a "Change in 1940 Act
Law") the applicable Issuer Trust is or will be considered an "investment
Company" that is required to be registered under the Investment Company Act
of 1940, as amended (the "Investment Company Act"), which Change in 1940
Act Law becomes effective on or after the date of original issuance of the
series of Preferred Securities issued by the applicable Issuer Trust.
"Like Amount" means (i) with respect to a redemption of any series
of Preferred Securities, Preferred Securities of such series having a
Liquidation Amount (as defined below) equal to that portion of the
principal amount of Corresponding Junior Subordinated Debentures to be
contemporaneously redeemed in accordance with the Indenture and the
proceeds of which will be used to pay the Redemption Price of such
Preferred Securities, and (ii) with respect to a distribution of
Corresponding Junior Subordinated Debentures to holders of any series of
Preferred Securities in connection with a termination or liquidation of the
related Issuer Trust, Corresponding Junior Subordinated Debentures having a
principal amount equal to the Liquidation Amount of the Preferred
Securities of the holder to whom such Corresponding Junior Subordinated
Debentures are distributed. "Liquidation Amount" means the stated amount of
$25 per Preferred Security and Common Security.
"Tax Event" means the receipt by the applicable Issuer Trust of an
opinion of counsel, rendered by a law firm having a recognized national tax
and securities practice, to the effect that, as a result of any amendment
to, or change (including any announced prospective change) in, the laws (or
any regulations thereunder) of the United States, or any political
subdivision or taxing authority thereof or therein, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective
or which pronouncement or decision is announced on or after the date of
issuance of the Preferred Securities under the related Trust Agreement,
there is more than an insubstantial risk that (i) the applicable Issuer
Trust is, or will be within 90 days of the date of such opinion, subject to
United States federal income tax with respect to income received or accrued
on the corresponding series of Corresponding Junior Subordinated
Debentures, (ii) interest payable by PacifiCorp on such series of
Corresponding Junior Subordinated Debentures is not, or within 90 days of
the date of such opinion, will not be, deductible by PacifiCorp, in whole
or in part, for United States federal income tax purposes, or (iii) the
applicable Issuer Trust is, or will be within 90 days of the date of such
opinion, subject to more than a de minimis amount of other taxes, duties or
other governmental charges.
After the liquidation date fixed for any distribution of
Corresponding Junior Subordinated Debentures for any series of Preferred
Securities (i) such series of Preferred Securities will no longer be deemed
to be outstanding, (ii) The Depository Trust Company ("DTC") or its
nominee, as the record holder of such series of Preferred Securities, will
receive a registered global certificate or certificates representing the
Corresponding Junior Subordinated Debentures to be delivered upon such
distribution and (iii) any certificates representing such series of
Preferred Securities not held by DTC or its nominee will be deemed to
represent the Corresponding Junior Subordinated Debentures having a
principal amount equal to the stated liquidation preference of such series
of Preferred Securities, and bearing accrued and unpaid interest in an
amount equal to the accrued and unpaid Distributions on such series of
Preferred
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Securities until such certificates are presented to the Administrative
Trustees or their agent for transfer or reissuance.
There can be no assurance as to the market prices for the
Preferred Securities or the Corresponding Junior Subordinated Debentures
that may be distributed in exchange for Preferred Securities if a
termination and liquidation of an Issuer Trust were to occur. Accordingly,
the Preferred Securities that an investor may purchase, or the
Corresponding Junior Subordinated Debentures that the investor may receive
on termination and liquidation of an Issuer Trust, may trade at a discount
to the price that the investor paid to purchase the Preferred Securities
offered hereby.
Redemption Procedures
Preferred Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the applicable proceeds from the
contemporaneous redemption of the Corresponding Junior Subordinated
Debentures. Redemptions of the Preferred Securities shall be made and the
Redemption Price shall be payable on each Redemption Date only to the
extent that the related Issuer Trust has funds on hand available for the
payment of such Redemption Price. See also "--Subordination of Common
Securities."
If an Issuer Trust gives a notice of redemption in respect of its
Preferred Securities, then, by 12:00 noon, New York City time, on the
Redemption Date, to the extent funds are available, the Property Trustee
will deposit irrevocably with DTC, funds sufficient to pay the applicable
Redemption Price and will give DTC irrevocable instructions and authority
to pay the Redemption Price to the holders of such Preferred Securities.
See "--Book-entry Issuance." If such Preferred Securities are no longer in
book-entry form, such Issuer Trust, to the extent funds are available, will
irrevocably deposit with the paying agent for such Preferred Securities
funds sufficient to pay the applicable Redemption Price and will give such
paying agent irrevocable instructions and authority to pay the Redemption
Price to the holders thereof upon surrender of their certificates
evidencing such Preferred Securities. Notwithstanding the foregoing,
Distributions payable on or prior to the Redemption Date for any Preferred
Securities called for redemption shall be payable to the holder of such
Preferred Securities on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been given and funds
deposited as required, then upon the date of such deposit, all rights of
the holders of such Preferred Securities so called for redemption will
cease, except the right of the holders of such Preferred Securities to
receive the Redemption Price, but without interest on such Redemption
Price, and such Preferred Securities will cease to be outstanding. In the
event that any date fixed for redemption of Preferred Securities is not a
Business Day, then payment of the Redemption Price payable on such date
will be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such delay), except
that, if such Business Day falls in the next calendar year, such payment
will be made on the immediately preceding Business Day. In the event that
payment of the Redemption Price in respect of Preferred Securities called
for redemption is improperly withheld or refused and not paid either by the
Issuer Trust or by PacifiCorp pursuant to the Guarantee as described under
"Description of Guarantee," Distributions on such Preferred Securities will
continue to accumulate at the then applicable rate, from the Redemption
Date originally established by the Issuer Trust for such Preferred
Securities to the date such Redemption Price is actually paid, in which
case the actual payment date will be the date fixed for redemption for
purposes of calculating the Redemption Price.
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Subject to applicable law (including, without limitation, United
States federal securities law), PacifiCorp or its subsidiaries may at any
time and from time to time purchase outstanding Preferred Securities by
tender, in the open market or by private agreement.
Payment of the Redemption Price on the Preferred Securities and
any distribution of Corresponding Junior Subordinated Debentures to holders
of Preferred Securities shall be made to the applicable recordholders
thereof as they appear on the register for such Preferred Securities on the
relevant record date, which shall be one Business Day prior to the relevant
Redemption Date or liquidation date, as applicable; provided, however, that
in the event that any Preferred Securities are not in book-entry form, the
relevant record date for such Preferred Securities shall be the fifteenth
day prior to the Redemption Date or liquidation date, as applicable, as
specified in the applicable Prospectus Supplement.
If less than all of the Preferred Securities issued by an Issuer
Trust are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of such Preferred Securities to be redeemed shall be
allocated pro rata among the Preferred Securities. The particular Preferred
Securities to be redeemed shall be selected on a pro rata basis not more
than 60 days prior to the Redemption Date by the Property Trustee from the
outstanding Preferred Securities not previously called for redemption, by
such method as the Property Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of portions (equal to
$25 or an integral multiple of $25 in excess thereof) of the liquidation
preference of Preferred Securities of a denomination larger than $25. The
Property Trustee shall promptly notify the trust registrar in writing of
the Preferred Securities selected for redemption and, in the case of any
Preferred Securities selected for partial redemption, the liquidation
preference thereof to be redeemed. For all purposes of each Trust
Agreement, unless the context otherwise requires, all provisions relating
to the redemption of Preferred Securities shall relate, in the case of any
Preferred Securities redeemed or to be redeemed only in part, to the
portion of the aggregate liquidation preference of Preferred Securities
which has been or is to be redeemed.
Notice of any redemption will be mailed at least 30 days but not
more than 60 days before the Redemption Date to each holder of Preferred
Securities to be redeemed at its registered address.
Subordination of Common Securities
Payment of Distributions (including Additional Sums, if
applicable) on, and the Redemption Price of, each Issuer Trust's Preferred
Securities and Common Securities, as applicable, shall be made pro rata
based on the Liquidation Amount of such Preferred Securities and Common
Securities; provided, however, that if on any Distribution Date or
Redemption Date a Debenture Event of Default shall have occurred and be
continuing, no payment of any Distribution (including Additional Sums, if
applicable) on, or Redemption Price of, any of the Issuer Trust's Common
Securities, and no other payment on account of the redemption, liquidation
or other acquisition of such Common Securities, shall be made unless
payment in full in cash of all accumulated and unpaid Distributions
(including Additional Amounts, if applicable) on all of the Issuer Trust's
outstanding Preferred Securities for all Distribution periods terminating
on or prior thereto, or in the case of payment of the Redemption Price the
full amount of such Redemption Price on all of the Issuer Trust's
outstanding Preferred Securities then called for redemption, shall have
been made or provided for, and all funds available to the Property Trustee
shall first be applied to the payment in full in cash of all Distributions
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(including Additional Sums, if applicable) on, or Redemption Price of, the
Issuer Trust's Preferred Securities then due and payable.
In the case of any Event of Default resulting from a Debenture
Event of Default, PacifiCorp as holder of each Issuer Trust's Common
Securities will be deemed to have waived any right to act with respect to
any such Event of Default under the applicable Trust Agreement until the
effect of all such Events of Default with respect to such Preferred
Securities have been cured, waived or otherwise eliminated. Until any such
Events of Default under the applicable Trust Agreement with respect to the
Preferred Securities have been so cured, waived or otherwise eliminated,
the Property Trustee shall act solely on behalf of the holders of such
Preferred Securities and not on behalf of PacifiCorp as holder of the
Common Securities, and only the holders of such Preferred Securities will
have the right to direct the Property Trustee to act on their behalf.
Liquidation Distribution Upon Termination
Pursuant to each Trust Agreement, each Issuer Trust shall
automatically terminate upon expiration of its term and shall terminate on
the first to occur of: (i) certain events of bankruptcy, dissolution or
liquidation of PacifiCorp; (ii) the distribution of a Like Amount of the
Corresponding Junior Subordinated Debentures to the holders of its
Preferred Securities if PacifiCorp, as Depositor, has given written
direction to the Property Trustee to terminate such Issuer Trust (which
direction is optional and wholly within the discretion of PacifiCorp as
Depositor); (iii) the redemption of all of such Issuer Trust's Preferred
Securities as described under "--Redemption or Exchange"; and (iv) the
entry by a court of competent jurisdiction of an order for the dissolution
of such Issuer Trust.
If an early termination occurs as described in clause (i), (ii) or
(iv) above, such Issuer Trust shall be liquidated by the Issuer Trustees as
expeditiously as the Issuer Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of such Issuer
Trust as provided by applicable law, to the holders of such Preferred
Securities and Common Securities a Like Amount of the Corresponding Junior
Subordinated Debentures, unless such distribution is determined by the
Property Trustee not to be practical, in which event such holders will be
entitled to receive out of the assets of the Issuer Trust available for
distribution to holders, after satisfaction of liabilities to creditors of
such Issuer Trust as provided by applicable law, an amount equal to, in the
case of holders of Preferred Securities, the aggregate of the liquidation
preference plus accrued and unpaid Distributions thereon to the date of
payment (such amount being the "Liquidation Distribution"). If such
Liquidation Distribution can be paid only in part because such Issuer Trust
has insufficient assets available to pay in full the aggregate Liquidation
Distribution, then the amounts payable directly by such Issuer Trust on its
Preferred Securities shall be paid on a pro rata basis. The holders of such
Issuer Trust's Common Securities will be entitled to receive distributions
upon any such liquidation pro rata with the holders of its Preferred
Securities, except that if a Debenture Event of Default has occurred and is
continuing, such Preferred Securities shall have a priority over such
Common Securities. A supplemental indenture may provide that if an early
termination occurs as described in clause (iv) above, the Corresponding
Junior Subordinated Debentures may be subject to optional redemption in
whole (but not in part).
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Events of Default; Notice
Any one of the following events constitutes an "Event of Default"
under each Trust Agreement (an "Event of Default") with respect to the
Preferred Securities issued thereunder (whatever the reason for such Event
of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or
governmental body):
(i) the occurrence of a Debenture Event of Default under
the Indenture with respect to the Corresponding Junior
Subordinated Debentures (see "Description of Junior Subordinated
Debentures -- Debenture Events of Default"); or
(ii) default by the Trust in the payment of any
Distribution with respect to Preferred Securities of that issue
when it becomes due and payable, and continuation of such default
for a period of 30 days; or
(iii) default by the Trust in the payment of any
Redemption Price of any Preferred Security or Common Security of
that issue when it becomes due and payable; or
(iv) default in the performance, or breach, in any
material respect, of any covenant or warranty of the Issuer
Trustees in such Trust Agreement (other than a covenant or
warranty a default in the performance of which or the breach of
which is dealt with in clause (ii) or (iii) above), and
continuation of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to
the defaulting Issuer Trustee or Trustees by the holders of at
least 25% in aggregate liquidation preference of the outstanding
Preferred Securities of that issue, a written notice specifying
such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" under such Trust
Agreement; or
(v) the occurrence of certain events of bankruptcy or
insolvency with respect to the Property Trustee and the failure by
PacifiCorp to appoint a successor Property Trustee within 60 days
thereof.
Within 15 Business Days after the occurrence of any Event of
Default actually known to the Property Trustee, the Property Trustee shall
transmit notice of such Event of Default to the holders of such Issuer
Trust's Preferred Securities, the Administrative Trustees and PacifiCorp,
as Depositor, unless such Event of Default shall have been cured or waived.
PacifiCorp, as Depositor, and the Administrative Trustees are required to
file annually with the Property Trustee a certificate as to whether or not
they are in compliance with all the conditions and covenants applicable to
them under each Trust Agreement.
If, in the event of a Debenture Event of Default, the Debenture
Trustee fails or the holders of not less than 25% in aggregate principal
amount of the Corresponding Junior Subordinated Debentures fail to declare
the principal due and payable, the holders of at least 25% in aggregate
liquidation preference of the related series of Preferred Securities shall
have such right. Except as set forth above, the existence of an Event of
Default does not entitle the
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holders of Preferred Securities to accelerate the maturity thereof or
declare amounts due and payable.
The holders of the Preferred Securities would not be able to
exercise directly any other remedies available to the holder of the Junior
Subordinated Debentures unless the Property Trustee or the Debenture
Trustee, acting for the benefit of the Property Trustee, fails to do so for
60 days. In such event, to the fullest extent permitted by law, the holders
of at least 25% in aggregate liquidation preference of the outstanding
Preferred Securities would have the right to directly institute proceedings
for enforcement of payment to such holders of principal of, or premium, if
any, or interest on the Junior Subordinated Debentures having a principal
amount equal to the aggregate liquidation preference of the Preferred
Securities of such holders.
If a Debenture Event of Default with respect to any Corresponding
Junior Subordinated Debentures has occurred and is continuing, the
corresponding Preferred Securities shall have a preference over the related
Common Securities upon termination of the applicable Issuer Trust as
described above. See "--Liquidation Distribution Upon Termination."
Removal of Issuer Trustees
Unless a Debenture Event of Default with respect to any
Corresponding Junior Subordinated Debentures shall have occurred and be
continuing, the applicable Issuer Trustee may be removed at any time by the
holder of the related Common Securities. If such a Debenture Event of
Default has occurred and is continuing, the Property Trustee and the
Delaware Trustee may be removed at such time by the holders of a majority
in Liquidation Amount of the outstanding corresponding Preferred
Securities. In no event will the holders of the Preferred Securities have
the right to vote to appoint, remove or replace the Administrative
Trustees, which voting rights are vested exclusively in PacifiCorp as the
holder of the Common Securities. No resignation or removal of an Issuer
Trustee and no appointment of a successor trustee shall be effective until
the acceptance of appointment by the successor trustee in accordance with
the provisions of the applicable Trust Agreement.
Co-trustees and Separate Property Trustee
Unless an Event of Default shall have occurred and be continuing,
at any time or times, for the purpose of meeting the legal requirements of
the Trust Indenture Act or of any jurisdiction in which any part of the
applicable Trust Property may at the time be located, PacifiCorp, as the
holder of the Common Securities, shall have power to appoint one or more
persons either to act as a co-trustee, jointly with the Property Trustee,
of all or any part of such Trust Property, or to act as separate trustee of
any such property, in either case with such powers as may be provided in
the instrument of appointment, and to vest in such person or persons in
such capacity any property, title, right or power deemed necessary or
desirable, subject to the provisions of the applicable Trust Agreement. In
case a Debenture Event of Default has occurred and is continuing, the
Property Trustee alone shall have power to make such appointment.
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Merger or Consolidation of Issuer Trustees
Any entity into which the Property Trustee, the Delaware Trustee
or any Administrative Trustee that is not a natural person may be merged or
converted or with which it may be consolidated, or any entity resulting
from any merger, conversion or consolidation to which such Trustee shall be
a party, or any entity succeeding to all or substantially all the corporate
trust business of such Trustee, shall be the successor of such Trustee
under each Trust Agreement, provided such entity shall be otherwise
qualified and eligible.
Mergers, Consolidations, Amalgamations or Replacements of the Issuer Trusts
An Issuer Trust may not merge with or into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its properties
and assets substantially as an entirety to any corporation or other Person,
except as described below. An Issuer Trust may, at the request of
PacifiCorp, with the consent of the Administrative Trustees and without the
consent of the holders of the Preferred Securities of such Issuer Trust,
merge with or into, consolidate, amalgamate, be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to
a trust organized as such under the laws of any State; provided that (i)
such successor entity either (a) expressly assumes all of the obligations
of such Issuer Trust with respect to such Preferred Securities or (b)
substitutes for such Preferred Securities other securities having
substantially the same terms as such Preferred Securities (the "Successor
Securities") so long as the Successor Securities rank the same as such
Preferred Securities rank in priority with respect to distributions and
payments upon liquidation, redemption and otherwise, (ii) PacifiCorp
expressly appoints a trustee of such successor entity possessing
substantially the same powers and duties as the Property Trustee as the
holder of the Corresponding Junior Subordinated Debentures, (iii) the
Successor Securities are listed or traded, or any Successor Securities will
be listed or traded upon notification of issuance, on any national
securities exchange or other organization on which such Preferred
Securities are then listed, if any, (iv) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not cause
such Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization,
(v) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the holders of such Preferred Securities (including any
Successor Securities) in any material respect, (vi) such successor entity
has a purpose substantially identical to that of such Issuer Trust, (vii)
prior to such merger, consolidation, amalgamation or replacement,
PacifiCorp has received an opinion from independent counsel to such Issuer
Trust experienced in such matters to the effect that (a) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease
does not adversely affect the rights, preferences and privileges of the
holders of such Preferred Securities (including any Successor Securities)
in any material respect, and (b) following such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease, neither such
Issuer Trust nor such successor entity will be required to register as an
"investment Company" under the Investment Company Act and (viii) PacifiCorp
or any permitted successor or assignee owns all of the common securities of
such successor entity and guarantees the obligations of such successor
entity under the Successor Securities at least to the extent provided by
the applicable Guarantee. Notwithstanding the foregoing, an Issuer Trust
shall not, except with the consent of holders of 100% in aggregate
liquidation preference of the Preferred Securities of such Issuer Trust,
consolidate, amalgamate, merge with or into, be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to
any other entity or permit any other entity to consolidate,
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amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would
cause such Issuer Trust or the successor entity to be classified as other
than a grantor trust for United States federal income tax purposes.
Voting Rights; Amendment of Trust Agreement
Except as provided below and under "Description of
Guarantee--Amendments and Assignment" and as otherwise required by law and
the applicable Trust Agreement, the holders of the Preferred Securities
will have no voting rights.
Each Trust Agreement may be amended from time to time by
PacifiCorp and the Issuer Trustees, without the consent of the holders of
the related Preferred Securities, (i) to reflect the acceptance of
appointment by a successor Issuer Trustee, (ii) to cure any ambiguity,
correct or supplement any provisions in such Trust Agreement that may be
inconsistent with any other provision, or to make any other provisions with
respect to matters or questions arising under such Trust Agreement, that
shall not be inconsistent with the other provisions of such Trust
Agreement, or (iii) to modify, eliminate or add to any provisions of such
Trust Agreement to such extent as shall be necessary to ensure that the
related Issuer Trust will be classified for United States federal income
tax purposes as a grantor trust at all times that any Preferred Securities
and Common Securities of such Issuer Trust are outstanding or to ensure
that such Issuer Trust will not be required to register as an "investment
Company" under the Investment Company Act, provided, however, that in the
case of clause (ii) above, such action shall not adversely affect in any
material respect the interests of any holder of Preferred Securities or
Common Securities of such Issuer Trust, and any amendments of such Trust
Agreement shall become effective when notice thereof is given to the
holders of such Preferred Securities and Common Securities. Such Trust
Agreement may be amended by the Issuer Trustees and PacifiCorp with (i) the
consent of holders representing not less than a majority (based upon
Liquidation Amounts) of such outstanding Preferred Securities and Common
Securities and (ii) receipt by the Issuer Trustees of an opinion of counsel
to the effect that such amendment or the exercise of any power granted to
the Issuer Trustees in accordance with such amendment will not affect such
Issuer Trust's status as a grantor trust for United States federal income
tax purposes or such Issuer Trust's exemption from status of an "investment
Company" under the Investment Company Act, provided, further that without
the consent of each holder of such Preferred Securities and Common
Securities, such Trust Agreement may not be amended to (i) change the
amount or timing of any Distribution on such Preferred Securities and
Common Securities or otherwise adversely affect the amount of any
Distribution required to be made in respect of such Preferred Securities
and Common Securities as of a specified date or (ii) restrict the right of
holders of such Preferred Securities and Common Securities to institute
suit for the enforcement of any such payment on or after such date as
described under "--Events of Default; Notice" above.
So long as any Corresponding Junior Subordinated Debentures are
held by the Property Trustee, the Issuer Trustees shall not (i) direct the
time, method and place of conducting any proceeding for any remedy
available to the Debenture Trustee or executing any trust or power
conferred on the Property Trustee with respect to such Corresponding Junior
Subordinated Debentures, (ii) waive any past default that is waivable under
the Indenture, (iii) exercise any right to rescind or annul a declaration
that the principal of all the Corresponding Junior Subordinated Debentures
shall be due and payable or (iv) consent to any amendment, modification or
termination of the Indenture or such Corresponding Junior Subordinated
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Debentures, where such consent shall be required, without, in each case,
obtaining the prior approval of the holders of a majority in aggregate
liquidation preference of all outstanding corresponding Preferred
Securities; provided, however, that where a consent under the Indenture
would require the consent of each holder of Corresponding Junior
Subordinated Debentures affected thereby, no such consent shall be given by
the Property Trustee without the prior consent of each holder of the
corresponding Preferred Securities. The Issuer Trustees shall not revoke
any action previously authorized or approved by a vote of the holders of
the Preferred Securities except by subsequent vote of the holders of the
Preferred Securities. The Property Trustee shall notify each holder of
record of the Preferred Securities of any notice of default with respect to
the Corresponding Junior Subordinated Debentures. In addition to obtaining
the foregoing approvals of the holders of the Preferred Securities, prior
to taking any of the foregoing actions, the Issuer Trustees shall obtain an
opinion of counsel experienced in such matters to the effect that the
applicable Issuer Trust will not be classified as a corporation for United
States federal income tax purposes on account of such action.
Any required approval of holders of Preferred Securities may be
given at a meeting of holders of Preferred Securities convened for such
purpose or pursuant to written consent. The Property Trustee will cause a
notice of any meeting at which holders of Preferred Securities are entitled
to vote, or of any matter upon which action by written consent of such
holders is to be taken, to be given to each holder of record of Preferred
Securities in the manner set forth in the applicable Trust Agreement.
No vote or consent of the holders of Preferred Securities will be
required for an Issuer Trust to redeem and cancel its Preferred Securities
in accordance with the applicable Trust Agreement.
Notwithstanding that holders of Preferred Securities are entitled
to vote or consent under any of the circumstances described above, any of
the Preferred Securities that are owned by PacifiCorp, the Issuer Trustees
or any affiliate of PacifiCorp or any Issuer Trustees shall, for purposes
of such vote or consent, be treated as if they were not outstanding.
Payment and Paying Agency
Payments in respect of the Preferred Securities shall be made to
DTC, which shall credit the relevant accounts at DTC on the applicable
Distribution Dates or, if any Issuer Trust's Preferred Securities are not
held by DTC, such payments shall be made by check mailed to the address of
the holder entitled thereto as such address shall appear on the Register.
Unless otherwise specified in the applicable Prospectus Supplement, the
paying agent (the "Paying Agent") shall initially be the Property Trustee
and any co-paying agent chosen by the Property Trustee and acceptable to
the Administrative Trustees and PacifiCorp. The Paying Agent shall be
permitted to resign as Paying Agent upon 30 days' written notice to the
Property Trustee and PacifiCorp. In the event that the Property Trustee
shall no longer be the Paying Agent, the Administrative Trustees shall
appoint a successor (which shall be a bank or trust Company acceptable to
the Property Trustee and PacifiCorp) to act as Paying Agent.
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Book-entry Issuance
DTC will act as securities depositary for all of the Preferred
Securities. The Preferred Securities will be issued only as
fully-registered securities registered in the name of Cede & Co. (DTC's
nominee). One or more fully-registered global certificates will be issued
for the Preferred Securities of each Issuer Trust, representing in the
aggregate the total number of such Issuer Trust's Preferred Securities, and
will be deposited with DTC.
DTC is a limited purpose trust Company organized under the New
York Banking Law, a "banking organization" within the meaning of the New
York Banking Law, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code,
and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act. DTC holds securities that its participants
("Participants") deposit with DTC. DTC also facilitates the settlement
among Participants of securities transactions, such as transfers and
pledges, in deposited securities through electronic computerized book-entry
changes in Participants' accounts, thereby eliminating the need for
physical movement of securities certificates. Direct Participants include
securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations ("Direct Participants"). DTC
is owned by a number of its Direct Participants and by the New York Stock
Exchange, Inc., the American Stock Exchange, Inc. and the National
Association of Securities Dealers, Inc. Access to the DTC system is also
available to others such as securities brokers and dealers, banks and trust
companies that clear through or maintain custodial relationships with
Direct Participants, either directly or indirectly ("Indirect
Participants"). The rules applicable to DTC and its Participants are on
file with the Commission.
Purchases of Preferred Securities within the DTC system must be
made by or through Direct Participants, which will receive a credit for the
Preferred Securities on DTC's records. The ownership interest of each
actual purchaser of each Preferred Security ("Beneficial Owner") is in turn
to be recorded on the Direct and Indirect Participants' records. Beneficial
Owners will not receive written confirmation from DTC of their purchases,
but Beneficial Owners are expected to receive written confirmations
providing details of the transactions, as well as periodic statements of
their holdings, from the Direct or Indirect Participants through which the
Beneficial Owners purchased Preferred Securities. Transfers of ownership
interests in the Preferred Securities are to be accomplished by entries
made on the books of Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing their
ownership interests in Preferred Securities, except in the event that use
of the book-entry system for the Preferred Securities of such Issuer Trust
is discontinued.
DTC has no knowledge of the actual Beneficial Owners of the
Preferred Securities; DTC's records reflect only the identity of the Direct
Participants to whose accounts such Preferred Securities are credited,
which may or may not be the Beneficial Owners. The Participants will remain
responsible for keeping account of their holdings on behalf of their
customers.
Redemption notices shall be sent to Cede & Co. as the registered
holder of the Preferred Securities. If less than all of an Issuer Trust's
Preferred Securities are being redeemed, DTC's current practice is to
determine by lot the amount of the interest of each Direct Participant to
be redeemed.
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Although voting with respect to the Preferred Securities is
limited to the holders of record of the Preferred Securities, in those
instances in which a vote is required, neither DTC nor Cede & Co. will
itself consent or vote with respect to Preferred Securities. Under its
usual procedures, DTC would mail an omnibus proxy (the "Omnibus Proxy") to
the Property Trustee as soon as possible after the record date. The Omnibus
Proxy assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts such Preferred Securities are credited on
the record date (identified in a listing attached to the Omnibus Proxy).
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by
Direct Participants and Indirect Participants to Beneficial Owners and the
voting rights of Direct Participants, Indirect Participants and Beneficial
Owners will be governed by arrangements among them, subject to any
statutory or regulatory requirements as may be in effect from time to time.
Distribution payments on the Preferred Securities will be made by
the Property Trustee to DTC. DTC's practice is to credit Direct
Participants' accounts on the relevant payment date in accordance with
their respective holdings shown on DTC's records unless DTC has reason to
believe that it will not receive payments on such payment date. Payments by
Participants to Beneficial Owners will be governed by standing instructions
and customary practices and will be the responsibility of such Participant
and not of DTC, the Property Trustee, the Issuer Trust thereof or
PacifiCorp, subject to any statutory or regulatory requirements as may be
in effect from time to time. Payment of Distributions to DTC is the
responsibility of the Property Trustee, disbursement of such payments to
Direct Participants is the responsibility of DTC, and disbursements of such
payments to the Beneficial Owners is the responsibility of Direct and
Indirect Participants.
DTC may discontinue providing its services as securities
depositary with respect to any of the Preferred Securities at any time by
giving reasonable notice to the Property Trustee and PacifiCorp. In the
event that a successor securities depositary is not obtained, definitive
Preferred Security certificates representing such Preferred Securities are
required to be printed and delivered. PacifiCorp, at its option, may decide
to discontinue use of the system of book-entry transfers through DTC (or a
successor depositary). After a Debenture Event of Default, the holders of a
majority in liquidation preference of Preferred Securities may determine to
discontinue the system of book-entry transfers through DTC. In any such
event, definitive certificates for such Issuer Trust's Preferred Securities
will be printed and delivered.
The information in this section concerning DTC and DTC's
book-entry system has been obtained from sources that the Issuer Trusts and
PacifiCorp believe to be accurate, but the Issuer Trusts and PacifiCorp
assume no responsibility for the accuracy thereof. Neither the Issuer
Trusts nor PacifiCorp has any responsibility for the performance by DTC or
its Participants of their respective obligations as described herein or
under the rules and procedures governing their respective operations.
Registrar and Transfer Agent
Unless otherwise specified in the applicable Prospectus
Supplement, the Property Trustee will act as registrar and transfer agent
for the Preferred Securities.
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Registration of transfers of Preferred Securities will be effected
without charge by or on behalf of each Issuer Trust, but upon payment of
any tax or other governmental charges that may be imposed in connection
with any transfer or exchange. The Issuer Trusts will not be required to
register or cause to be registered the transfer of their Preferred
Securities after such Preferred Securities have been called for redemption.
Information Concerning the Property Trustee
The Property Trustee, other than during the occurrence and
continuance of an Event of Default, undertakes to perform only such duties
as are specifically set forth in each Trust Agreement and, after such Event
of Default, must exercise the same degree of care and skill as a prudent
person would exercise or use in the conduct of his or her own affairs.
Subject to this provision, the Property Trustee is under no obligation to
exercise any of the powers vested in it by the applicable Trust Agreement
at the request of any holder of Preferred Securities unless it is offered
reasonable indemnity against the costs, expenses and liabilities that might
be incurred thereby. If no Event of Default has occurred and is continuing
and the Property Trustee is required to decide between alternative causes
of action, construe ambiguous provisions in the applicable Trust Agreement
or is unsure of the application of any provision of the applicable Trust
Agreement, and the matter is not one on which holders of Preferred
Securities are entitled under such Trust Agreement to vote, then the
Property Trustee shall take such action as is directed by PacifiCorp and if
not so directed, shall take such action as it deems advisable and in the
best interests of the holders of the Preferred Securities and the Common
Securities and will have no liability except for its own bad faith,
negligence or willful misconduct.
Miscellaneous
The Administrative Trustees are authorized and directed to conduct
the affairs of and to operate the Issuer Trusts in such a way that no
Issuer Trust will be deemed to be an "investment Company" required to be
registered under the Investment Company Act or classified as an association
taxable as a corporation for United States federal income tax purposes and
so that the Corresponding Junior Subordinated Debentures will be treated as
indebtedness of PacifiCorp for United States federal income tax purposes.
In this connection, PacifiCorp and the Administrative Trustees are
authorized to take any action, not inconsistent with applicable law, the
certificate of trust of each Issuer Trust or each Trust Agreement, that
PacifiCorp and the Administrative Trustees determine in their discretion to
be necessary or desirable for such purposes, as long as such action does
not materially adversely affect the interests of the holders of the related
Preferred Securities.
Holders of the Preferred Securities have no preemptive or similar
rights.
No Issuer Trust may borrow money or issue debt or mortgage or
pledge any of its assets.
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DESCRIPTION OF GUARANTEE
Each Guarantee will be executed and delivered by PacifiCorp
concurrently with the issuance by each Issuer Trust of its Preferred
Securities for the benefit of the holders from time to time of such
Preferred Securities. The Bank of New York will act as indenture trustee
("Guarantee Trustee") under each Guarantee for the purposes of compliance
with the Trust Indenture Act and each Guarantee will be qualified as an
indenture under the Trust Indenture Act. This summary of certain provisions
of the Guarantees does not purport to be complete and is subject to, and
qualified in its entirety by reference to, all of the provisions of each
Guarantee, including the definitions therein of certain terms, and the
Trust Indenture Act. The form of each Guarantee has been filed as an
exhibit to the Registration Statement of which this Prospectus forms a
part. Reference in this summary to the Preferred Securities and the Issuer
Trust mean the Preferred Securities of an Issuer Trust and such Issuer
Trust, respectively, to which a Guarantee relates. The Guarantee Trustee
will hold each Guarantee for the benefit of the holders of the related
Issuer Trust's Preferred Securities.
General
PacifiCorp will irrevocably agree to pay in full on a subordinated
basis, to the extent set forth herein, the Guarantee Payments (as defined
below) to the holders of the Preferred Securities, as and when due,
regardless of any defense, right of set-off or counterclaim that such
Issuer Trust may have or assert other than the defense of payment. The
following payments with respect to the Preferred Securities, to the extent
not paid by or on behalf of the related Issuer Trust (the "Guarantee
Payments"), will be subject to the Guarantee: (i) any accumulated and
unpaid Distributions required to be paid on such Preferred Securities, to
the extent that such Issuer Trust has funds on hand available therefor,
(ii) the Redemption Price with respect to any Preferred Securities called
for redemption to the extent that such Issuer Trust has funds on hand
available therefor, and (iii) upon a voluntary or involuntary dissolution,
winding up or liquidation of such Issuer Trust (unless the Corresponding
Junior Subordinated Debentures are distributed to holders of such Preferred
Securities), the lesser of (a) the Liquidation Amount plus accumulated and
unpaid Distributions on the Preferred Securities to the date of payment to
the extent that such Issuer Trust has funds on hand available therefor and
(b) the amount of assets of such Issuer Trust remaining available for
distribution to holders of Preferred Securities. PacifiCorp's obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by PacifiCorp to the holders of the applicable Preferred Securities
or by causing the Issuer Trust to pay such amounts to such holders.
Each Guarantee will be an irrevocable guarantee on a subordinated
basis of the related Issuer Trust's obligations under the Preferred
Securities, but will apply only to the extent that such related Issuer
Trust has funds sufficient to make such payments, and is not a guarantee of
collection.
If PacifiCorp does not make interest payments on the Corresponding
Junior Subordinated Debentures held by the Issuer Trust, the Issuer Trust
will not be able to pay Distributions on the Preferred Securities and will
not have funds available therefor. Each Guarantee will rank subordinate and
junior in right of payment to all Senior Indebtedness of PacifiCorp. See
"-- Status of the Guarantee." Except as otherwise provided in the
applicable Prospectus Supplement, the Guarantees do not limit the
incurrence or issuance of other secured or unsecured
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debt of PacifiCorp, whether under the Indenture or any existing or other
indenture that PacifiCorp may enter into in the future or otherwise.
PacifiCorp has, through the applicable Guarantee, the applicable
Trust Agreement, the Junior Subordinated Debentures, the Indenture and the
Expense Agreement (as defined below), taken together, fully, irrevocably
and unconditionally guaranteed all of the Issuer Trust's obligations under
the Preferred Securities. No single document standing alone or operating in
conjunction with fewer than all of the other documents constitutes such a
guarantee. It is only the combined operation of these documents that has
the effect of providing a full, irrevocable and unconditional guarantee of
the Issuer Trust's obligations under the Preferred Securities. See
"Relationship Among the Preferred Securities, the Junior Subordinated
Debentures and the Guarantee--General."
Status of the Guarantee
Each Guarantee will constitute an unsecured obligation of
PacifiCorp and will rank subordinate and junior in right of payment to all
Senior Indebtedness.
Each Guarantee will rank pari passu with all other Guarantees
issued by PacifiCorp. Each Guarantee will constitute a guarantee of payment
and not of collection (i.e., the guaranteed party may institute a legal
proceeding directly against the guarantor to enforce its rights under the
Guarantee without first instituting a legal proceeding against any other
person or entity). Each Guarantee will be held for the benefit of the
holders of the related Preferred Securities. Each Guarantee will not be
discharged except by payment of the Guarantee Payments in full to the
extent not paid by the Issuer Trust or upon distribution to the holders of
the Preferred Securities of the Corresponding Junior Subordinated
Debentures. None of the Guarantees places a limitation on the amount of
additional Senior Indebtedness that may be incurred by PacifiCorp.
PacifiCorp expects from time to time to incur substantial additional
indebtedness constituting Senior Indebtedness.
Amendments and Assignment
Except with respect to any changes which do not materially
adversely affect the rights of holders of the related Preferred Securities
(in which case no vote will be required), no Guarantee may be amended
without the prior approval of the holders of not less than a majority of
the aggregate liquidation preference of such outstanding Preferred
Securities. The manner of obtaining any such approval will be as set forth
under "Description of the Preferred Securities -- Voting Rights; Amendment
of Trust Agreement." All guarantees and agreements contained in each
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of PacifiCorp and shall inure to the benefit of the holders
of the related Preferred Securities then outstanding.
Events of Default
An event of default under each Guarantee will occur upon the
failure of PacifiCorp to perform any of its payment or other obligations
thereunder. The holders of not less than a majority in aggregate
Liquidation Amount of the related Preferred Securities have the right to
direct the time, method and place of conducting any proceeding for any
remedy available to the
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Guarantee Trustee in respect of such Guarantee or to direct the exercise of
any trust or power conferred upon the Guarantee Trustee under such
Guarantee.
Any holder of the Preferred Securities may institute a legal
proceeding directly against PacifiCorp to enforce its rights under such
Guarantee without first instituting a legal proceeding against the Issuer
Trust, the Guarantee Trustee or any other person or entity.
PacifiCorp, as guarantor, is required to file annually with the
Guarantee Trustee a certificate as to whether or not PacifiCorp is in
compliance with all the conditions and covenants applicable to it under the
Guarantee.
Information Concerning the Guarantee Trustee
The Guarantee Trustee, other than during the occurrence and
continuance of a default by PacifiCorp in performance of any Guarantee,
undertakes to perform only such duties as are specifically set forth in
each Guarantee and, after default with respect to any Guarantee, must
exercise the same degree of care and skill as a prudent person would
exercise or use in the conduct of his or her own affairs. Subject to this
provision, the Guarantee Trustee is under no obligation to exercise any of
the powers vested in it by any Guarantee at the request of any holder of
any Preferred Securities unless it is offered reasonable indemnity against
the costs, expenses and liabilities that might be incurred thereby.
Termination of the Guarantee
Each Guarantee will terminate and be of no further force and
effect upon full payment of the Redemption Price of the related Preferred
Securities, upon full payment of the amounts payable upon liquidation of
the related Issuer Trust or upon distribution of Corresponding Junior
Subordinated Debentures to the holders of the related Preferred Securities.
Each Guarantee will continue to be effective or will be reinstated, as the
case may be, if at any time any holder of the related Preferred Securities
must restore payment of any sums paid under such Preferred Securities or
such Guarantee.
Governing Law
Each Guarantee will be governed by and construed in accordance
with the laws of the State of New York.
The Expense Agreement
Pursuant to an Expense Agreement entered into by PacifiCorp under
each Trust Agreement (the "Expense Agreement"), PacifiCorp will irrevocably
and unconditionally guarantee to each person or entity to whom the Issuer
Trust becomes indebted or liable, the full payment of any costs, expenses
or liabilities of the Issuer Trust, other than obligations of the Issuer
Trust to pay to the holders of any Preferred Securities or other similar
interests in the Issuer Trust the amounts due such holders pursuant to the
terms of the Preferred Securities or such other similar interests, as the
case may be.
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DESCRIPTION OF CORRESPONDING
JUNIOR SUBORDINATED DEBENTURES
The Corresponding Junior Subordinated Debentures are to be issued
in one or more series under the Indenture with terms corresponding to the
terms of the related Preferred Securities. See "Description of Junior
Subordinated Debentures." This summary of certain terms and provisions of,
or relating to, Corresponding Junior Subordinated Debentures and the
Indenture does not purport to be complete and is subject to, and is
qualified in its entirety by reference to, the Indenture, the form of which
is filed as an exhibit to the Registration Statement of which this
Prospectus forms a part, and to the Trust Indenture Act. Whenever
particular defined terms of the Indenture (as supplemented or amended from
time to time) are referred to herein or in a Prospectus Supplement, such
defined terms are incorporated herein or therein by reference.
General
Concurrently with the issuance of each Issuer Trust's Preferred
Securities, such Issuer Trust will invest the proceeds thereof and the
consideration paid by PacifiCorp for the Common Securities in a series of
Corresponding Junior Subordinated Debentures issued by PacifiCorp to such
Issuer Trust. Each series of Corresponding Junior Subordinated Debentures
will be in the principal amount equal to the aggregate stated Liquidation
Amount of the related Preferred Securities plus PacifiCorp's concurrent
investment in the Common Securities and will rank pari passu with all other
series of Junior Subordinated Debentures. The Corresponding Junior
Subordinated Debentures will be unsecured and subordinate and junior in
right of payment to the extent and in the manner set forth in the Indenture
to all Senior Indebtedness of PacifiCorp. See "Description of Junior
Subordinated Debentures--Subordination" and the Prospectus Supplement
relating to any offering of related Preferred Securities.
Optional Redemption
Unless otherwise specified in the applicable Prospectus
Supplement, PacifiCorp may, at its option, redeem the Corresponding Junior
Subordinated Debentures of any series in whole at any time or in part from
time to time. Except as otherwise set forth in the applicable Prospectus
Supplement, the redemption price for any Corresponding Junior Subordinated
Debentures so redeemed shall be equal to any accrued and unpaid interest
thereon to the date fixed for redemption, plus the principal amount
thereof. See "Description of Junior Subordinated Debentures--Redemption."
If a Special Event in respect of an Issuer Trust shall occur and
be continuing, PacifiCorp may, at its option, redeem the Corresponding
Junior Subordinated Debentures at any time within 90 days of the occurrence
of such Special Event, in whole but not in part, subject to the provisions
of the Indenture. The redemption price for any Corresponding Junior
Subordinated Debentures shall be equal to 100% of the principal amount of
such Corresponding Junior Subordinated Debentures then outstanding plus
accrued and unpaid interest to the date fixed for redemption.
For so long as the applicable Issuer Trust is the holder of all
the outstanding series of Corresponding Junior Subordinated Debentures, the
proceeds of any such redemption will be used by the Issuer Trust to redeem
the related Preferred Securities in accordance with their terms. PacifiCorp
may not redeem a series of Corresponding Junior Subordinated Debentures
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in part unless all accrued and unpaid interest has been paid in full on all
outstanding Corresponding Junior Subordinated Debentures of such series for
all interest periods terminating on or prior to the Redemption Date.
Certain Covenants of PacifiCorp
PacifiCorp will covenant in the applicable Supplemental Indenture
as to each series of Corresponding Junior Subordinated Debentures, that if
and so long as (i) the Issuer Trust of the corresponding series of
Preferred Securities and Common Securities is the holder of all such
Corresponding Junior Subordinated Debentures, (ii) a Tax Event in respect
of such Issuer Trust has occurred and is continuing and (iii) PacifiCorp
has elected, and has not revoked such election, to pay Additional Sums in
respect of such Preferred Securities and Common Securities, PacifiCorp will
pay to such Issuer Trust such Additional Sums. PacifiCorp will also
covenant, as to each series of Corresponding Junior Subordinated
Debentures, that it will not, and will not permit any subsidiary of
PacifiCorp to, (i) declare, set aside or pay any dividend or distribution
on, or repurchase, redeem or otherwise acquire, or make any sinking fund
payment for the purchase or redemption of, any shares of its capital stock
or (ii) make any payment of principal, interest or premium, if any, on or
repay or repurchase or redeem any debt securities (including other
Corresponding Junior Subordinated Debentures) that rank pari passu with or
junior in interest to the Corresponding Junior Subordinated Debentures or
make any guarantee payments with respect to the foregoing (other than (a)
dividends or distributions in shares of its capital stock or in rights to
acquire shares of its capital stock, (b) conversions into or exchanges for
shares of its capital stock, (c) redemptions, purchases or other
acquisitions of shares of its capital stock made for the purpose of an
employee incentive plan or benefit plan of PacifiCorp or any of its
subsidiaries and mandatory redemptions or sinking fund payments with
respect to any series of Preferred Stock of PacifiCorp that are subject to
mandatory redemption or sinking fund requirements, provided that the
aggregate stated value of all such series outstanding at the time of any
such payment does not exceed five percent of the aggregate of (1) the total
principal amount of all bonds or other securities representing secured
indebtedness issued or assumed by PacifiCorp and then outstanding and (2)
the capital and surplus of PacifiCorp to be stated on the books of account
of PacifiCorp 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, and (d) payments
under any guarantee by PacifiCorp with respect to any securities of a
subsidiary of PacifiCorp, provided that the proceeds from the issuance of
such securities were used to purchase Junior Subordinated Debentures of any
series under the Indenture) if at such time (i) there shall have occurred
any event of which PacifiCorp has actual knowledge that (a) with the giving
of notice or the lapse of time, or both, would constitute a "Debenture
Event of Default" under the Indenture with respect to Corresponding Junior
Subordinated Debentures of such series and (b) in respect of which
PacifiCorp shall not have taken reasonable steps to cure, (ii) PacifiCorp
shall be in default with respect to its payment of any obligations under
the related Guarantee or (iii) PacifiCorp shall have given notice of its
selection of an Extension Period as provided in the Indenture with respect
to Corresponding Junior Subordinated Debentures of such series and shall
not have rescinded such notice, or such Extension Period, or any extension
thereof, shall be continuing.
PacifiCorp will also covenant, as to each series of Corresponding
Junior Subordinated Debentures, (i) to maintain directly or indirectly 100%
ownership of the Common Securities of
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the Issuer Trust to which Corresponding Junior Subordinated Debentures have
been issued, provided that certain successors which are permitted pursuant
to the Indenture may succeed to PacifiCorp's ownership of the Common
Securities, (ii) not to voluntarily terminate, wind-up or liquidate any
Issuer Trust, except (a) in connection with a distribution of Corresponding
Junior Subordinated Debentures to the holders of the Preferred Securities
in liquidation of such Issuer Trust or (b) in connection with certain
mergers, consolidations or amalgamations permitted by the related Trust
Agreement and (iii) to use its reasonable efforts, consistent with the
terms and provisions of the related Trust Agreement, to cause such Issuer
Trust to remain classified as a grantor trust and not to be classified as
an association taxable as a corporation for United States federal income
tax purposes. PacifiCorp will also make certain additional agreements
relating to the Indenture as provided in the last sentence of the first
paragraph under "Description of Junior Subordinated
Debentures--Modification of Indenture."
RELATIONSHIP AMONG THE PREFERRED SECURITIES,
THE CORRESPONDING JUNIOR SUBORDINATED DEBENTURES
AND THE GUARANTEES
As long as payments of interest and other payments are made when
due on each series of Corresponding Junior Subordinated Debentures, such
payments will be sufficient to cover Distributions and other payments due
on the related Preferred Securities, primarily because (i) the aggregate
principal amount of each series of Corresponding Junior Subordinated
Debentures will be equal to the sum of the aggregate Liquidation Amount of
the related Preferred Securities and related Common Securities; (ii) the
interest rate and interest and other payment dates on each series of
Corresponding Junior Subordinated Debentures will match the Distribution
rate and Distribution and other payment dates for the related Preferred
Securities; (iii) PacifiCorp shall pay for all and any costs, expenses and
liabilities of such Issuer Trust except the Issuer Trust's obligations to
holders of its Preferred Securities under such Preferred Securities; and
(iv) each Trust Agreement further provides that the Issuer Trust will not
engage in any activity that is not consistent with the limited purposes of
such Issuer Trust.
Payments of Distributions and other amounts due on the Preferred
Securities (to the extent the Issuer Trust has funds available for the
payment of such Distributions) are irrevocably guaranteed by PacifiCorp as
and to the extent set forth under "Description of Guarantee." Taken
together, PacifiCorp's obligations under each series of Junior Subordinated
Debentures, the Indenture, the related Trust Agreement, the related Expense
Agreement, and the related Guarantee provide a full, irrevocable and
unconditional guarantee of payments of distributions and other amounts due
on the related series of Preferred Securities. No single document standing
alone or operating in conjunction with fewer than all of the other
documents constitutes such guarantee. It is only the combined operation of
these documents that has the effect of providing a full, irrevocable and
unconditional guarantee of the Issuer Trust's obligations under the
Preferred Securities. If and to the extent that PacifiCorp does not make
payments on any series of Corresponding Junior Subordinated Debentures,
such Issuer Trust will not pay Distributions or other amounts due on
related Preferred Securities. The Guarantees do not cover payment of
Distributions when the related Issuer Trust does not have sufficient funds
to pay such Distributions. In such event, the remedies of a holder of a
series of Preferred Securities are as described above under "Description of
Junior Subordinated Debentures--Debenture Events of Default" and
"Description of Preferred Securities--Events of Default; Notice." The
obligations of PacifiCorp under each Guarantee are subordinate and junior
in right of payment to all Senior Indebtedness of PacifiCorp.
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Notwithstanding anything to the contrary in the Indenture,
PacifiCorp has the right to set-off any payment it is otherwise required to
make thereunder with and to the extent PacifiCorp has theretofore made, or
is concurrently on the date of such payment making, a payment under the
related Guarantee.
A holder of any related Preferred Security may institute a legal
proceeding directly against PacifiCorp to enforce its rights under the
related Guarantee without first instituting a legal proceeding against the
Guarantee Trustee, the related Issuer Trust or any other person or entity.
Each Issuer Trust's Preferred Securities evidence a beneficial
interest in such Issuer Trust, and each Issuer Trust exists for the sole
purpose of issuing its Preferred Securities and Common Securities and
investing the proceeds thereof in Corresponding Junior Subordinated
Debentures. A principal difference between the rights of a holder of a
Preferred Security and a holder of a Corresponding Junior Subordinated
Debenture is that a holder of a Corresponding Junior Subordinated Debenture
is entitled to receive from PacifiCorp the principal amount of and interest
accrued on Corresponding Junior Subordinated Debentures held, while a
holder of Preferred Securities is entitled to receive Distributions from
such Issuer Trust (or from PacifiCorp under the applicable Guarantee) if
and to the extent such Issuer Trust has funds available for the payment of
such Distributions.
Upon any voluntary or involuntary termination, winding-up or
liquidation of any Issuer Trust involving the liquidation of the
Corresponding Junior Subordinated Debentures, the holders of the related
Preferred Securities will be entitled to receive, out of assets held by
such Issuer Trust and after satisfaction of liabilities to creditors of
such Issuer Trust as provided by applicable law, the Liquidation
Distribution in cash. See "Description of Preferred Securities--
Liquidation Distribution Upon Termination." Upon any voluntary or
involuntary liquidation or bankruptcy of PacifiCorp, the Property Trustee,
as holder of the Corresponding Junior Subordinated Debentures, would be a
subordinated creditor of PacifiCorp, subordinated in right of payment to
all Senior Indebtedness, but entitled to receive payment in full of
principal and interest, before any shareholders of PacifiCorp receive
payments or distributions. Since PacifiCorp is the guarantor under each
Guarantee and has agreed to pay for all costs, expenses and liabilities of
each Issuer Trust (other than the Issuer Trust's obligations to the holders
of its Preferred Securities), the positions of a holders of such Preferred
Securities and a holder of such Corresponding Junior Subordinated
Debentures relative to other creditors and to shareholders of PacifiCorp in
the event of liquidation or bankruptcy of PacifiCorp would be substantially
the same.
A default or event of default under any Senior Indebtedness of
PacifiCorp will not constitute a default or Event of Default under the
Indenture. However, in the event of payment defaults under, or acceleration
of, Senior Indebtedness of PacifiCorp, the subordination provisions of the
Indenture provide that no payments may be made in respect of the
Corresponding Junior Subordinated Debentures until such Senior Indebtedness
has been paid in full or any payment default thereunder has been cured or
waived. Failure to make required payments on any series of Corresponding
Junior Subordinated Debentures would constitute a Debenture Event of
Default under the Indenture with respect to such series.
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PLAN OF DISTRIBUTION
PacifiCorp may sell any series of the Junior Subordinated
Debentures, and each Issuer Trust may sell any series of Preferred
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 Offered
Securities, including the name or names of any underwriters, dealers or
agents, the purchase price of such Offered Securities and the proceeds to
PacifiCorp or the Issuer Trust, as the case may be, 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 Offered
Securities, such Offered 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
Offered 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 Offered
Securities will be subject to certain conditions precedent, and the
underwriters will be obligated to purchase all such Offered Securities if
any are purchased.
If a dealer is used in the sale of any Offered Securities,
PacifiCorp will sell such Offered Securities to the dealer, as principal.
The dealer may then resell such Offered 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 Offered Securities and any
discounts or concessions allowed or reallowed or paid to the dealer will be
set forth in the Prospectus Supplement relating to such offering.
The Offered Securities may be sold directly by PacifiCorp or
through agents designated by PacifiCorp 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 Offered
Securities will be named, and any commissions payable by PacifiCorp 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.
Certain of the underwriters, dealers or agents and their
associates may be customers of, engage in the transactions with or perform
services for PacifiCorp and/or the applicable Issuer Trust and/or any of
their respective affiliates in the ordinary course of business.
PacifiCorp will indicate in a Prospectus Supplement the extent to
which it anticipates that a secondary market for the Offered Securities
will be available.
Underwriters, dealers and agents participating in the distribution
of the Offered Securities may be deemed to be "underwriters" within the
meaning of, and any discounts and commissions
42
<PAGE>
received by them and any profit realized by them on resale of such Offered
Securities may be deemed to be underwriting discounts and commissions
under, the Securities Act. Subject to certain conditions, PacifiCorp and
the applicable Issuer Trustee 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
Unless otherwise indicated in the applicable Prospectus
Supplement, certain legal matters in connection with the Offered
Securities, including the validity of the Junior Subordinated Debentures,
the Indenture and the Guarantee, will be passed upon for PacifiCorp and
each Issuer Trust by Stoel Rives LLP, Portland, Oregon, and for the
underwriters by Winthrop, Stimson, Putnam & Roberts, New York, New York.
Certain matters of Delaware law relating to the validity of the Preferred
Securities, the enforceability of each Trust Agreement and the creation of
each Issuer Trust will be passed upon by Richards, Layton & Finger, P.A.,
as special Delaware counsel to PacifiCorp and the Issuer Trusts. Certain
tax matters in connection with the Preferred Securities will be passed upon
for PacifiCorp and each Issuer Trust by Stoel Rives LLP. John M. Schweitzer
and John Detjens III, who are assistant secretaries of PacifiCorp, are
partners in the firm of Stoel Rives LLP.
EXPERTS
The financial statements incorporated in this Prospectus by
reference from PacifiCorp's Annual Report on Form 10-K have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their reports,
which are incorporated herein by reference (which reports express an
unqualified opinion and include an explanatory paragraph relating to
PacifiCorp's change in its method of accounting for income taxes and other
postretirement benefits), and have been so incorporated herein in reliance
upon the reports of such firm given upon their authority of as experts in
accounting and auditing.
With respect to any unaudited interim financial information that
is incorporated herein by reference, Deloitte & Touche LLP have applied
limited procedures in accordance with professional standards for a review
of such information. However, as stated in their reports included in
PacifiCorp'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.
43
<PAGE>
================================================================================
No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus Supplement or
the Prospectus, and, if given or made, such information or representations
must not be relied upon as having been authorized. This Prospectus
Supplement and the Prospectus do not constitute an offer to sell or the
solicitation of an offer to buy any securities other than the securities
described in this Prospectus Supplement and the Prospectus or any offer to
sell or the solicitation of an offer to buy such securities in any
circumstances in which such offer or solicitation is unlawful. Neither the
delivery of this Prospectus Supplement and the Prospectus nor any sale made
hereunder shall, under any circumstances, create any implication that there
has been no change in the affairs of PacifiCorp since the date hereof or
that the information contained herein or therein is correct as of any time
subsequent to its date.
------------------
TABLE OF CONTENTS
Prospectus Supplement
Page
----
Risk Factors................................................... S-5
PacifiCorp Capital I...........................................S-10
PacifiCorp.....................................................S-10
Use of Proceeds................................................S-11
Selected Financial Information.................................S-12
Accounting Treatment...........................................S-14
Certain Terms of Series A Preferred Securities.................S-15
Certain Terms of Series C Debentures...........................S-18
Certain Federal Income Tax Considerations......................S-22
Underwriting...................................................S-27
Legal Opinions.................................................S-29
Prospectus
Available Information.......................................... 4
Incorporation of Certain Documents by
Reference................................................... 4
PacifiCorp..................................................... 5
The Issuer Trusts.............................................. 6
Use of Proceeds................................................ 7
Consolidated Ratios of Earnings
to Fixed Charges............................................ 7
Description of Junior Subordinated
Debentures................................................. 8
Description of Preferred Securities............................ 19
Description of Guarantee....................................... 35
Description of Corresponding Junior
Subordinated Debentures..................................... 38
Relationship Among the Preferred Securities,
the Corresponding Junior Subordinated
Debentures and the Guarantees............................... 40
Plan of Distribution........................................... 42
Legal Opinions................................................. 43
Experts........................................................ 43
================================================================================
Preferred Securities
PacifiCorp Capital I
% Cumulative Quarterly
Income Preferred
Securities,
Series A (QUIPSSM)
Guaranteed to the extent PacifiCorp
Capital I has funds as set forth herein
by
[LOGO] PACIFICORP
--------------------
Prospectus Supplement
--------------------
Goldman, Sachs & Co.
Smith Barney Inc.
Dean Witter Reynolds Inc.
A.G. Edwards & Sons, Inc.
Merrill Lynch & Co.
Representatives of the Underwriters
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Registration fee................................... $75,863
*Fees of state regulatory authorities............... 1,000
*Counsel fees....................................... 100,000
*Accountants' fees.................................. 30,000
*Stock exchange listing fees........................ 25,650
*Trustee fees....................................... 4,000
*Rating agency fees................................. 50,000
*Blue sky expenses.................................. 5,000
*Printing and delivery of registration statement,
prospectus, certificates, etc.................... 75,000
*Miscellaneous expenses............................. 33,487
--------
Total..........................................$400,000
- -------------------
* Estimated
Item 15. Indemnification of Directors and Officers.
PacifiCorp's Second Restated Articles of Incorporation as amended
("Restated Articles"), and Bylaws, as amended ("Bylaws"), require
PacifiCorp to indemnify directors and officers to the fullest extent not
prohibited by law. The right to and amount of indemnification 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 PacifiCorp to grant a right of
indemnification in respect of any pending, threatened or completed
action, suit or proceeding, other than an action by or in the
right of PacifiCorp, against expenses (including attorneys' fees),
judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred, provided the person concerned
acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of PacifiCorp, and,
with respect to any criminal action or proceeding, had no
reasonable cause to believe the conduct was unlawful.
Indemnification is not permitted in connection with a proceeding
in which a person is adjudged liable on the basis that personal
benefit was improperly received unless indemnification is
permitted by a court upon a finding that the person is fairly and
reasonably entitled to indemnification in view of all of the
relevant circumstances. The termination of a proceeding by
judgment, order, settlement, conviction or plea of nolo contendere
or its equivalent is not, of itself, determinative that the person
did not meet the prescribed standard of conduct.
II-1
<PAGE>
(b) The OBCA permits PacifiCorp to grant a right of
indemnification in respect of any proceeding by or in the right of
PacifiCorp against the reasonable expenses (including attorneys'
fees) incurred, if the person concerned acted in good faith and in
a manner he or she reasonably believed to be in or not opposed to
the best interests of PacifiCorp, except that no indemnification
may be granted if such person is adjudged to be liable to
PacifiCorp unless permitted by a court.
(c) Under the OBCA, PacifiCorp may not indemnify a person
in respect of a proceeding described in (a) or (b) above unless it
is determined that indemnification is permissible because the
person has met the prescribed standard of conduct by any one of
the following: (i) the Board of Directors, by a majority vote of a
quorum consisting of directors not at the time parties to the
proceeding, (ii) if a quorum of directors not parties to the
proceeding cannot be obtained, by a majority vote of a committee
of two or more directors not at the time parties to the
proceeding, (iii) by special legal counsel selected by the Board
of Directors or the committee thereof, as described in (i) and
(ii) above, or (iv) by the shareholders. Authorization of the
indemnification and evaluation as to the reasonableness of
expenses are to be determined as specified in any one of (i)
through (iv) above, except that if the determination of such
indemnification's permissibility is made by special counsel, then
the determination of the reasonableness of such expenses is to be
made by those entitled to select special counsel. Indemnification
can also be ordered by a court if the court determines that
indemnification is fair in view of all of the relevant
circumstances. Notwithstanding the foregoing, every person who has
been wholly successful, on the merits or otherwise, in defense of
a proceeding described in (a) or (b) above is entitled to be
indemnified as a matter of right against reasonable expenses
incurred in connection with the proceeding.
(d) Under the OBCA, PacifiCorp may pay for or reimburse
the reasonable expenses incurred in defending a proceeding in
advance of the final disposition thereof if the director or
officer receiving the advance furnishes (i) a written affirmation
of the director's or officer's good faith belief that he or she
has met the prescribed standard of conduct and (ii) a written
undertaking to repay the advance if it is ultimately determined
that such person did not meet the standard of conduct.
The rights of indemnification described above are not exclusive of
any other rights of indemnification to which officers or directors may be
entitled under any statute, agreement, vote of shareholders, action of
directors or otherwise. Resolutions adopted by PacifiCorp's Board of
Directors require PacifiCorp to indemnify directors and officers of
PacifiCorp 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.
PacifiCorp has directors' and officers' liability insurance
coverage which insures directors and officers of PacifiCorp against certain
liabilities.
PacifiCorp, as Depositor, has agreed to indemnify the Issuer
Trustees for, and to hold the Issuer Trustees harmless against, any loss,
damage, claim, liability, penalty or expense incurred without negligence or
bad faith on the part of any Issuer Trustee, arising out of or in
connection with the acceptance or administration of the Trust Agreement,
including the costs and expenses of any Issuer Trustee of defending itself
against any claim or liability in connection with the exercise and
performance of any of its powers or duties under the Trust Agreement.
II-2
<PAGE>
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) Each of the undersigned registrants 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
(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.
II-3
<PAGE>
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for purposes of determining 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.
(5) That, for purposes of determining any liability under
the Securities Act of 1933, the information omitted from the form
of prospectus filed as part of this Registration Statement in
reliance upon Rule 430A under the Securities Act of 1933 and
contained in a form of prospectus filed by the registration
pursuant to Rule 424(b)(1) or (4) under the Securities Act shall
be deemed to be part of this Registration Statement as of the time
it was declared effective.
(6) That, for purposes of determining any liability under
the Securities Act of 1933, each post-effective amendment that
contains a form of prospectus 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.
(7) To provide to the underwriters at the closing
specified in the underwriting agreements certificates in such
denominations and registered in such names as required by the
underwriter to permit prompt delivery to each purchaser.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrants pursuant to the provisions described
under Item 15, or otherwise, the registrants have 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 registrants of
expenses incurred or paid by a director, officer or controlling person of
the registrants in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrants will,
unless in the opinion of their 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.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
PacifiCorp 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
May 8, 1996.
PACIFICORP
By: RICHARD 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 May
8, 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)
II-5
<PAGE>
*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)
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
PacifiCorp Capital I 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
May 8, 1996.
PACIFICORP CAPITAL I
By WILLIAM E. PERESSINI
--------------------------------
William E. Peressini, as Trustee
II-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
PacifiCorp Capital I 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
May 8, 1996.
PACIFICORP CAPITAL II
By WILLIAM E. PERESSINI
--------------------------------
William E. Peressini, as Trustee
II-8
<PAGE>
EXHIBIT INDEX
Exhibit Sequential
No. Description Page No.
------- ----------- ----------
*1(a) Form of Underwriting Agreement relating to Junior
Subordinated Debentures not issued in connection with
Preferred Securities (Exhibit (1)(b), File No.
33-55309).
1(b) Form of Underwriting Agreement to be used in
connection with the issuance of Preferred Securities.
4(a) Indenture dated as of May 1, 1995 between PacifiCorp
and The Bank of New York, as Trustee, as supplemented
by two Supplemental Indentures.
*4(b) Form of Supplemental Indenture to Indenture to be
used in connection with the issuance of Junior
Subordinated Debentures (other than Corresponding
Junior Subordinated Debentures) (Exhibit 4(d), File
No. 33-58569).
4(c) Form of Third Supplemental Indenture to Indenture to
be used in connection with the issuance of
Corresponding Junior Subordinated Debentures and
Preferred Securities.
*4(d) Form of Junior Subordinated Debenture (included in
Exhibits 4(b) and 4(c) above).
4(e) Certificate of Trust of PacifiCorp Capital I.
4(f) Trust Agreement of PacifiCorp Capital I.
4(g) Certificate of Trust of PacifiCorp Capital II.
4(h) Trust Agreement of PacifiCorp Capital II.
4(i) Form of Amended and Restated Trust Agreement
(Agreements for PacifiCorp Capital I and PacifiCorp
Capital II are substantially identical except for
names and dates).
4(j) Form of Preferred Security Certificate for PacifiCorp
Capital I and PacifiCorp Capital II. (included in
Exhibit 4(i) above)
4(k) Form of Guarantee Agreement (Agreements for
PacifiCorp Capital I and PacifiCorp Capital II are
substantially identical except for names and dates).
5(a) Opinion of Stoel Rives LLP with respect to the Junior
Subordinated Debentures and Guarantees.
5(b) Opinion of Richards, Layton & Finger, special
Delaware counsel, with respect to the Preferred
Securities of PacifiCorp Capital I.
II-9
<PAGE>
EXHIBIT INDEX
Exhibit Sequential
No. Description Page No.
------- ----------- ----------
5(c) Opinion of Richards, Layton & Finger, special
Delaware counsel, with respect to the Preferred
Securities of PacifiCorp Capital II.
8 Opinion of Stoel Rives LLP with respect to United
States Federal Income Tax Matters.
*12 Statements re Computation of Ratios of Earnings to
Fixed Charges (Exhibit 12, Form 10-K for the Year
ended December 31, 1995 and Exhibit 12(a), Form 10-Q
for the Quarter ended March 31, 1996).
23(a) Consent of Deloitte & Touche LLP.
23(b) Consent of Stoel Rives LLP (included in Exhibit 5(a)
and (8) above).
23(c) Consents of Richards, Layton & Finger (included in
Exhibits 5(b) and 5(c) above).
24 Powers of Attorney.
25(a) Statement of Eligibility and Qualification 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, as supplemented, between PacifiCorp
and The Bank of New York.
25(b) Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of The Bank of New York,
as Guarantee Trustee for the Guarantee for PacifiCorp
Capital I.
25(c) Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of The Bank of New York,
as Property Trustee for the Amended and Restated
Trust Agreement of PacifiCorp Capital I.
25(d) Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of The Bank of New York,
as Guarantee Trustee for the Guarantee for PacifiCorp
Capital II.
25(e) Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of The Bank of New York,
as Property Trustee for the Amended and Restated
Trust Agreement of PacifiCorp Capital II.
- ------------------
* Incorporated by reference.
II-10
WSP&R
DRAFT
5/7/96
Exhibit 1(b)
Form of Underwriting Agreement
relating to Preferred Securities
[__________] Preferred Securities
PACIFICORP CAPITAL I
[__]% Cumulative Quarterly Income Preferred
Securities, Series A ("QUIPS"SM)*
(Liquidation preference $25 per preferred security)
Guaranteed to the extent PacifiCorp Capital I has funds by
PACIFICORP
UNDERWRITING AGREEMENT
[_____]
GOLDMAN, SACHS & CO.
SMITH BARNEY INC.
DEAN WITTER REYNOLDS INC.
A.G. EDWARDS & SONS, INC.
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
As representatives of the several
Underwriters named in Schedule I hereto
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
The undersigned, PacifiCorp Capital I, a statutory business trust
created under the Business Trust Act (the "Trust"), and PacifiCorp, an
Oregon corporation (the "Company" and, together with the Trust, the
"Obligors"), hereby confirm their agreement with the several
- --------------
* QUIPS is a service mark of Goldman, Sachs & Co.
<PAGE>
Underwriters, for whom you are acting as representatives (in such capacity,
you shall hereinafter be referred to as the "Representatives"), as follows:
1. Definitions of Certain Terms. Except as may otherwise be
defined herein, the following terms used herein shall have the following
meanings:
(a) "Act" shall mean the Securities Act of 1933, as amended.
(b) "Administrative Trustees" shall mean William E. Peressini and
John R. Stageberg, employees of the Company, in their capacities as
administrative trustees under the Trust Agreement.
(c) "Articles" shall mean the Second Restated Articles of
Incorporation of the Company, as amended.
(d) "Business Day" shall mean any day on which the NYSE and banks
in the City of New York are open.
(e) "Business Trust Act" shall mean the Business Trust Act of the
State of Delaware (Title 12, Chapter 38 of the Delaware Code, 12 Del.
C Section 3801 et seq.).
(f) "Commission" shall mean the Securities and Exchange
Commission.
(g) "Company Securities" shall mean the Series C Debentures and
the Series A Guarantee.
(h) "Counsel for the Obligors" shall mean Stoel Rives LLP.
(i) "Counsel for the Underwriters" shall mean Winthrop, Stimson,
Putnam & Roberts.
(j) "Debenture Trustee" shall mean The Bank of New York, in its
capacity as trustee under the Indenture.
(k) "Debentures" shall mean junior subordinated debentures of the
Company issued under the Indenture.
(l) "Delaware Trustee" shall mean The Bank of New York
(Delaware), in its capacity as Delaware trustee under the Trust
Agreement.
(m) "Effective Date" shall mean, with respect to each of the
Registration Statements at any time, the later of (i) the date that
such Registration Statement or any post-effective amendment thereto
was or is declared effective by the Commission under the Act and (ii)
the date that the Company's Annual Report on Form 10-K for its most
recently completed fiscal year is filed with the Commission under the
Exchange Act, in each case at such time.
-2-
<PAGE>
(n) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
(o) "Expense Agreement" shall mean an agreement as to expenses
and liabilities between the Company and the Trust, pursuant to the
Trust Agreement, dated as of [_____], pursuant to which the Company
will irrevocably and unconditionally guarantee to each person or
entity to whom the Trust becomes indebted or liable the full payment
of any costs, expenses or liabilities of the Trust, subject to certain
exceptions therein.
(p) "Guarantee" shall mean the Company's guarantee of the payment
of distributions on, and amounts due upon the redemption of or upon
liquidation with respect to, any of the Preferred Securities.
(q) "Guarantee Trustee" shall mean The Bank of New York, in its
capacity as trustee under the Guarantee.
(r) "Incorporated Documents" shall mean the documents filed by
the Company with the Commission under the Exchange Act that are, or
are deemed to be, incorporated by reference in the Prospectus pursuant
to Item 12 of Form S-3 under the Act.
(s) "Indenture" shall mean the Indenture dated as of May 1, 1995
between the Company and the Debenture Trustee, as heretofore
supplemented and amended, including by the Third Supplemental
Indenture dated as of [_____].
(t) "Issuer Trustees" shall mean, collectively, the Property
Trustee, the Delaware Trustee and the Administrative Trustees.
(u) "NYSE" shall mean the New York Stock Exchange.
(v) "Preferred Securities" shall mean up to 10,000,000 undivided
beneficial interests in the assets of any statutory business trust
created under the Business Trust Act (including the Trust) and
otherwise having the terms set forth in the Prospectus.
(w) "Property Trustee" shall mean The Bank of New York, in its
capacity as property trustee under the Trust Agreement.
(x) "Prospectus" shall mean the combined prospectus relating to
the Securities included in the Second Registration Statement pursuant
to Rule 429 of the Regulations under the Act, as supplemented by a
prospectus supplement specifying the terms of the Securities and the
plan of distribution thereof (the "Prospectus Supplement"), as first
filed pursuant to Rule 424(b) of the Regulations under the Act,
including the Incorporated Documents.
(y) "Registration Statements" shall mean (i) the registration
statement on Form S-3 (No. 33-55309) (the "First Registration
Statement") and (ii) the registration statement on Form S-3 (No.
333-[_____]) (the "Second Registration Statement"), in each case filed
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with the Commission for the registration under the Act of $250,000,000
principal amount of the Debentures, the Preferred Securities and the
Guarantee, as amended and supplemented to the date of this Agreement,
and shall be deemed to include the Incorporated Documents.
(z) "Regulations" shall mean the applicable published rules and
regulations of the Commission under the Act, the Exchange Act or the
Trust Indenture Act, as the case may be.
(aa) "Securities" shall mean the Series A Preferred Securities
and the Company Securities.
(bb) "Series A Common Securities" shall mean undivided beneficial
interests in the assets of the Trust issued under the Trust Agreement
and having the terms set forth in the Prospectus.
(cc) "Series A Preferred Securities" shall mean [_____] Preferred
Securities designated [__]% Cumulative Quarterly Income Preferred
Securities, Series A issued under the Trust Agreement and having the
terms set forth in the Prospectus.
(dd) "Series C Debentures" shall mean $[_____] aggregate
principal amount of Debentures designated [__]% Junior Subordinated
Deferrable Interest Debentures, Series C having the terms set forth in
the Prospectus.
(ee) "Series A Guarantee" shall mean the Guarantee in respect of
the Series A Preferred Securities issued pursuant to the Guarantee
Agreement dated as of [_____] between the Company and the Guarantee
Trustee and having the terms set forth in the Prospectus.
(ff) "Statements of Eligibility" shall mean the part of the
Registration Statements that constitutes the statements of eligibility
on Form T-1 under the Trust Indenture Act of the Property Trustee, the
Debenture Trustee, the Delaware Trustee and the Guarantee Trustee.
(gg) "Special Event" shall have the meaning ascribed to such term
in the Prospectus.
(hh) "Trust Agreement" shall mean the Trust Agreement of the
Trust dated as of [_____] among the Company, as depositor, and the
Issuer Trustees, as amended and restated on or prior to the Closing
Date (as defined in Section 4(a) hereof) by the Amended and Restated
Trust Agreement of the Trust among the Company, as depositor, and the
Issuer Trustees, pursuant to which the Trust Securities will be
issued.
(ii) "Trust Certificate" shall mean the Certificate of Trust of
the Trust.
(jj) "Trust Indenture Act" shall mean the Trust Indenture Act of
1939, as amended.
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(kk) "Trust Securities" shall mean the Series A Preferred
Securities and the Series A Common Securities.
(ll) "Underwriters" shall mean the several firms or corporations
named in Schedule I hereto and any underwriter substituted as provided
in Section 4(c) hereof and "Underwriter" shall mean one of the
Underwriters.
(mm) "amend," "amendment," "amended," "supplement" or
"supplemented" with respect to the Registration Statements or the
Prospectus shall mean amendments or supplements to the Registration
Statements or the Prospectus, as the case may be, and Incorporated
Documents filed after the date of this Agreement and prior to the
completion of the distribution of the Securities; provided, however,
that any supplement to the Prospectus filed with the Commission
pursuant to Rule 424(b) of the Regulations under the Act with respect
to an offering of securities of either of the Obligors other than the
Securities shall not be deemed to be a supplement to, or a part of,
the Prospectus.
2. Purchase and Sale. Upon the basis of the representations and
warranties herein contained, and subject to the terms and conditions set
forth in this Agreement, the Trust agrees to sell to each Underwriter named
in Schedule I hereto, and such Underwriter agrees, severally and not
jointly, to purchase from the Trust, the number of Series A Preferred
Securities set forth opposite such Underwriter's name in Schedule I hereto
at a purchase price of $25.00 per Series A Preferred Security.
Because the proceeds of the sale of the Series A Preferred
Securities, together with the proceeds from the sale by the Trust to the
Company of the Series A Common Securities, will be used to purchase the
Series C Debentures, the Company hereby agrees to pay on the Closing Date
to Goldman, Sachs & Co., for the accounts of the several Underwriters, as
compensation for their arranging the investment therein of such proceeds,
an amount equal to $[__] per Series A Preferred Security; provided,
however, that such compensation will be $[__] per Series A Preferred
Security sold to certain institutions.
The Representatives represent that they have been authorized by
each Underwriter to enter into this Agreement on behalf of such
Underwriter, to confirm the statements described in Section 8(e) hereof and
to act for it in the manner herein provided. All obligations of the
Underwriters hereunder are several and not joint. Any action under or in
respect of this Agreement may be taken by the firms listed at the beginning
of this Agreement jointly as the Representatives or by one of such firms
acting on behalf of the Representatives and such action will be binding
upon all the Underwriters.
The Obligors have been advised by the Representatives that the
Underwriters propose to (i) make a public offering of the Series A
Preferred Securities as soon as the Underwriters deem advisable after this
Agreement has been executed and delivered and (ii) initially offer the
Series A Preferred Securities to the public at the public offering price
set forth in the Prospectus.
3. Representations and Warranties of Obligors. The Obligors
jointly and severally represent and warrant to, and agree with, the several
Underwriters as follows:
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(a) Filing of Registration Statements and any Preliminary
Prospectus with Commission. The Obligors meet the requirements for use
of Form S-3 under the Act, the Company has filed with the Commission
the First Registration Statement and the Obligors have filed with the
Commission the Second Registration Statement and each preliminary
prospectus relating to the Securities, if any, required to be filed
pursuant to Rule 424(b) of the Regulations under the Act; and each of
the Registration Statements has been declared effective by the
Commission under the Act and meets the requirements set forth in
paragraph (a)(1)(ix) or (a)(1)(x) of Rule 415 of the Regulations under
the Act and complies in all other material respects with such Rule
415.
(b) Registration Statements; Prospectus; Incorporated Documents.
(i) The Registration Statements, at the respective Effective Dates
thereof, each preliminary prospectus relating to the Securities, if
any, at the time it was filed with the Commission, and the Prospectus,
at the time it is filed with the Commission, complied and will comply,
as the case may be, except in each case for Incorporated Documents, in
all material respects with the applicable requirements of the Act and
the Trust Indenture Act and the Regulations thereunder; (ii) the
Registration Statements, at the respective Effective Dates thereof,
did not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; (iii) the Prospectus, at
the time it is filed with the Commission, will not and each
preliminary prospectus relating to the Securities, if any, at the time
it was filed with the Commission, did not include an untrue statement
of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and (iv) each Incorporated
Document, at the time originally filed with the Commission pursuant to
the Exchange Act, complied and will comply, as the case may be, in all
material respects with the applicable requirements of the Exchange Act
and the Regulations thereunder; provided, however, that the Obligors
make no representation or warranty as to (A) any of the Statements of
Eligibility or (B) the information contained in or omitted from the
Registration Statements or the Prospectus in reliance upon and in
conformity with information furnished in writing to the Obligors by
the Representatives specifically for use in connection with the
preparation of the Registration Statements or the Prospectus.
(c) Financial Statements. The consolidated financial statements
included or incorporated by reference in the Registration Statements
and the Prospectus present fairly the financial condition and
operations of the Company and its consolidated subsidiaries at the
respective dates or for the respective periods to which they apply;
such financial statements have been prepared in each case in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved except as otherwise indicated
in the Registration Statements and the Prospectus; and Deloitte &
Touche LLP, who examined the audited financial statements, are
independent public accountants as required by the Act and the
Regulations thereunder.
(d) Material Changes or Transactions. Except as reflected in, or
contemplated by, the Registration Statements and the Prospectus, since
the respective most recent dates as of which information is given in
the Registration Statements and the Prospectus, there has not been any
material adverse change in the business, affairs, business prospects,
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property or financial condition of either Obligor, whether or not
arising in the ordinary course of business, and since such dates there
has not been any material transaction entered into by either Obligor
other than transactions contemplated by the Registration Statements
and the Prospectus, and transactions in the ordinary course of
business; and neither Obligor has any material contingent obligation
that is not disclosed in the Registration Statements and the
Prospectus.
(e) No Defaults. The Company is not in violation of the Articles
or its Bylaws, as amended, or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, agreement or other instrument to
which it is a party or by which it may be bound, the effect of which
is material to the Company and its subsidiaries taken as a whole, and
neither the execution or delivery of this Agreement, the consummation
of the transactions hereby contemplated, the fulfillment of the terms
hereof nor compliance with the terms and provisions hereof will
conflict with, or result in a breach of, or constitute a default
under, (i) the Articles or its Bylaws, as amended, or any material
contract, agreement or other instrument that the Company has assumed
or to which it is now a party or by which it may be bound or (ii) any
order, rule or regulation applicable to the Company of any court or
any federal or state regulatory body or administrative agency or other
governmental body having jurisdiction over the Company or its
properties, the effect of which, singly or in the aggregate, is
material to the Company; and the Trust is not in violation of the
Trust Certificate or the Trust Agreement or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained therein, and neither the execution or delivery of
this Agreement, the consummation of the transactions hereby
contemplated, the fulfillment of the terms hereof nor compliance with
the terms and provisions hereof will conflict with, or result in a
breach of, or constitute a default under, (A) the Trust Certificate or
the Trust Agreement or (B) any order, rule or regulation applicable to
the Trust of any court or any federal or state regulatory body or
administrative agency or other governmental body having jurisdiction
over the Trust or its properties.
(f) Due Incorporation and Qualification of Company. The Company
has been duly incorporated and is validly existing as a corporation
under the laws of the State of Oregon with corporate power and
corporate authority (i) to own its properties and conduct its business
as described in the Prospectus, (ii) to execute and deliver, and
perform its obligations under, this Agreement, the Indenture, the
Trust Agreement, the Expense Agreement and the Company Securities and
(iii) to purchase, own and hold the Series A Common Securities issued
by the Trust; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which it owns or leases substantial properties or in
which the conduct of its business requires such qualification, except
where the failure to so qualify would not have a material adverse
effect on the financial condition of the Company and its subsidiaries
taken as a whole.
(g) Due Creation and Registration of Trust. The Trust has been
duly created and is validly existing as a business trust under the
Business Trust Act with the power and authority (i) to own its
properties and conduct its business as described in the
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<PAGE>
Prospectus, (ii) to execute and deliver this Agreement and the
certificates for the Trust Securities and (iii) to perform its
obligations under this Agreement, the Trust Agreement and the Trust
Securities; the Trust is a statutory business trust as described in
the Prospectus and has conducted and will conduct no business other
than the transactions contemplated by this Agreement and described in
the Prospectus; and the Trust is not a party to or otherwise bound by
any contract, agreement or other instrument other than this Agreement,
the Trust Agreement and the Trust Certificate, as described in the
Prospectus, and is not a party to any action, suit or proceeding of
any nature.
(h) Agreement. This Agreement has been duly authorized, executed
and delivered by the Obligors and is a valid and legally binding
agreement of each of the Obligors enforceable against the Obligors in
accordance with its terms, except as limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization and other similar
laws relating to or affecting creditors' rights generally and general
equitable principles (whether considered in a proceeding in equity or
at law) and subject to any principles of public policy limiting the
right to enforce the indemnification and contribution provisions
contained herein.
(i) Indenture. The Indenture has been duly authorized by the
Company and qualified under the Trust Indenture Act and, on or prior
to the Closing Date, will be duly executed and delivered by the
Company and constitute a valid and legally binding agreement of the
Company enforceable against the Company in accordance with its terms,
except as limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization and other similar laws relating to or affecting
creditors' rights generally and general equitable principles (whether
considered in a proceeding in equity or at law); and the Indenture
conforms in all material respects to the statements relating thereto
in the Prospectus.
(j) Trust Agreement. The Trust Agreement has been duly authorized
by the Company and qualified under the Trust Indenture Act and, on or
prior to the Closing Date, will be duly executed and delivered by the
Company and the Administrative Trustees and constitute a valid and
legally binding obligation of each of the Company and the
Administrative Trustees enforceable against the Company and the
Administrative Trustees in accordance with its terms, except as
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization and other similar laws relating to or affecting
creditors' rights generally and general equitable principles (whether
considered in a proceeding in equity or at law); and the Trust
Agreement conforms in all material respects to the statements relating
thereto in the Prospectus.
(k) Expense Agreement. The Expense Agreement has been duly
authorized by the Company and, on or prior to the Closing Date, will
be duly executed and delivered by the Company and constitute a valid
and legally binding agreement of the Company enforceable against the
Company in accordance with its terms, except as limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization and other similar
laws relating to or affecting creditors' rights generally and general
equitable principles (whether considered in a proceeding in equity or
at law); and the Expense
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Agreement conforms in all material respects to the statements relating
thereto in the Prospectus.
(l) Series C Debentures. The Series C Debentures have been duly
authorized by the Company and, when authenticated and delivered in
accordance with the Indenture and paid for by the Trust, will
constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their respective
terms, except as limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization and other similar laws relating to or
affecting creditors' rights generally and general equitable principles
(whether considered in a proceeding in equity or at law), and be
entitled to the benefits of the Indenture; and the Series C Debentures
conform in all material respects to the statements relating thereto
contained in the Prospectus.
(m) Series A Preferred Securities. The Series A Preferred
Securities have been duly authorized by the Trust Agreement and, when
issued and delivered against payment therefor in accordance with this
Agreement, will constitute validly issued, fully paid and
non-assessable undivided beneficial interests in the assets of the
Trust and be entitled to the benefits of the Trust Agreement; the
issuance of the Series A Preferred Securities is not subject to
preemptive or other similar rights; holders of Series A Preferred
Securities will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware;
and the Series A Preferred Securities conform in all material respects
to the statements relating thereto in the Prospectus.
(n) Series A Guarantee. The Series A Guarantee has been duly
authorized by the Company and qualified under the Trust Indenture Act
and, on or prior to the Closing Date, will be duly executed and
delivered by the Company and constitute a valid and legally binding
obligation of the Company enforceable against the Company in
accordance with its terms, except as limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization and other similar
laws relating to or affecting creditors' rights generally and general
equitable principles (whether considered in a proceeding in equity or
at law); and the Series A Guarantee conforms in all material respects
to the statements relating thereto contained in the Prospectus.
(o) Series A Common Securities. The Series A Common Securities
have been duly authorized by the Trust Agreement and, when issued and
delivered by the Trust to the Company against payment therefor as
described in the Prospectus, will constitute validly issued undivided
beneficial interests in the assets of the Trust and be entitled to the
benefits of the Trust Agreement; the issuance of the Series A Common
Securities is not subject to preemptive or other similar rights; at
the Closing Date, all of the Series A Common Securities will be
directly owned by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; and the Series A
Common Securities conform in all material respects to the statements
relating thereto in the Prospectus.
(p) Capital Stock. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus (except for
changes referred to therein or
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contemplated thereby and additional shares offered under the Company's
Dividend Reinvestment and Stock Purchase Plan, K Plus Employee Savings
and Stock Ownership Plan or Utah Power & Light Company Employee
Savings and Stock Purchase Plan).
(q) Investment Company Act. Neither of the Obligors is an
"investment company" or an entity "controlled" by an "investment
company," as such terms are defined in the Investment Company Act of
1940, as amended.
Any certificate signed by any officer of the Company or any
authorized representative of the Trust and delivered to the Representatives
or to Counsel for the Underwriters shall be deemed a representation and
warranty by the Company or the Trust, respectively, to each Underwriter as
to the statements made therein.
4. Closing; Delivery of Series A Preferred Securities; Defaulting
Underwriters.
(a) Closing. Delivery of the Series A Preferred Securities to the
Underwriters, against payment of the purchase price therefor in immediately
available funds by wire transfer to an account designated by the Trust,
shall be made prior to 1:00 P.M., New York City time, on [_____] through
the facilities of The Depository Trust Company ("DTC"), or at such other
time, date and location as may be agreed upon in writing by the Obligors
and the Representatives. Delivery of the documents required by Section 6
hereof shall be made at such time and date at the offices of [_____], or at
such other location as may be agreed upon in writing by the Obligors and
the Representatives. The hour and date of such delivery and payment are
herein called the "Closing Date."
(b) Delivery of Series A Preferred Securities. The certificates
for the Series A Preferred Securities shall be registered in the name of
"Cede & Co.," as nominee of DTC, and delivered to DTC in such denominations
as the Representatives may reasonably request in writing not later than
10:00 A.M., New York City time, on the Business Day prior to the Closing
Date or, to the extent not so requested, in such authorized denominations
as the Trust shall determine. For the purpose of expediting the checking of
the certificates for the Series A Preferred Securities by the
Representatives on behalf of the Underwriters, the Trust agrees to make
such certificates available to the Representatives for such purpose at the
offices of DTC in New York, New York, not later than 2:00 P.M., New York
City time, on the Business Day prior to the Closing Date or at such other
time and place as may be agreed upon by the Trust and the Representatives.
(c) Defaulting Underwriters. If on the Closing Date any
Underwriter shall fail to purchase and pay for the Series A Preferred
Securities that such Underwriter has agreed to purchase and pay for
hereunder on such date (otherwise than by reason of any failure on the part
of either Obligor to comply with any of the provisions contained herein),
the non-defaulting Underwriters shall be obligated, severally and not
jointly, to take up and pay for (in addition to the respective number of
Series A Preferred Securities set forth opposite their respective names in
Schedule I hereto) the number of Series A Preferred Securities that such
defaulting Underwriter or Underwriters failed to take up and pay for, up to
a number of Series A Preferred Securities equal to, in the case of each
such non-defaulting Underwriter, ten percent (10%) of
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the number of Series A Preferred Securities set forth opposite the name of
such non-defaulting Underwriter in Schedule I hereto and the non-defaulting
Underwriters shall have the right, within 24 hours of such default, either
to take up and pay for (in such proportion as may be agreed upon among
them), or to substitute another Underwriter or Underwriters, satisfactory
to the Obligors, to take up and pay for the remaining number of Series A
Preferred Securities that the defaulting Underwriter or Underwriters agreed
but failed to purchase. If any unpurchased Series A Preferred Securities
still remain, then the Obligors shall be entitled to a further period of 24
hours within which to procure another party or other parties, members of
the National Association of Securities Dealers, Inc. (or, if not members of
such Association, who are not eligible for membership in such Association
and who agree (i) to make no sales within the United States, its
territories or its possessions or to persons who are citizens thereof or
residents therein and (ii) in making sales to comply with such
Association's Rules of Fair Practice) and satisfactory to the
Representatives, to purchase such Series A Preferred Securities on the
terms herein set forth. In the event that, within the respective prescribed
periods, the non-defaulting Underwriters notify the Obligors that they have
arranged for the purchase of such Series A Preferred Securities, or the
Obligors notify the non-defaulting Underwriters that they have arranged for
the purchase of such Series A Preferred Securities, then the non-defaulting
Underwriters or the Obligors shall have the right to postpone the Closing
Date for a period of not more than three full Business Days beyond the
expiration of the respective prescribed periods in order to effect whatever
changes may thus be made necessary in the Registration Statements or the
Prospectus or in any other documents or arrangements. In the event that
none of the non-defaulting Underwriters or the Obligors has arranged for
the purchase of such Series A Preferred Securities by another party or
parties as above provided, then this Agreement shall terminate without any
liability on the part of the Obligors or any Underwriter (other than an
Underwriter that shall have failed or refused, otherwise than for some
reason sufficient to justify, in accordance with the terms hereof, the
cancellation or termination of its obligations hereunder, to purchase and
pay for the Series A Preferred Securities that such Underwriter has agreed
to purchase as provided in Section 2 hereof), except as otherwise provided
in Section 5(i) hereof.
5. Covenants of Obligors. Each of the Obligors jointly and
severally covenants and agrees with the Underwriters that:
(a) Filing of Prospectus. The Obligors will promptly transmit
copies of the Prospectus, and any amendments or supplements thereto,
to the Commission for filing pursuant to Rule 424(b) of the
Regulations under the Act.
(b) Copies of Registration Statements and Prospectus; Stop
Orders. The Obligors will deliver to each of the Representatives and
Counsel for the Underwriters (i) one signed copy of the Second
Registration Statement as originally filed, including copies of
exhibits thereto (other than any exhibits incorporated by reference
therein), (ii) signed copies of any amendments and supplements to the
Second Registration Statement, including copies of the Incorporated
Documents (other than exhibits thereto), and (iii) a signed copy of
each consent and certificate included or incorporated by reference in,
or filed as an exhibit to, the Second Registration Statement as so
amended or supplemented; the Obligors will deliver to the Underwriters
through the Representatives as soon as practicable after the date of
this Agreement as many copies of the Prospectus as the Representatives
may reasonably request for the purposes contemplated by the Act; the
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Obligors will promptly advise the Representatives of the issuance of
any stop order under the Act with respect to either of the
Registration Statements (as they may be amended or supplemented) or
the institution of any proceedings therefor, or the suspension of the
qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, of which
either Obligor shall have received notice prior to the completion of
the distribution of the Securities; and the Obligors will use their
best efforts to prevent the issuance of any such stop order and to
secure the prompt removal thereof, if issued.
(c) Filing of Amendments and Supplements. During the period when
a prospectus relating to any of the Securities is required to be
delivered under the Act by any Underwriter or dealer, neither Obligor
will file any amendment or supplement to either of the Registration
Statements, the Prospectus (including a prospectus relating to the
Series A Preferred Securities filed pursuant to Rule 424(b) of the
Regulations under the Act that differs from the Prospectus as first
filed pursuant to such Rule 424(b)) or any Incorporated Document to
which Goldman, Sachs & Co. shall reasonably object as to substance or
Counsel for the Underwriters shall reasonably object as to form.
(d) Compliance with Act. During the period when a prospectus
relating to any of the Securities is required to be delivered under
the Act by any Underwriter or dealer, the Obligors will comply so far
as they are able, and at their own expense, with all requirements
imposed upon them by the Act, as now and hereafter amended, and by the
Regulations thereunder, as from time to time in force, so far as
necessary to permit the continuance of sales of or dealing in the
Securities during such period in accordance with the provisions hereof
and the Prospectus.
(e) Certain Events and Amendments or Supplements. If, during the
period when a prospectus relating to any of the Securities is required
to be delivered under the Act by any Underwriter or dealer, (i) any
event relating to or affecting either Obligor or of which either
Obligor shall be advised in writing by the Representatives shall occur
as a result of which, in the opinion of either Obligor, the Prospectus
as then amended or supplemented would include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading or (ii) it shall be necessary to
amend or supplement either of the Registration Statements or the
Prospectus to comply with the Act, the Exchange Act or the Trust
Indenture Act or the Regulations thereunder, the Obligors will
forthwith at their expense prepare and furnish to the Representatives
a reasonable number of copies of such amendment or supplement that
will correct such statement or omission or effect such compliance;
provided, however, that should such event relate solely to the
activities of any of the Underwriters, then the Underwriters will
assume the expense of preparing and furnishing copies of any such
amendment or supplement. Notwithstanding the foregoing, in case any
Underwriter is required to deliver a prospectus relating to any of the
Securities after the expiration of nine months after the date of this
Agreement, the Obligors upon the request of the Representatives will
furnish to the Representatives, at the expense of such Underwriter, a
reasonable quantity of a supplemented or amended Prospectus or
supplements or amendments to the Prospectus complying with Section 10
of the Act.
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(f) Blue Sky Qualifications. During the time a prospectus
relating to any of the Securities is required to be delivered under
the Act by any Underwriter or dealer, the Obligors will furnish such
proper information as may be lawfully required and otherwise cooperate
in qualifying the Securities for offer and sale under the blue sky
laws of such jurisdictions as the Representatives may reasonably
designate and will file and make in each year such statements or
reports as are or may be reasonably required by laws of such
jurisdictions; provided, however, that neither Obligor shall be
required to qualify as a foreign corporation or trust or shall be
required to qualify as a dealer in securities or to file any consents
to service of process under the laws of any jurisdiction.
(g) Earning Statement. In accordance with Rule 158 of the
Regulations under the Act, the Company will make generally available
to its security holders and to holders of the Securities, as soon as
practicable, an earning statement (which need not be audited) in
reasonable detail covering the 12 months beginning not later than the
first day of the month next succeeding the month in which occurred the
effective date (within the meaning of Rule 158 of the Regulations
under the Act) of each Registration Statement.
(h) Exchange Act Documents; Ratings Notification. The Obligors,
during the time a prospectus relating to any of the Securities is
required to be delivered under the Act by any Underwriter or dealer,
will file promptly all documents required to be filed with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act; and the Obligors will promptly notify the
Representatives of any written notice given to either Obligor by any
"nationally recognized statistical rating organization" (as defined
for purposes of Rule 15c3-1 under the Exchange Act) of any intended
decrease in any rating of any securities of the Company or of any
intended change in any such rating that does not indicate the
direction of the possible change, in each case by any such rating
organization.
(i) Payment of Expenses. Whether or not the transactions
contemplated hereby are consummated or this Agreement is terminated,
the Obligors will pay, except as otherwise expressly provided herein,
all expenses incident to the performance of their respective
obligations under this Agreement, including (i) the preparation and
filing of the Registration Statements and the Prospectus (and any
amendments or supplements thereto), any preliminary prospectus
relating to any of the Securities and any Incorporated Documents and
exhibits thereto, and this Agreement, (ii) the issuance and delivery
of the Series A Preferred Securities to the Underwriters, (iii) the
fees and disbursements of each Obligor's counsel and accountants, (iv)
the fees and expenses of the Issuer Trustees, the Debenture Trustee
and the Guarantee Trustee and their respective counsel, (v) the fees
and expenses in connection with the rating of the Series A Preferred
Securities by securities rating organizations, (vi) the expenses in
connection with the qualification of the Securities under securities
laws in accordance with the provisions of Section 5(f) hereof,
including filing fees and the reasonable fees and disbursements of
Counsel for the Underwriters in connection therewith and in connection
with the preparation of any blue sky survey, (vii) the printing and
delivery to the Underwriters of copies of the Registration Statements
and the Prospectus (and any amendments or supplements thereto) and the
Incorporated Documents, (viii) the printing and delivery to the
Underwriters of copies of any blue sky survey and (ix) the fees and
expenses in
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connection with the listing of the Series A Preferred Securities and
the Series C Debentures and the registration thereof under the
Exchange Act in accordance with Section 5(k) hereof. If this Agreement
is terminated in accordance with the provisions of Section 6, 7 or 9
hereof, or if this Agreement is terminated pursuant to Section 4
hereof and could have been terminated in accordance with the
provisions of Section 6, 7 or 9 hereof, the Obligors will reimburse
the Representatives for their reasonable out-of-pocket expenses in an
amount not exceeding $15,000 in the aggregate, and counsel fees and
disbursements. Neither Obligor shall be required to pay any amount for
any expenses of the Representatives or of any other of the
Underwriters except as provided in this Section 5(i). Neither Obligor
shall in any event be liable to any of the Underwriters for damages on
account of the loss of anticipated profits.
(j) No Issuance Period. During the period beginning from the date
of this Agreement and continuing to and including the earlier of (i)
the termination of trading restrictions on the Series A Preferred
Securities, as determined by the Underwriters, and (ii) 30 days after
the Closing Date, neither Obligor will, without the prior written
consent of the Representatives, offer for sale, sell or enter into any
agreement to sell, or otherwise dispose of, any Preferred Securities,
any other beneficial interests in the assets of the Trust or any
preferred securities or any other securities of either Obligor that
are substantially similar to the Series A Preferred Securities,
including any guarantee of such securities, or any securities
convertible into or exchangeable for or that represent the right to
receive preferred securities or any such substantially similar
securities of either Obligor, except for the Series A Preferred
Securities and the Series A Guarantee.
(k) Listing and Registration. The Obligors will take, or cause to
be taken, all actions necessary or advisable to effect the listing and
admission for trading of the Series A Preferred Securities on the NYSE
and the registration thereof under the Exchange Act; and the Company
will, upon the distribution of Series C Debentures to holders of
Series A Preferred Securities, use its best efforts to effect the
listing and admission for trading of the Series C Debentures on the
NYSE, or such other national securities exchange or other organization
upon which the Series A Preferred Securities are then listed, and the
registration thereof under the Exchange Act.
6. Conditions to Underwriters' Obligations. The several
obligations of the Underwriters hereunder to purchase the Series A
Preferred Securities shall be subject to the continuing accuracy of, and
compliance with, the representations and warranties of the Obligors
contained herein on the Closing Date (with the same force and effect as
though expressly made on and as of the Closing Date, except that references
therein to the Registration Statements and the Prospectus shall include any
amendments or supplements thereto at the Closing Date), to the performance
by each Obligor of its obligations to be performed hereunder on or prior to
the Closing Date and to the following further conditions:
(a) Filing of Prospectus with Commission; No Stop Order;
Regulatory Approvals. The Prospectus, and any amendments or
supplements thereto, shall have been filed in the manner and within
the time period required by Rule 424(b) of the Regulations under the
Act; no stop order suspending the effectiveness of either of the
Registration Statements under the Act shall have been issued and no
proceedings for that
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<PAGE>
purpose shall have been instituted or threatened; no order suspending
trading or striking or withdrawing the Series A Preferred Securities
from listing on the NYSE or registration thereof under the Exchange
Act shall be in effect, no proceedings for such purpose shall be
pending before or threatened by the NYSE and all requests for
additional information on the part of the Commission shall have been
complied with; the orders of the public utility regulatory authorities
in the States of Idaho, Montana, Oregon, Utah and Wyoming each
authorizing the issuance of the Company Securities by the Company as
contemplated by this Agreement, the order dated April 27, 1988 of the
California Public Utilities Commission exempting any issuance of
securities of the Company from its jurisdiction and the order of the
Washington Utilities and Transportation Commission as to the
compliance by the Company with the filing requirements of RCW
80.08.040 shall be in full force and effect and shall not then be
either contested or the subject of review or appeal, and such orders
constitute the only approval, authorization, consent or other order of
any governmental body legally required for the authorization of the
issuance of the Company Securities by the Company and the issuance and
sale of the Series A Preferred Securities by the Trust pursuant to the
terms of this Agreement, except such as may be required under the Act
or under state or other securities or blue sky laws; and each Obligor
shall have delivered to the Representatives a certificate of the Trust
and the Company, as the case may be, signed by an authorized
representative of the Trust and by the President, the Senior Vice
President and Chief Financial Officer or the Treasurer of the Company,
as the case may be, dated the Closing Date, to such effect with copies
attached thereto of such orders and to the effect that, together with
evidence thereof, each of the Trust and the Company is validly
existing as a statutory business trust and a corporation, as the case
may be, in good standing under the laws of its jurisdiction of
organization and that the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which it owns or leases substantial properties or in
which the conduct of its business requires such qualification, except
where the failure to so qualify would not have a material adverse
effect on the financial condition of the Company and its subsidiaries
taken as a whole.
(b) Opinion of Counsel for Trust. On the Closing Date, the
Representatives shall have received an opinion of Richards, Layton &
Finger, P.A., special Delaware counsel for the Company and the Trust,
dated as of the Closing Date, in form and substance satisfactory to
Counsel for the Underwriters, to the effect that:
(i) the Trust has been duly created and is validly
existing in good standing as a business trust under the Business
Trust Act; and all filings required as of the date hereof under
the Business Trust Act with respect to the creation and valid
existence of the Trust as a business trust have been made;
(ii) under the Trust Agreement and the Business Trust
Act, the Trust has the trust power and authority (A) to own
property and to conduct its business, all as described in the
Prospectus, (B) to issue and sell the Trust Securities in
accordance with the Trust Agreement and the Prospectus and to
perform its other obligations under the Trust Agreement, this
Agreement and the
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<PAGE>
Trust Securities, (C) to execute and deliver this Agreement and
the Trust Securities and (D) to consummate the transactions
contemplated hereby;
(iii) assuming that the Trust Agreement has been duly
authorized, executed and delivered by the parties thereto, the
Trust Agreement constitutes a valid and binding obligation of
each of the Company and the Administrative Trustees enforceable
against the Company and the Administrative Trustees in accordance
with its terms, except as limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization and other similar laws
relating to or affecting creditors' rights generally, general
equitable principles, including applicable law relating to
fiduciary duties (whether considered in a proceeding in equity or
at law), and the effect of applicable public policy on the
enforceability of provisions relating to contribution or
indemnification;
(iv) the Series A Common Securities have been duly
authorized by the Trust Agreement and are validly issued
undivided beneficial interests in the assets of the Trust and
entitled to the benefits of the Trust Agreement;
(v) the Series A Preferred Securities have been duly
authorized by the Trust Agreement and are validly issued and,
subject to the qualifications set forth in paragraph (vi) below,
fully paid and non-assessable undivided beneficial interests in
the assets of the Trust and entitled to the benefits of the Trust
Agreement;
(vi) the holders of the Series A Preferred Securities,
as beneficial owners of the Trust, will be entitled to the same
limitation of personal liability extended to stockholders of
private corporations for profit organized under the General
Corporation Law of the State of Delaware (in this regard, such
counsel may note that the holders of the Series A Preferred
Securities may be obligated, pursuant to the Trust Agreement, to
provide (A) indemnity or security in connection with and pay
taxes or governmental charges arising from transfers or exchanges
of certificates for Preferred Securities and the issuance of
replacement certificates for Preferred Securities and (B)
security or indemnity in connection with requests of or
directions to the Property Trustee to exercise its rights and
powers under the Trust Agreement);
(vii) under the Trust Agreement and the Business Trust
Act, the issuance of the Trust Securities is not subject to
preemptive rights;
(viii) the issuance and sale by the Trust of the Trust
Securities, the execution, delivery and performance by the Trust
of this Agreement, and the consummation of the transactions
contemplated by this Agreement, do not violate (A) the Trust
Certificate or the Trust Agreement or (B) any applicable Delaware
law, rule or regulation; and
(ix) under the Trust Agreement and the Business Trust
Act, the issuance and sale by the Trust of the Trust Securities
and the execution and
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delivery by the Trust of this Agreement, and the performance by
the Trust of its obligations hereunder, have been duly authorized
by all necessary trust action on the part of, and this Agreement
and the certificates for the Series A Preferred Securities have
been duly executed and delivered by, the Trust.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent deemed proper, on certificates of responsible
officers of the Company and the Trust and of public officials.
References to the Registration Statements and the Prospectus in this
Section 6(b) shall include any amendments or supplements thereto at
the date such opinion is rendered.
(c) Opinion of Counsel for Obligors. On the Closing Date, the
Representatives shall have received an opinion of Counsel for the
Obligors, dated as of the Closing Date, in form and substance
satisfactory to Counsel for the Underwriters, to the effect that:
(i) the Company is a duly organized and validly
existing corporation under the laws of the State of Oregon;
(ii) the Company has due corporate right and corporate
authority (A) to own its properties and to carry on the business
in which it is engaged as described in the Prospectus, (B) to
execute and deliver, and perform its obligations under, this
Agreement, the Indenture, the Trust Agreement, the Expense
Agreement and the Company Securities and (C) to purchase, own and
hold the Series A Common Securities;
(iii) the terms of the Securities conform as to legal
matters to the description thereof and the statements in regard
thereto contained in the Prospectus;
(iv) the Trust Agreement has been duly authorized,
executed and delivered by the Company, has been duly qualified
under the Trust Indenture Act and constitutes a valid and legally
binding agreement of the Company enforceable against the Company
in accordance with its terms, except as may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization and
other similar laws relating to or affecting creditors' rights
generally, general equitable principles, including applicable law
relating to fiduciary duties (whether considered in a proceeding
in equity or at law), and the effect of applicable public policy
on the enforceability of provisions relating to contribution or
indemnification;
(v) the Indenture has been duly authorized, executed
and delivered by the Company, has been duly qualified under the
Trust Indenture Act and constitutes a valid and legally binding
agreement of the Company enforceable in accordance with its
terms, except as limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization and other similar laws relating to or
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<PAGE>
affecting creditors' rights generally and general equitable
principles (whether considered in a proceeding in equity or at
law);
(vi) the Series C Debentures have been duly authorized
and executed by the Company and, when authenticated and delivered
in accordance with the Indenture and paid for by the Trust in
accordance with the Trust Agreement, will constitute valid and
legally binding agreements of the Company enforceable in
accordance with their respective terms, except as limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization and
other similar laws relating to or affecting creditors' rights
generally and general equitable principles (whether considered in
a proceeding in equity or at law), and be entitled to the
benefits of the Indenture;
(vii) the Series A Guarantee has been duly authorized,
executed and delivered by the Company, has been duly qualified
under the Trust Indenture Act and constitutes a valid and legally
binding agreement of the Company enforceable in accordance with
its terms, except as limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization and other similar laws
relating to or affecting creditors' rights generally and general
equitable principles (whether considered in a proceeding in
equity or at law);
(viii) the Expense Agreement has been duly authorized,
executed and delivered by the Company and constitutes a valid and
legally binding agreement of the Company enforceable against the
Company in accordance with its terms, except as limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization and
other similar laws relating to or affecting creditors' rights
generally and general equitable principles (whether considered in
a proceeding in equity or at law);
(ix) this Agreement has been duly authorized, executed
and delivered by the Company;
(x) the Idaho Public Utilities Commission, the Montana
Public Service Commission, the Public Utility Commission of
Oregon, the Utah Public Service Commission and the Public Service
Commission of Wyoming have entered appropriate orders, which to
the best knowledge of such counsel remain in full force and
effect on the date of such opinion, each authorizing the issuance
of the Company Securities by the Company; the Washington
Utilities and Transportation Commission has entered an
appropriate order, which to the knowledge of such counsel remains
in full force and effect on the date of such opinion, as to the
compliance by the Company with the filing requirements of RCW
80.08.040; and such orders constitute the only approval,
authorization, consent or other order of any governmental body
legally required for the authorization of the issuance of the
Company Securities by the Company and the issuance and sale of
the Series A Preferred Securities by the Trust pursuant to the
terms of this Agreement, except such as may be required under the
Act or under state or other securities or blue sky laws;
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<PAGE>
(xi) the consummation of the transactions contemplated
by this Agreement and the fulfillment of the terms hereof will
not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, (A) the Articles or
the Company's Bylaws, as amended, or any indenture, mortgage,
deed of trust or other material agreement for money borrowed the
terms of which are known to such counsel to which the Company is
a party or by which it may be bound or (B) any order, rule or
regulation applicable to the Company of any court or any federal
or state regulatory body or administrative agency or other
governmental body having jurisdiction over the Company or its
properties, the effect of which, singly or in the aggregate, is
material to the Company;
(xii) the Registration Statements, at the respective
Effective Dates thereof, and the Prospectus, at the time it was
filed pursuant to Rule 424(b) of the Regulations under the Act
(except in each case as to financial statements and other
financial and statistical data contained or incorporated by
reference therein, upon which such opinion need not pass),
complied as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the
respective Regulations thereunder; each Incorporated Document as
originally filed pursuant to the Exchange Act (except as to
financial statements and other financial and statistical data
contained therein, upon which such opinion need not pass)
complied as to form when so filed in all material respects with
the requirements of the Exchange Act and the Regulations
thereunder; each of the Registration Statements has become, and
on the Closing Date is, effective under the Act and, to the best
of such counsel's knowledge, no proceedings for a stop order with
respect thereto are threatened or pending under Section 8 of the
Act; and nothing has come to the attention of such counsel that
has caused them to believe that either of the Registration
Statements (except as to financial statements and other financial
and statistical data contained therein, upon which such opinion
need not pass), at the respective Effective Dates thereof,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the
Prospectus (except as to financial statements and other financial
and statistical data contained therein, upon which such opinion
need not pass), at the time it was filed pursuant to Rule 424(b)
of the Regulations under the Act or on the Closing Date, included
or includes any untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading;
(xiii) those portions of the Registration Statements or
the Prospectus that are stated therein to have been made on the
authority of such counsel have been reviewed by such counsel and,
as to matters of law and legal conclusions, are correct; and
(xiv) to the best of such counsel's knowledge and
information, there are no legal or governmental proceedings
pending or threatened against the Trust or the Company or its
other subsidiaries that are required to be disclosed
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<PAGE>
in the Registration Statements and the Prospectus other than
those disclosed therein.
In rendering such opinion, Counsel for the Obligors may rely (i) as to
matters of fact, to the extent deemed proper, on certificates of
responsible officers of the Company and its subsidiaries and the Trust
and of public officials, (ii) as to matters involving the application
of the laws of the State of Delaware, upon the opinion of special
Delaware counsel for the Trust rendered pursuant to Section 6(b)
hereof and (iii) as to matters involving the application of the laws
of the State of New York, upon the opinion of Counsel for the
Underwriters rendered pursuant to Section 6(d) hereof. References to
the Registration Statements and the Prospectus in this Section 6(c)
shall include any amendments or supplements thereto at the date such
opinion is rendered.
(d) Opinion of Counsel for Underwriters. On the Closing Date, the
Representatives shall have received an opinion of Counsel for the
Underwriters, dated as of the Closing Date, with respect to the
matters set forth in paragraphs (i), (iii), (v), (vi), (vii), (ix) and
(x) and in the first, third and fourth clauses of paragraph (xii) of
Section 6(c) hereof and other related matters as the Representatives
may reasonably require, and the Obligors shall have furnished to
Counsel for the Underwriters such documents as they request for the
purpose of enabling them to pass upon such matters. In rendering such
opinion, Counsel for the Underwriters may rely (i) as to matters of
fact, to the extent deemed proper, on certificates of responsible
officers of the Company and the Trust and of public officials, (ii) as
to matters involving the application of the laws other than the State
of New York, upon the opinion of Counsel for the Obligors pursuant to
Section 6(c) hereof.
(e) Opinion of Special Tax Counsel. On the Closing Date, the
Representatives shall have received an opinion of Stoel Rives LLP,
counsel for the Obligors, dated as of the Closing Date, in form and
substance satisfactory to Counsel for the Underwriters, confirming
their opinion as set forth under "Certain Federal Income Tax
Considerations" in the Prospectus Supplement.
(f) Letter of Accountants. On the Closing Date, Deloitte & Touche
LLP shall have furnished to the Representatives a letter or letters,
dated as of the Closing Date, in form and substance satisfactory to
the Representatives, confirming that they are independent certified
public accountants within the meaning of the Act and the Regulations
thereunder with respect to the Company and its subsidiaries and
stating in effect that:
(i) in their opinion, the consolidated financial
statements and schedules included or incorporated by reference in
the Registration Statements and the Prospectus and audited by
them comply as to form in all material respects with the
applicable accounting requirements of the Act and the Regulations
thereunder;
(ii) on the basis of a reading of the unaudited
consolidated financial statements, if any, included or
incorporated by reference in the
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<PAGE>
Registration Statements and the Prospectus and the latest
available interim unaudited consolidated financial statements of
the Company, the performance of the procedures specified by the
American Institute of Certified Public Accountants for a review
of any such unaudited consolidated financial information as
described in Statement on Auditing Standards No. 71, inquiries of
officials of the Company responsible for financial and accounting
matters and a reading of the minutes of meetings of the
shareholders and the Board of Directors of the Company and the
Finance and Pricing Committees thereof through a specified date
not more than five days prior to the Closing Date, nothing came
to their attention that caused them to believe that: (A) any
material modification should be made to the unaudited
consolidated financial statements, if any, included or
incorporated by reference in the Registration Statements and the
Prospectus for them to be in conformity with generally accepted
accounting principles or any such unaudited consolidated
financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act
or the Regulations thereunder; (B) for the twelve months ended as
of the date of the latest available financial statements of the
Company, there were any decreases in revenues, earnings on common
stock or earnings per common share as compared with the
comparable period of the preceding year; or (C) at the date of
the latest available financial statements of the Company and at a
subsequent date not more than five days prior to the Closing
Date, there was any change in the capital stock (except for sales
under the Company's Dividend Reinvestment and Stock Purchase
Plan, K Plus Employee Savings and Stock Ownership Plan or Utah
Power & Light Company Employee Savings and Stock Purchase Plan of
PacifiCorp) or long-term debt of the Company or any decrease in
its net assets as compared with the amounts shown in the most
recent consolidated balance sheet included or incorporated by
reference in the Registration Statements and the Prospectus,
except in all instances for changes or decreases that either of
the Registration Statements or the Prospectus discloses have
occurred or may occur, or for changes or decreases that are
described in such letter that are reasonably satisfactory to the
Representatives; and
(iii) if unaudited pro forma financial statements are
included or incorporated by reference in the Registration
Statements and the Prospectus, on the basis of a reading of such
financial statements, carrying out certain specified procedures,
inquiries of certain officials of the Company and the company
acquired or to be acquired who have responsibility for financial
and accounting matters and proving the arithmetic accuracy of the
application of the pro forma adjustments to the historical
amounts in such pro forma financial statements, nothing came to
their attention that caused them to believe that such pro forma
financial statements do not comply in form in all material
respects with the applicable accounting requirements of Rule
11-02 of Regulation S-X or that such pro forma adjustments have
not been properly applied to such historical amounts in the
compilation of such pro forma financial statements.
Such letter shall also cover such other matters as the Representatives
shall reasonably request, including but not limited to the
"Management's Discussion and Analysis of
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Financial Condition and Results of Operations" contained in the
financial statements included or incorporated by reference in the
Registration Statements and the Prospectus and any other information
of an accounting, financial or statistical nature included therein.
References to the Registration Statements and the Prospectus in this
Section 6(f) shall include any amendments or supplements thereto at
the Closing Date.
(g) Certificates. On the Closing Date, there shall not have been,
since the respective dates as of which information is given in the
Registration Statements and the Prospectus, as they may then be
amended or supplemented, except as may otherwise be stated therein or
contemplated thereby, any material adverse change in the condition of
the Trust or of the Company and its subsidiaries taken as a whole,
financial or otherwise, or in the earnings, affairs or business
prospects of the Trust or of the Company and its subsidiaries taken as
a whole, whether or not arising in the ordinary course of business,
and the Representatives shall have received a certificate of the Trust
signed by an authorized representative of the Trust and a certificate
of the Company signed by the President, the Senior Vice President and
Chief Financial Officer or the Treasurer of the Company, reasonably
satisfactory to the Representatives, each dated as of the Closing
Date, to the effect that (i) there has been no such material adverse
change, (ii) the other representations and warranties on the part of
such Obligor contained in this Agreement are true and correct (with
the same force and effect as though expressly made on and as of the
Closing Date, except that references therein to the Registration
Statements and the Prospectus shall include any amendments or
supplements thereto at such dates), (iii) such Obligor has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied under this Agreement on or prior to the Closing
Date and (iv) no stop order suspending the effectiveness of either of
the Registration Statements (as so amended or supplemented) has been
issued and no proceedings for the purpose have been initiated or
threatened by the Commission.
(h) Ratings. Moody's Investors Service, Inc. and Standard &
Poor's Ratings Group shall have publicly assigned to the Series A
Preferred Securities ratings of [__] and [__], respectively, which
ratings shall be in full force and effect on the Closing Date.
(i) Listing and Registration. On the Closing Date, (i) the NYSE
shall have approved the Series A Preferred Securities for listing and
admission for trading, subject to official notice of issuance, and
(ii) the Company's registration statement on Form 8-A relating to the
Series A Preferred Securities shall have become effective under the
Exchange Act.
(j) Underwriters' Compensation. On the Closing Date, the Company
shall have paid, or cause to have been paid, the compensation payable
to the Underwriters under Section 2 hereof in immediately available
funds by wire transfer to an account designated by Goldman, Sachs &
Co., for the accounts of the several Underwriters.
(k) Company Securities; Purchase of Series C Debentures. On the
Closing Date, and concurrently with the issue and sale of the Series A
Preferred Securities, (i) the Company Securities shall have been
issued and (ii) the Trust shall have purchased the
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Series C Debentures with the proceeds of the Trust Securities, in each
case as contemplated by this Agreement.
(l) Other Documents. On the Closing Date, Counsel for the
Underwriters shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling
them to pass upon the issuance and sale of the Series A Preferred
Securities as hereby contemplated and related proceedings, or in order
to evidence the accuracy or completeness of any of the representations
or warranties, or the fulfillment of any of the conditions herein
contained, and all proceedings taken by the Obligors in connection
with the issuance and sale of the Securities and as hereby
contemplated shall be satisfactory in form and substance to the
Representatives and Counsel for the Underwriters.
In case any of the conditions specified above in this Section 6
shall not have been fulfilled, this Agreement may be terminated by the
Representatives upon mailing or delivering written notice thereof to the
Obligors. Any such termination shall be without liability of either party
to the other party except as otherwise provided in Section 5(i) hereof and
except for any liability under Section 8 hereof.
7. Conditions to Obligations of Obligors. The obligations of the
Obligors hereunder are subject to the conditions set forth in Section 6(a)
hereof exclusive of the first and last clauses thereof. In case such
conditions shall not have been fulfilled, this Agreement may be terminated
by the Obligors by mailing or delivering written notice thereof to the
Representatives. Any such termination shall be without liability of either
party to the other party except as otherwise provided in Section 5(i)
hereof and except for any liability under Section 8 hereof.
8. Indemnification and Contribution.
(a) Indemnification by Obligors. The Obligors jointly and
severally agree to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section
15 of the Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever arising out of any untrue statement or alleged
untrue statement of a material fact contained in a preliminary
prospectus relating to any of the Securities, if any, including all
documents then incorporated by reference therein pursuant to Item 12
of Form S-3, in the Incorporated Documents, in either of the
Registration Statements or the Prospectus, or in either of the
Registration Statements or the Prospectus as amended or supplemented
(if any amendments or supplements thereto shall have been made), or
the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading unless such untrue statement or omission or such alleged
untrue statement or omission was made in reliance upon and in
conformity with written information furnished to the Obligors by any
Underwriter, through the Representatives or otherwise, expressly for
use in the Registration Statements or the Prospectus (or any amendment
or supplement to either thereof) or arising out of, or based upon,
statements in or omissions from any of the Statements of Eligibility;
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provided, however, any such indemnity for a preliminary prospectus
relating to any of the Securities, if any, or the Prospectus shall not
inure to the benefit of any Underwriter (or of any person controlling
such Underwriter) on account of any loss, claim, damage or expense
arising from the sale of the Securities to any person if the
Prospectus or any amendments or supplements to the Prospectus shall
have been furnished to any Underwriter on a timely basis and in such
quantities to permit such Underwriter to send or give to such person
and it shall be established that such Underwriter shall have failed to
send or give to such person (i) with or prior to the written
confirmation of such sale, a copy of the Prospectus or such amendment
or supplement, except the Incorporated Documents, and the untrue
statement or omission of a material fact contained in such preliminary
prospectus or the Prospectus and giving rise to such loss, liability,
claim, damage or expense was corrected in the Prospectus or such
amendment or supplement or (ii) with or prior to the delivery of the
Securities to such person, a copy of such amendment or supplement to
the Prospectus that shall have been furnished subsequent to such
written confirmation and prior to such delivery, except the
Incorporated Documents, and the untrue statement or omission of a
material fact contained in the Prospectus and giving rise to such
loss, liability, claim, damage or expense was corrected in such
amendment or supplement;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, commenced or threatened or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Obligors; and
(iii) against any and all expense whatsoever reasonably incurred
in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under clause
(i) or (ii) above.
(b) Indemnification of Obligors. Each Underwriter severally
agrees to indemnify and hold harmless the Obligors, their directors, each
of their officers who signed either of the Registration Statements, and any
amendments or supplements thereto, and each person, if any, who controls
either Obligor within the meaning of Section 15 of the Act against any and
all loss, liability, claim, damage and expense described in the indemnity
contained in Section 8(a) hereof, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in
either of the Registration Statements (or any amendment thereto) or a
preliminary prospectus relating to any of the Securities, if any, or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Obligors by such
Underwriter, through the Representatives or otherwise, expressly for use in
the Registration Statements (or any amendment or supplement thereto) or any
such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) General. Each indemnified party shall give prompt notice to
each indemnifying party of any action commenced against it in respect of
which indemnity may be
-24-
<PAGE>
sought hereunder, but failure so to notify an indemnifying party shall not
relieve it from any liability on account of this indemnity agreement except
to the extent that it has been prejudiced in any material respect by such
failure or from any liability that it may have otherwise than on account of
this indemnity agreement. An indemnifying party may participate at its own
expense in the defense of such action. If it so elects within a reasonable
time after receipt of such notice, an indemnifying party, jointly with any
other indemnifying parties receiving such notice, may assume the defense of
such action with counsel chosen by it and approved by the indemnified
parties defendant in such action, unless such indemnified parties
reasonably object to such assumption on the ground that there may be legal
defenses available to them that are different from or in addition to those
available to such indemnifying party, in which case such indemnifying party
cannot assume the control of the defense. Such firm shall be designated in
writing by, in the case of parties indemnified under Section 8(b) hereof,
the Representatives and, in the case of parties indemnified under Section
8(a) hereof, the Obligors. If an indemnifying party assumes the defense of
such action, the indemnifying parties shall not be liable for any fees and
expenses of counsel for the indemnified parties incurred thereafter in
connection with such action. Fees and expenses to be paid by the
indemnifying parties shall be reimbursed as they are incurred. In no event
shall the indemnifying parties be liable for the fees and expenses of more
than one counsel, including any local counsel, for all indemnified parties
in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the
prior written consent of each indemnified party, effect any settlement of
any pending or threatened proceeding in respect of which such indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability claims
that are the subject matter of such proceeding.
(d) Contribution. If the indemnification provided for in this
Section 8 is unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(b) hereof in respect of any losses, claims,
damages or expenses (or actions in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages or
expenses (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Obligors on
the one hand and the Underwriters on the other from the offering of the
Securities. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law, then such
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Obligors on the
one hand and the Underwriters on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
expenses (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Obligors on
the one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as
determined in accordance with the cover page of the Prospectus Supplement.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by either Obligor or the Underwriters and the parties'
relative intent,
-25-
<PAGE>
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Underwriters and the Obligors agree that it
would not be just and equitable if contribution pursuant to this Section
8(d) were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations
referred to above in this Section 8(d). The amount paid or payable to an
indemnified party as a result of the losses, claims, damages or expenses
(or actions in respect thereof) referred to above in this Section 8(d)
shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such action or claim. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) Confirmation of Certain Statements. The Underwriters confirm
that the statements with respect to the public offering of the Series A
Preferred Securities set forth in the last paragraph on the cover page of,
and the statements with respect to the resale of any Series A Preferred
Securities at a discount in the second paragraph under the list of
Underwriters set forth under the caption "Underwriting" in, the Prospectus
Supplement are correct and were furnished in writing to the Obligors by the
Underwriters for inclusion in the Prospectus.
9. Termination. The Representatives may, by notice to the
Obligors, terminate this Agreement at any time at or prior to the Closing
Date, if (a) a banking moratorium shall have been declared either by
federal authorities or authorities in the States of New York or Oregon, (b)
trading in securities generally on the NYSE or of any securities of the
Company shall have been suspended by the Commission, the NYSE or the
Pacific Stock Exchange or there shall have been established by the
Commission or the NYSE, any federal or state agency or the decision of any
court any limitation on the prices for such trading or any restrictions on
the distribution of such securities, (c) any outbreak or material
escalation of hostilities or other calamity or crisis affecting the
financial markets of the United States shall have occurred, (d) a
downgrading shall have occurred in the ratings of any of the Preferred
Securities or any preferred stock or first mortgage or first mortgage and
collateral trust bonds of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 15c3-1 of
the Regulations under the Exchange Act), (e) a Special Event shall have
occurred or (f) any change in the business or properties of the Company or
the Trust shall have occurred, the effect of which is such as to make it
impracticable to proceed with the sale or delivery of the Series A
Preferred Securities and, in the case of any of the events specified in
clauses (a) through (e) of this Section 9, the effect of such event, singly
or together with any other such events, is such as to make it, in the
judgment of the Representatives, impracticable to proceed with the sale or
delivery of the Series A Preferred Securities. Any termination hereof
pursuant to this Section 9 shall be without liability of any party to any
other party except as otherwise provided in Section 5(i) hereof and except
for any liability under Section 8 hereof.
10. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, or contained in certificates signed by officers of the Company
or authorized representatives of the Trust, submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or any controlling
person of any
-26-
<PAGE>
Underwriter, or by or on behalf of either Obligor, and shall survive
delivery of the Series A Preferred Securities to the Underwriters.
11. Miscellaneous. The validity and interpretation of this
Agreement shall be governed by the laws of the State of New York. This
Agreement shall inure to the benefit of the Obligors and the Underwriters
and, with respect to the provisions of Section 8 hereof, each controlling
person referred to in Section 8 hereof, and their respective successors,
assigns, executors and administrators. Nothing in this Agreement is
intended or shall be construed to give to any other person, firm or
corporation any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. The term
"successors" as used in this Agreement shall not include any purchaser, as
such purchaser, of any of the Series A Preferred Securities from any of the
Underwriters. This Agreement may be executed in any number of separate
counterparts all of which together shall constitute the same Agreement.
12. Notices and Authority to Act. All communications hereunder
shall be in writing (which may be telex or facsimile transmission) and
effective only upon receipt and, if to the Underwriters, shall be sent to
the Representatives at the address set forth at the beginning of this
Agreement or, if to either Obligor, shall be sent to it at PacifiCorp, 700
N.E. Multnomah, Suite 1600, Portland, Oregon 97232, Attention of Richard T.
O'Brien, Senior Vice President and Chief Financial Officer.
-27-
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Obligors the enclosed duplicate
hereof, whereupon this letter will become a binding agreement among the
Obligors and the several Underwriters in accordance with its terms.
Very truly yours,
PACIFICORP
By
--------------------------------
Name:
Title:
PACIFICORP CAPITAL I
By
--------------------------------
Name:
Title:
Accepted as of the date
first above written:
GOLDMAN, SACHS & CO.
SMITH BARNEY INC.
DEAN WITTER REYNOLDS INC.
A.G. EDWARDS & SONS, INC.
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner
& Smith Incorporated
By:
------------------------------
(Goldman, Sachs & Co.)
As representatives of the
other several Underwriters
named in Schedule I hereto
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<PAGE>
SCHEDULE I
----------
Number of Series A
Underwriter Preferred Securities
----------- --------------------
Goldman, Sachs & Co.
Smith Barney Inc.
Dean Witter Reynolds Inc.
A.G. Edwards & Sons, Inc.
Merrill Lynch & Co.
Merrill Lynch, Pierce,
Fenner & Smith Incorporated
Total [ ]
===========
PACIFICORP
AND
THE BANK OF NEW YORK,
AS TRUSTEE
INDENTURE
DATED AS OF MAY 1, 1995
JUNIOR SUBORDINATED DEBENTURES
<PAGE>
CROSS-REFERENCE TABLE
Section of
Trust Indenture Act Section of
of 1939, as amended Indenture
- ------------------- ----------
310(a).........................................................7.09
310(b).........................................................7.08
7.10
310(c).........................................................Inapplicable
311(a).........................................................7.13(a)
311(b).........................................................7.13(b)
311(c).........................................................Inapplicable
312(a).........................................................5.01
5.02(a)
312(b).........................................................5.02(b)
312(c).........................................................5.02(c)
313(a).........................................................5.04(a)
313(b).........................................................5.04(b)
313(c).........................................................5.04(a)
5.04(b)
313(d).........................................................5.04(c)
314(a).........................................................5.03
314(b).........................................................Inapplicable
314(c).........................................................13.06
314(d).........................................................Inapplicable
314(e).........................................................13.06
314(f).........................................................Inapplicable
315(a).........................................................7.01(a)
7.02
315(b).........................................................6.07
315(c).........................................................7.01
315(d).........................................................7.01(b)
7.01(c)
315(e).........................................................6.08
316(a).........................................................6.06
8.04
316(b).........................................................6.04
316(c).........................................................8.01
317(a).........................................................6.02
317(b).........................................................4.04
318(a).........................................................13.08
i
<PAGE>
TABLE OF CONTENTS*
Page
----
PARTIES................................................................iv, 1
RECITALS:
Purpose of Indenture....................................................1
Compliance with legal requirements......................................1
Purpose of and consideration for Indenture..............................1
ARTICLE ONE
DEFINITIONS
SECTION 1.01 Certain terms defined; other terms defined in
the Trust Indenture Act of 1939, as amended,
or by reference therein in the Securities Act
of 1933, as amended, to have the meanings
assigned therein..........................................1
Authenticating Agent......................................1
Board of Directors........................................1
Board Resolution..........................................1
Business Day..............................................2
Certificate...............................................2
Corporate Trust Office....................................2
Company...................................................2
Debenture or Debentures...................................2
Debentureholder...........................................2
Default...................................................2
Depository................................................2
Event of Default..........................................2
Global Debenture..........................................2
Governmental Obligations..................................2
Indenture.................................................3
Interest Payment Date.....................................3
Officers' Certificate.....................................3
Opinion of Counsel........................................3
Outstanding...............................................3
Predecessor Debenture.....................................3
Responsible Officer.......................................3
Senior Indebtedness.......................................4
Trustee...................................................4
Trust Indenture Act.......................................4
ARTICLE TWO
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION
AND EXCHANGE OF DEBENTURES
SECTION 2.01 Designation, terms, amount, authentication and
delivery of Debentures....................................4
SECTION 2.02 Form of Debentures and Trustee's certificate..............5
SECTION 2.03 Date and denominations of Debentures, and
provisions for payment of principal, premium
and interest..............................................5
SECTION 2.04 Execution of Debentures...................................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.
ii
<PAGE>
SECTION 2.05 Exchange of Debentures....................................7
(a) Registration and transfer of Debentures..............7
(b) Debentures to be accompanied by proper instruments
of transfer..........................................7
(c) Charges upon exchange, transfer or registration of
Debentures...........................................7
(d) Restrictions on transfer or exchange at time of
redemption...........................................7
SECTION 2.06 Temporary Debentures......................................8
SECTION 2.07 Mutilated, destroyed, lost or stolen Debentures...........8
SECTION 2.08 Cancellation of surrendered Debentures....................8
SECTION 2.09 Provisions of Indenture and Debentures for sole benefit
of parties and Debentureholders...........................8
SECTION 2.10 Appointment of Authenticating Agent.......................9
SECTION 2.11 Global Debenture..........................................9
ARTICLE THREE
REDEMPTION OF DEBENTURES AND SINKING FUND PROVISIONS
SECTION 3.01 Redemption of Debentures..................................10
SECTION 3.02 (a) Notice of redemption.................................10
(b) Selection of Debentures in case less than all
Debentures to be redeemed............................11
SECTION 3.03 (a) When Debentures called for redemption become due
and payable..........................................11
(b) Receipt of new Debenture upon partial payment........11
SECTION 3.04 Sinking Fund for Debentures...............................11
SECTION 3.05 Satisfaction of Sinking Fund Payments with Debentures.....11
SECTION 3.06 Redemption of Debentures for Sinking Fund.................12
iii
<PAGE>
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01 Payment of principal of (and premium, if any) and
interest on Debentures....................................12
SECTION 4.02 Maintenance of office or agency for payment of
Debentures, designation of office or agency for
payment, registration, transfer and exchange
of Debentures.............................................12
SECTION 4.03 (a) Duties of paying agent...............................12
(b) Company as paying agent..............................12
(c) Holding sums in trust................................13
SECTION 4.04 Appointment to fill vacancy in office of Trustee..........13
SECTION 4.05 Restriction on consolidation, merger or sale..............13
SECTION 4.06 Restriction on declaration of dividends, etc..............13
ARTICLE FIVE
DEBENTUREHOLDERS' LISTS, AND REPORTS BY THE COMPANY
AND THE TRUSTEE
SECTION 5.01 Company to furnish Trustee information as to names and
addresses of Debentureholders.............................13
SECTION 5.02 (a) Trustee to preserve information as to names and
addresses of Debentureholders received by it in
capacity of paying agent.............................13
(b) Trustee may destroy list of Debentureholders on
certain conditions...................................13
(c) Trustee to make information as to names and
addresses of Debentureholders available to
"applicants" or mail communications to
Debentureholders in certain circumstances............14
(d) Procedure if Trustee elects not to make information
available to applicants..............................14
(e) Company and Trustee not accountable for disclosure
of information.......................................14
SECTION 5.03 (a) Annual and other reports to be filed by Company
with Trustee.........................................14
(b) Additional information and reports to be filed with
Trustee and Securities and Exchange Commission.......14
(c) Summaries of information and reports to be
transmitted by Company to Debentureholders...........15
(d) Annual Certificate to be furnished to Trustee........15
(e) Reports concerning original issue discount...........15
SECTION 5.04 (a) Trustee to transmit annual report to
Debentureholders.....................................15
iv
<PAGE>
(b) Trustee to transmit certain further reports to
Debentureholders.....................................15
(c) Copies of reports to be filed with stock exchanges
and Securities and Exchange Commission...............16
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS
UPON EVENT OF DEFAULT
SECTION 6.01 (a) Events of Default defined............................16
(b) Acceleration of maturity upon Event of Default.......16
(c) Waiver of default and rescission of declaration of
maturity.............................................17
(d) Restoration of former position and rights upon
curing default.......................................17
SECTION 6.02 (a) Covenant of Company to pay to Trustee whole amount
due on Debentures on default in payment of interest
or principal (and premium, if any)...................17
(b) Trustee may recover judgment for whole amount due
on Debentures on failure of Company to pay...........17
(c) Filing of proof of claim by Trustee in bankruptcy,
reorganization or receivership proceeding............17
(d) Rights of action and of asserting claims may be
enforced by Trustee without possession of Debentures.17
SECTION 6.03 Application of moneys collected by Trustee................18
SECTION 6.04 Limitation on suits by holders of Debentures..............18
SECTION 6.05 (a) Remedies cumulative..................................18
(b) Delay or omission in exercise of rights not waiver
of default...........................................19
SECTION 6.06 Rights of holders of majority in principal amount of
Debentures to direct Trustee and to waive defaults........19
SECTION 6.07 Trustee to give notice of defaults known to it, but may
withhold in certain circumstances.........................19
SECTION 6.08 Requirements of an undertaking to pay costs in certain
suits under Indenture or against Trustee..................19
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......................19
(b) Trustee not relieved from liability for negligence
or willful misconduct except as provided in this
section..............................................20
(1) Prior to Event of Default and after the curing of
all Events of Default which may have occurred........20
v
<PAGE>
(i) Trustee not liable except for performance of duties
specifically set forth...............................20
(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..........20
(2) Trustee not liable for error of judgment made in
good faith by Responsible Officer unless Trustee
negligent............................................20
(3) Trustee not liable for action or non-action in
accordance with direction of holders of majority
in principal amount of Debentures....................20
(4) Trustee need not expend own funds without adequate
indemnity............................................20
(c) Provisions regarding liability of Trustee subject
to Section 7.01......................................20
SECTION 7.02 Subject to provisions of Section 7.01:
(a) Trustee may rely on documents believed genuine and
properly signed or presented.........................20
(b) Sufficient evidence by certain instruments
provided for.........................................20
(c) Trustee may obtain Officer's Certificate.............20
(d) Trustee may consult with counsel and act on advice
or Opinion of Counsel................................21
(e) Trustee may require indemnity from Debentureholders..21
(f) Prior to Event of Default Trustee not bound
to investigate facts or matters stated in
certificates, etc., unless requested in writing
by Debentureholders..................................21
(g) Trustee not liable for actions in good faith
believed to be authorized............................21
(h) Trustee not bound to make investigation..............21
(i) Trustee may perform duties directly or through
agents or attorneys..................................21
(j) Application for Instructions.........................21
SECTION 7.03 (a) Trustee not liable for recitals in Indenture or in
Debentures...........................................21
(b) No representations by Trustee as to validity of
Indenture or of Debentures...........................21
(c) Trustee not accountable for use of Debentures or
proceeds.............................................21
SECTION 7.04 Trustee, paying agent or Debenture Registrar may own
Debentures................................................21
SECTION 7.05 Moneys received by Trustee to be held in trust without
interest..................................................21
SECTION 7.06 (a) Trustee entitled to compensation, reimbursement and
indemnity............................................21
(b) Obligations to Trustee to be secured by claim prior
to Debentures........................................21
vi
<PAGE>
(c) Services in connection with Event of Default.........22
SECTION 7.07 Right of Trustee to rely on certificate of officers of
Company where no other evidence specifically prescribed...22
SECTION 7.08 Trustee acquiring conflicting interest to eliminate
conflict or resign........................................22
SECTION 7.09 Requirements for eligibility of Trustee...................22
SECTION 7.10 (a) Resignation of Trustee and appointment of successor..22
(b) Removal of Trustee by Company or by court on
Debentureholders' application........................23
(c) Removal of Trustee by holders of majority in principal
amount of Debentures.................................23
(d) Time when resignation or removal of Trustee
effective............................................23
(e) One Trustee for each series..........................23
SECTION 7.11 (a) Acceptance by successor to Trustee...................23
(b) Trustee with respect to less than all series.........23
(c) Company to confirm Trustee's rights..................24
(d) Successor Trustee to be qualified....................24
(e) Notice of succession.................................24
SECTION 7.12 Successor to Trustee by merger, consolidation or
succession to business....................................24
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..................................24
ARTICLE EIGHT
CONCERNING THE DEBENTUREHOLDERS
SECTION 8.01 Evidence of action by Debentureholders....................24
SECTION 8.02 Proof of execution of instruments and of holding
of Debentures.............................................25
SECTION 8.03 Who may be deemed owners of Debentures....................25
SECTION 8.04 Debentures owned by Company or controlled or controlling
companies disregarded for certain purposes................25
SECTION 8.05 Instruments executed by Debentureholders bind
future holders............................................25
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01 Purposes for which supplemental indenture may be entered
into without consent of Debentureholders..................25
SECTION 9.02 Modification of Indenture with consent
of Debentureholders.......................................26
vii
<PAGE>
SECTION 9.03 Effect of supplemental indentures.........................27
SECTION 9.04 Debentures may bear notation of changes by
supplemental indentures...................................27
SECTION 9.05 Opinion of Counsel........................................27
ARTICLE TEN
CONSOLIDATION, MERGER AND SALE
SECTION 10.01 Consolidations or mergers of Company and sales or
conveyances of property of Company permitted..............27
SECTION 10.02 (a) Rights and duties of successor company...............27
(b) Appropriate changes may be made in phraseology and
form of Debentures...................................28
(c) Company may consolidate or merge into itself or
acquire properties of other corporations.............28
SECTION 10.03 Opinion of Counsel........................................28
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 11.01 Satisfaction and discharge of Indenture...................28
SECTION 11.02 Discharge of Company's Obligations........................28
SECTION 11.03 Opinion of Counsel........................................28
SECTION 11.04 Application by Trustee of funds deposited for payment
of Debentures.............................................29
SECTION 11.05 Repayment of moneys held by paying agent..................29
SECTION 11.06 Repayment of moneys held by Trustee.......................29
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01 Incorporators, stockholders, officers and directors of
Company exempt from individual liability..................29
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.01 Successors and assigns of Company bound by Indenture......29
SECTION 13.02 Acts of board, committee or officer of successor
company valid.............................................30
SECTION 13.03 Required notices or demands may be served by mail.........30
SECTION 13.04 Indenture and Debentures to be construed in accordance
with laws of the State of New York........................30
SECTION 13.05 (a) Officers' Certificate and Opinion of Counsel to be
furnished upon applications or demands by Company....30
viii
<PAGE>
(b) Statements to be included in each certificate or
opinion with respect to compliance with condition
or covenant..........................................30
SECTION 13.06 Opinion of Counsel to be furnished upon execution
of Indenture..............................................30
SECTION 13.07 Payments due on Sundays or holidays.......................30
SECTION 13.08 Provisions required by Trust Indenture Act of 1939
to control................................................30
SECTION 13.09 Indenture may be executed in counterparts.................30
SECTION 13.10 Separability of Indenture provisions......................30
SECTION 13.11 Assignment by Company to subsidiary.......................30
SECTION 13.12 Agreement that Debentures constitute debt.................31
ARTICLE FOURTEEN
SUBORDINATION OF DEBENTURES
SECTION 14.01 Agreement of Subordination................................31
SECTION 14.02 Limitations on payments to Debentureholders...............31
SECTION 14.03 Payments in bankruptcy....................................31
SECTION 14.04 Subrogation of Debentures.................................32
SECTION 14.05 Authorization by Debentureholders.........................32
SECTION 14.06 Notice to Trustee.........................................33
SECTION 14.07 Trustee's relation to Senior Indebtedness.................33
SECTION 14.08 Acts of holders of Senior Indebtedness....................33
ACCEPTANCE OF TRUST BY TRUSTEE...........................................34
TESTIMONIUM..............................................................34
SIGNATURES AND SEALS.....................................................34, 35
ACKNOWLEDGEMENTS.........................................................34
ix
<PAGE>
THIS INDENTURE, dated as of the 1st day of May, 1995, between
PACIFICORP, a corporation duly organized and existing under the laws of the
State of Oregon (hereinafter sometimes referred to as the "Company"), and
THE BANK OF NEW YORK, a New York banking corporation organized and existing
under the laws of the State of New York, as trustee (hereinafter sometimes
referred to as the "Trustee"):
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance of debentures (hereinafter referred to as the "Debentures"), in an
unlimited aggregate principal amount to be issued from time to time in one
or more series as in this Indenture provided as registered Debentures
without coupons, to be authenticated by the certificate of the Trustee;
WHEREAS, to provide the terms and conditions upon which the Debentures
are to be authenticated, issued and delivered, the Company has duly
authorized the execution of this Indenture;
WHEREAS, the Debentures and the certificate of authentication to be
borne by the Debentures (the "Certificate of Authentication") are to be
substantially in such forms as may be approved by the Board of Directors
(as defined below) or set forth in any indenture supplemental to this
Indenture; and
WHEREAS, all acts and things necessary to make the Debentures issued
pursuant hereto, when executed by the Company and authenticated and
delivered by the Trustee as in this Indenture provided, the valid, binding
and legal obligations of the Company, and to constitute these presents a
valid indenture and agreement according to its terms, have been done and
performed or will be done and performed prior to the issuance of the
Debentures, and the execution of this Indenture and the issuance hereunder
of the Debentures have been or will be prior to issuance in all respects
duly authorized, and the Company, in the exercise of the legal right and
power in it vested, executes this Indenture and proposes to make, execute,
issue and deliver the Debentures;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the
Debentures are and are to be authenticated, issued and delivered, and in
consideration of the premises, of the purchase and acceptance of the
Debentures by the holders thereof and of the sum of one dollar ($1.00) to
it duly paid by the Trustee at the execution of these presents, the receipt
whereof is hereby acknowledged, the Company covenants and agrees with the
Trustee, for the equal and proportionate benefit (subject to the provisions
of this Indenture) of the respective holders from time to time of the
Debentures, without any discrimination, preference or priority of any one
Debenture over any other by reason of priority in the time of issue, sale
or negotiation thereof, or otherwise, except as provided herein, as
follows:
ARTICLE ONE
Definitions
SECTION 1.01. The terms defined in this Section (except as in this
Indenture otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture, any resolution of the Board
of Directors of the Company and of any indenture supplemental hereto shall
have the respective meanings specified in this Section. All other terms
used in this Indenture which are defined in the Trust Indenture Act, or
which are by reference in the Trust Indenture Act defined in the Securities
Act of 1933, as amended (the "Securities Act"), (except as herein otherwise
expressly provided or unless the context otherwise requires), shall have
the meanings assigned to such terms in the Trust Indenture Act and in the
Securities Act as in force at the date of the execution of this instrument.
Authenticating Agent:
The term "Authenticating Agent" means an authenticating agent with respect
to all or any of the series of Debentures, as the case may be, appointed
with respect to all or any series of the Debentures, as the case may be, by
the Trustee pursuant to Section 2.10.
Board of Directors:
The term "Board of Directors" means the Board of Directors of the Company,
or any committee of such Board duly authorized to act on behalf thereof
hereunder.
Board Resolution:
The term "Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification.
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Business Day:
The term "Business Day", with respect to any series of Debentures, means
any day other than a day on which banking institutions in the Borough of
Manhattan, the City and State of New York, are authorized to close.
Certificate:
The term "Certificate" means a certificate signed by the principal
executive officer, principal financial officer or principal accounting
officer of the Company. The Certificate need not comply with the provisions
of Section 13.05.
Corporate Trust Office:
The term "Corporate Trust Office" means the office of the Trustee at which
at any particular time its corporate trust business shall be principally
administered, which office at the date of the execution of this Indenture
is located at 101 Barclay Street, New York, NY 10286, Attention: Corporate
Trust Trustee Administration.
Company:
The term "Company" means PacifiCorp, a corporation duly organized and
existing under the laws of the State of Oregon, and, subject to the
provisions of Article Ten, also includes its successors and assigns.
Debenture or Debentures:
The term "Debenture" or "Debentures" means any Debenture or Debentures, as
the case may be, authenticated and delivered under this Indenture.
Debentureholder:
The term "Debentureholder," "holder of Debentures," "registered holder" or
other similar term means the person or persons in whose name or names a
particular Debenture shall be registered on the books of the Company kept
for that purpose in accordance with the terms of this Indenture.
Default:
The term "default" means any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
Depository:
The term "Depository" means, with respect to Debentures of any series for
which the Company shall determine that such Debentures will be issued as a
Global Debenture, The Depository Trust Company, New York, New York, another
clearing agency or any successor registered as a clearing agency under the
Securities and Exchange Act of 1934, as amended (the "Exchange Act"), or
other applicable statute or regulation, which, in each case, shall be
designated by the Company pursuant to either Section 2.01 or 2.11.
Event of Default:
The term "Event of Default" means, with respect to Debentures of a
particular series, any event specified in Section 6.01, continued for the
period of time, if any, therein designated.
Global Debenture:
The term "Global Debenture" means, with respect to any series of
Debentures, a Debenture executed by the Company and delivered by the
Trustee to the Depository or pursuant to the Depository's instruction, all
in accordance with the Indenture, which shall be registered in the name of
the Depository or its nominee.
Governmental Obligations:
The term "Governmental Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a person controlled
or supervised by and acting as an agency or instrumentality of the United
States of America, the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America, which, in
either
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case, are not callable or redeemable at the option of the issuer thereof,
and shall also include a depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act) as custodian with respect to any
such Governmental Obligation or a specific payment of principal of or
interest on any such Governmental Obligation held by such custodian for the
account of the holder of such depository receipt; provided that (except as
required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depository receipt from any
amount received by the custodian in respect of the specific payment of
principal of or interest on the Governmental Obligation evidenced by such
depository receipt.
Indenture:
The term "Indenture" means this instrument as originally executed, or, if
amended or supplemented as herein provided, as so amended or supplemented.
Interest Payment Date:
The term "Interest Payment Date," when used with respect to any installment
of interest on a Debenture of a particular series, means the date specified
in such Debenture, a Board Resolution or an indenture supplemental hereto
with respect to that series as the fixed date on which an installment of
interest with respect to Debentures of that series is due and payable.
Officers' Certificate:
The term "Officers' Certificate" means a certificate signed by the
President or a Vice President and by the Treasurer or an Assistant
Treasurer or the Controller or an Assistant Controller or the Secretary or
an Assistant Secretary of the Company. Each such certificate shall include
the statements provided for in Section 13.05, if and to the extent required
by the provisions thereof.
Opinion of Counsel:
The term "Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be counsel for the Company, reasonably acceptable to the
Trustee. Each such opinion shall include the statements provided for in
Section 13.05, if and to the extent required by the provisions thereof.
Outstanding:
The term "outstanding", when used with reference to Debentures of any
series, means , subject to the provisions of Section 8.04, as of any
particular time, all Debentures of that series theretofore authenticated
and delivered by the Trustee under this Indenture, except (a) Debentures
theretofore canceled by the Trustee or any paying agent, or delivered to
the Trustee or any paying agent for cancellation or which have previously
been canceled; (b) Debentures or portions thereof for the payment or
redemption of which moneys or Governmental Obligations in the necessary
amount shall have been deposited in trust with the Trustee or with any
paying agent (other than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company shall act as its own
paying agent); provided, however, that if such Debentures or portions of
such Debentures are to be redeemed prior to the maturity thereof, notice of
such redemption shall have been given as in Article Three provided, or
provision satisfactory to the Trustee shall have been made for giving such
notice; (c) Debentures in lieu of or in substitution for which other
Debentures shall have been authenticated and delivered pursuant to the
terms of Section 2.07; and (d) Debentures paid pursuant to Section 2.07.
Predecessor Debenture:
The term "Predecessor Debenture" of any particular Debenture means every
previous Debenture evidencing all or a portion of the same debt as that
evidenced by that particular Debenture; and, for the purposes of this
definition, any Debenture authenticated and delivered under Section 2.07 in
lieu of a lost, destroyed or stolen Debenture shall be deemed to evidence
the same debt as the lost, destroyed or stolen Debenture.
Responsible Officer:
The term "Responsible Officer," when used with respect to the Trustee,
means the chairman of the board of directors, president, any vice
president, secretary, treasurer, any trust officer, any corporate trust
officer or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the persons
who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his or her knowledge of and
familiarity with the particular subject.
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Senior Indebtedness:
The term "Senior Indebtedness" of the Company means the principal of, and
premium, if any, and interest on and any other payment due pursuant to any
of the following, whether outstanding at the date of execution of this
Indenture or thereafter incurred, created or assumed: (a) all indebtedness
of the Company evidenced by notes, debentures, bonds or other securities
sold by the Company for money, (b) all indebtedness of others of the kinds
described in the preceding clause (a) assumed by or guaranteed in any
manner by the Company or in effect guaranteed by the Company through an
agreement to purchase, contingent or otherwise, and (c) all renewals,
extensions or refundings of indebtedness of the kinds described in either
of the preceding clauses (a) and (b) unless, in the case of any particular
indebtedness, renewal, extension or refunding, the instrument creating or
evidencing the same or the assumption or guarantee of the same expressly
provides that such indebtedness, renewal, extension or refunding is not
superior in right of payment to or is pari passu with the Debentures. Such
Senior Indebtedness shall continue to be Senior Indebtedness and entitled
to the benefits of the subordination provisions set forth in Article
Fourteen of this Indenture irrespective of any amendment, modification or
waiver of any term of such Senior Indebtedness.
Trustee:
The term "Trustee" means The Bank of New York and, subject to the
provisions of Article Seven, shall also include its successors and assigns,
and if at any time there is more than one person acting in such capacity
hereunder, "Trustee" means each such person. The term "Trustee" as used
with respect to a particular series of the Debentures means the trustee
with respect to that series.
Trust Indenture Act:
The term "Trust Indenture Act," subject to the provisions of Sections 9.01,
9.02 and 10.01, means the Trust Indenture Act of 1939, as amended and in
effect at the date of execution of this Indenture.
ARTICLE TWO
Issue, Description, Terms, Execution,
Registration and Exchange of Debentures
SECTION 2.01. The aggregate principal amount of Debentures which may
be authenticated and delivered under this Indenture is unlimited.
The Debentures may be issued in one or more series up to the aggregate
principal amount of Debentures of that series from time to time authorized
by or pursuant to a Board Resolution or pursuant to one or more indentures
supplemental hereto, prior to the initial issuance of Debentures of a
particular series. Prior to the initial issuance of Debentures of any
series, there shall be established in or pursuant to a Board Resolution
delivered to the Trustee, and set forth in an Officers' Certificate
delivered to the Trustee, or established in one or more indentures
supplemental hereto:
(1) the title of the Debentures of the series (which shall
distinguish the Debentures of that series from all other Debentures);
(2) any limit upon the aggregate principal amount of the
Debentures of that series which may be authenticated and delivered
under this Indenture (except for Debentures authenticated and
delivered upon registration of transfer of, in exchange for or in lieu
of other Debentures of that series);
(3) the date or dates on which the principal of the Debentures of
that series is payable;
(4) the rate or rates at which the Debentures of that series
shall bear interest or the manner of calculation of such rate or
rates, if any;
(5) the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest will be payable or the
manner of determination of such Interest Payment Dates and the record
date for the determination of holders to whom interest is payable on
any such Interest Payment Dates;
(6) the right, if any, to extend the interest payment periods and
the duration of such extension;
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(7) the period or periods within which, the price or prices at
which and the terms and conditions upon which Debentures of that
series may be redeemed, in whole or in part, at the option of the
Company;
(8) the obligation, if any, of the Company to redeem or purchase
Debentures of that series pursuant to any sinking fund or analogous
provisions (including payments made in cash in anticipation of future
sinking fund obligations) or at the option of a holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which, Debentures of that series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) the form of the Debentures of that series, including the form
of the Certificate of Authentication for that series;
(10) if denominations of other than $25 or any integral multiple
thereof, the denominations in which Debentures of that series shall be
issuable; (11) any and all other terms with respect to that series
(which terms shall not be inconsistent with the terms of this
Indenture); and
(12) whether the Debentures are issuable as a Global Debenture
and, in such case, the identity of the Depository for that series.
All Debentures of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to any such Board Resolution or in any indentures supplemental
hereto.
If any of the terms of that series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of that series.
SECTION 2.02. The Debentures of any series and the Certificate of
Authentication to be borne by such Debentures shall be substantially of the
tenor and purport as set forth in one or more indentures supplemental
hereto or as provided in a Board Resolution and as set forth in an
Officers' Certificate, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the Company may deem appropriate and as
are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on
which Debentures of that series may be listed, or to conform to usage.
SECTION 2.03. The Debentures shall be issuable as registered
Debentures and in denominations of $25 or any integral multiple thereof,
subject to Section 2.01(10). The Debentures of a particular series shall
bear interest payable on the dates and at the rate or rates specified with
respect to that series. The principal of and the interest on the Debentures
of any series, as well as any premium thereon in case of redemption thereof
prior to maturity, shall be payable in the coin or currency of the United
States of America which at the time is legal tender for public and private
debt, at the office or agency of the Company maintained for that purpose in
the Borough of Manhattan, the City and State of New York (which, unless
changed, shall be a corporate trust office or agency of the Trustee). At
the Company's option, payments on the Debentures of any series may also be
made (i) by checks mailed by the Trustee to the holders entitled thereto at
their registered addresses or (ii) to a holder of $1,000,000 or more in
aggregate principal amount of the Debentures who has delivered a written
request to the Trustee at least 14 days prior to the relevant Interest
Payment Date electing to have payments made by wire transfer to a
designated account in the United States, by wire transfer of immediately
available funds to such designated account; provided that, in either case,
the payment of principal with respect to any Debenture will be made only
upon surrender of that Debenture to the Trustee. Each Debenture shall be
dated the date of its authentication. Interest on the Debentures shall be
computed on the basis of a 360-day year composed of twelve 30-day months
and, for any period shorter than a full calendar month, on the basis of the
actual number of days elapsed in such period.
The interest installment on any Debenture which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date for
Debentures of that series shall be paid to the person in whose name that
Debenture (or one or more Predecessor Debentures) is registered at the
close of business on the regular record date for such interest installment.
In the event that any Debenture of a particular series or portion thereof
is called for redemption and the redemption date is subsequent to a regular
record date with respect to any Interest Payment
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Date and prior to such Interest Payment Date, interest on that Debenture
will be paid upon presentation and surrender of that Debenture as provided
in Section 3.03.
Any interest on any Debenture which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date for Debentures of
the same series (herein called "Defaulted Interest") shall forthwith cease
to be payable to the registered holder on the relevant regular record date
by virtue of having been such holder; and such Defaulted Interest shall be
paid by the Company, at its election, as provided in clause (1) or clause
(2) below:
(1) The Company may make payment of any Defaulted Interest on
Debentures to the persons in whose names such Debentures (or their
respective Predecessor Debentures) are registered at the close of
business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner: the Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each such Debenture and the date of
the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit prior
to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a special record date for the payment of such Defaulted
Interest which shall not be more than 15 nor less than 10 days prior
to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such special record date
and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the special
record date therefor to be mailed, first-class postage prepaid, to
each Debentureholder at his or her address as it appears in the
Debenture Register (as hereinafter defined), not less than 10 days
prior to such special record date. Notice of the proposed payment of
such Defaulted Interest and the special record date therefor having
been mailed as aforesaid, such Defaulted Interest shall be paid to the
persons in whose names such Debentures (or their respective
Predecessor Debentures) are registered on such special record date and
shall be no longer payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on any
Debentures in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Debentures may
be listed, and upon such notice as may be required by such exchange
if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution or one or more
indentures supplemental hereto establishing the terms of any series of
Debentures pursuant to Section 2.01 hereof, the term "regular record date"
as used in this Section with respect to a series of Debentures with respect
to any Interest Payment Date for that series shall mean either the 15th day
of the month immediately preceding the month in which an Interest Payment
Date established for that series pursuant to Section 2.01 hereof shall
occur, if such Interest Payment Date is the first day of a month, or the
last day of the month immediately preceding the month in which an Interest
Payment Date established for such series pursuant to Section 2.01 hereof
shall occur, if such Interest Payment Date is the 15th day of a month,
whether or not such date is a Business Day.
Subject to the foregoing provisions of this Section, each Debenture of
a series delivered under this Indenture upon transfer of or in exchange for
or in lieu of any other Debenture of such series shall carry the rights to
interest accrued and unpaid, and to accrue, that were carried by such other
Debenture.
SECTION 2.04. The Debentures shall, subject to the provisions of
Section 2.06, be printed on steel engraved borders or fully or partially
engraved, or legibly typed, as the proper officers of the Company may
determine, and shall be signed on behalf of the Company by its President or
one of its Vice Presidents, under its corporate seal attested by its
Secretary or one of its Assistant Secretaries. The signature of the
President or a Vice President and/or the signature of the Secretary or an
Assistant Secretary in attestation of the corporate seal, upon the
Debentures, may be in the form of a facsimile signature of a present or any
future President or Vice President and of a present or any future Secretary
or Assistant Secretary and may be imprinted or otherwise reproduced on the
Debentures and for that purpose the Company may use the facsimile signature
of any person who shall have been a President or Vice President, or of any
person who shall have been a Secretary or Assistant Secretary,
notwithstanding the fact that at the time the Debentures shall be
authenticated and delivered or disposed of that person shall have ceased to
be the President or a Vice President, or the Secretary or an Assistant
Secretary, of the Company, as the case may be. The seal of the Company may
be in the form of a facsimile of the seal of the Company and may be
impressed, affixed, imprinted or otherwise reproduced on the Debentures.
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Only such Debentures as shall bear thereon a Certificate of
Authentication substantially in the form established for such Debentures,
executed manually by an authorized signatory of the Trustee, or by any
Authenticating Agent with respect to such Debentures, shall be entitled to
the benefits of this Indenture or be valid or obligatory for any purpose.
Such certificate executed by the Trustee, or by any Authenticating Agent
appointed by the Trustee with respect to such Debentures, upon any
Debenture executed by the Company shall be conclusive evidence that the
Debenture so authenticated has been duly authenticated and delivered
hereunder and that the holder is entitled to the benefits of this
Indenture.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debentures of any series executed
by the Company to the Trustee for authentication, together with a written
order of the Company for the authentication and delivery of such
Debentures, signed by its President or any Vice President and its Treasurer
or any Assistant Treasurer, and the Trustee in accordance with such written
order shall authenticate and deliver such Debentures.
In authenticating such Debentures and accepting the additional
responsibilities under this Indenture in relation to such Debentures, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall
be fully protected in relying upon, (i) an Opinion of Counsel and (ii) an
Officers' Certificate, each stating that the form and terms thereof have
been established in conformity with the provisions of this Indenture. Each
Opinion of Counsel and Officers' Certificate delivered pursuant to this
Section 2.04 shall include all statements prescribed by Section 13.05(b)
hereof.
The Trustee shall not be required to authenticate such Debentures if
the issue of such Debentures pursuant to this Indenture will, in the good
faith judgment of the Trustee, affect the Trustee's own rights, duties or
immunities under the Debentures and this Indenture or otherwise in a manner
that is not reasonably acceptable to the Trustee.
SECTION 2.05. (a) Debentures of any series may be exchanged upon
presentation thereof at the office or agency of the Company designated for
such purpose in the Borough of Manhattan, the City and State of New York,
for other Debentures of such series of authorized denominations, and for a
like aggregate principal amount, upon payment of a sum sufficient to cover
any tax or other governmental charge in relation thereto, all as provided
in this Section. In respect of any Debentures so surrendered for exchange,
the Company shall execute, the Trustee shall authenticate and such office
or agency shall deliver in exchange therefor the Debenture or Debentures of
the same series which the Debentureholder making the exchange shall be
entitled to receive, bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its office or
agency designated for such purpose in the Borough of Manhattan, the City
and State of New York, or such other location designated by the Company, a
register or registers (herein referred to as the "Debenture Register") in
which, subject to such reasonable regulations as it may prescribe, the
Company shall register the Debentures and the transfers of Debentures as in
this Article provided and which at all reasonable times shall be open for
inspection by the Trustee. The registrar for the purpose of registering
Debentures and transfer of Debentures as herein provided shall be appointed
as authorized by Board Resolution (the "Debenture Registrar").
Upon surrender for transfer of any Debenture at the office or agency
of the Company designated for such purpose in the Borough of Manhattan, the
City and State of New York, the Company shall execute, the Trustee shall
authenticate and such office or agency shall deliver in the name of the
transferee or transferees a new Debenture or Debentures of the same series
as the Debenture presented for a like aggregate principal amount.
All Debentures presented or surrendered for exchange or registration
of transfer, as provided in this Section, shall be accompanied (if so
required by the Company or the Debenture Registrar) by a written instrument
or instruments of transfer, in form satisfactory to the Company and the
Debenture Registrar, duly executed by the registered holder or by his duly
authorized attorney in writing.
(c) Except as provided in the first paragraph of Section 2.07, no
service charge shall be made for any exchange or registration of transfer
of Debentures, or issue of new Debentures in case of partial redemption of
any series, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge in relation thereto, other than
exchanges pursuant to Section 2.06, the second paragraph of Section 3.03
and Section 9.04 not involving any transfer.
(d) The Company shall neither be required (i) to issue, exchange or
register the transfer of any Debentures of any series during a period
beginning at the opening of business 15 days before the day of selection
for redemption of Debentures of that series and ending at the close of
business on the earliest date on which the relevant notice of redemption is
deemed to have been given to all holders of Debentures of that series to be
redeemed , nor (ii) to register the transfer of or exchange any Debentures
of any series or portions thereof called
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for redemption. The provisions of this Section 2.05 are, with respect to
any Global Debenture, subject to Section 2.11 hereof.
SECTION 2.06. Pending the preparation of definitive Debentures of any
series, the Company may execute, and the Trustee shall authenticate and
deliver, temporary Debentures (printed, lithographed or typewritten) of any
authorized denomination, and substantially in the form of the definitive
Debentures in lieu of which they are issued, but with such omissions,
insertions and variations as may be appropriate for temporary Debentures,
all as may be determined by the Company. Every temporary Debenture of any
series shall be executed by the Company and be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Debentures of that series in accordance with
the terms of Section 2.04 hereof. Without unnecessary delay the Company
will execute and will furnish definitive Debentures of such series and
thereupon any or all temporary Debentures of that series may be surrendered
in exchange therefor (without charge to the holders), at the office or
agency of the Company designated for the purpose in the Borough of
Manhattan, the City and State of New York, and the Trustee shall
authenticate and such office or agency shall deliver in exchange for such
temporary Debentures an equal aggregate principal amount of definitive
Debentures of that series, unless the Company advises the Trustee to the
effect that definitive Debentures need not be executed and furnished until
further notice from the Company. Until so exchanged, the temporary
Debentures of that series shall be entitled to the same benefits under this
Indenture as definitive Debentures of that series authenticated and
delivered hereunder.
SECTION 2.07. In case any temporary or definitive Debenture shall
become mutilated or be destroyed, lost or stolen, the Company (subject to
the next succeeding sentence) shall execute, and upon its request the
Trustee (subject as aforesaid) shall authenticate and deliver, a new
Debenture of the same series bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Debenture, or
in lieu of and in substitution for the Debenture so destroyed, lost or
stolen. In every case the applicant for a substituted Debenture shall
furnish to the Company and to the Trustee such security or indemnity as may
be required by them to save each of them harmless and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company
and to the Trustee evidence to their satisfaction of the destruction, loss
or theft of the applicant's Debenture and of the ownership thereof. The
Trustee may authenticate any such substituted Debenture and deliver the
same upon the written order of the Company. Upon the issuance of any
substituted Debenture, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith. In case any Debenture which
has matured or is about to mature or has been called for redemption shall
become mutilated or be destroyed, lost or stolen, the Company may, instead
of issuing a substitute Debenture, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated Debenture) if
the applicant for such payment shall furnish to the Company and to the
Trustee such security or indemnity as they may require to save them
harmless and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction, loss or
theft of such Debenture and of the ownership thereof.
Every Debenture issued pursuant to the provisions of this Section in
substitution for any Debenture which is mutilated, destroyed, lost or
stolen shall constitute an additional contractual obligation of the
Company, whether or not the mutilated, destroyed, lost or stolen Debenture
shall be found at any time, or be enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Debentures of the same series duly issued hereunder.
All Debentures shall be held and owned upon the express condition that the
foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debentures, and shall
preclude (to the extent lawful) any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 2.08. All Debentures surrendered for the purpose of payment,
redemption, exchange or registration of transfer shall, if surrendered to
the Company or any paying agent, be delivered to the Trustee for
cancellation, or, if surrendered to the Trustee, shall be canceled by it,
and no Debentures shall be issued in lieu thereof except as expressly
required or permitted by any of the provisions of this Indenture. On
request of the Company, the Trustee shall deliver to the Company canceled
Debentures held by the Trustee. In the absence of such request the Trustee
may dispose of canceled Debentures in accordance with its standard
procedures. If the Company shall otherwise acquire any of the Debentures,
however, such acquisition shall not operate as a redemption or satisfaction
of the indebtedness represented by such Debentures unless and until the
same are delivered to the Trustee for cancellation.
SECTION 2.09. Nothing in this Indenture or in the Debentures, express
or implied, shall give or be construed to give to any person, firm or
corporation, other than the parties hereto and the holders of the
Debentures, any legal or equitable right, remedy or claim under or in
respect of this Indenture, or under any covenant, condition or provision
herein contained; all such covenants, conditions and provisions being for
the sole benefit of the parties hereto and of the holders of the
Debentures.
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SECTION 2.10. So long as any of the Debentures of any series remain
outstanding there may be an Authenticating Agent for any or all such series
of Debentures which the Trustee shall have the right to appoint. Said
Authenticating Agent shall be authorized to act on behalf of the Trustee to
authenticate Debentures of such series issued upon exchange, transfer or
partial redemption thereof, and Debentures so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
All references in this Indenture to the authentication of Debentures of any
series by the Trustee shall be deemed to include authentication by an
Authenticating Agent for such series except for authentication upon
original issuance or pursuant to Section 2.07 hereof. Each Authenticating
Agent shall be acceptable to the Company and shall be a corporation which
has a combined capital and surplus, as most recently reported or determined
by it, of $50 million, and which is otherwise authorized under such laws to
conduct a trust business and is subject to supervision or examination by
federal or state authorities. If at any time any Authenticating Agent shall
cease to be eligible in accordance with these provisions, it shall resign
immediately.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at
any time (and upon request by the Company shall) terminate the agency of
any Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may
appoint an eligible successor Authenticating Agent acceptable to the
Company. Any successor Authenticating Agent, upon acceptance of its
appointment hereunder, shall become vested with all the rights, powers and
duties of its predecessor hereunder as if originally named as an
Authenticating Agent pursuant hereto.
SECTION 2.11. (a) If the Company shall establish pursuant to Section
2.01 that the Debentures of a particular series are to be issued as a
Global Debenture, then the Company shall execute and the Trustee shall, in
accordance with Section 2.04, authenticate and deliver, a Global Debenture
which (i) shall represent, and shall be denominated in an amount equal to
the aggregate principal amount of, all of the Outstanding Debentures of
that series, (ii) shall be registered in the name of the Depository or its
nominee, (iii) shall be delivered by the Trustee to the Depository or
pursuant to the Depository's instruction and (iv) shall bear a legend
substantially to the following effect: "Except as otherwise provided in
Section 2.11 of the Indenture, this Debenture may be transferred, in whole
but not in part, only to another nominee of the Depository or to a
successor Depository or to a nominee of such successor Depository."
(b) Notwithstanding the provisions of Section 2.05 and except as set
forth in Section 2.11(c) or (d), the Global Debenture of a series may be
transferred, in whole but not in part and in the manner provided in Section
2.05, only to another nominee of the Depository for that series, a
successor Depository for that series selected or approved by the Company or
a nominee of that successor Depository.
(c) (i) An interest in any Global Debenture shall be exchangeable at
the option of the beneficial owner of such interest in such
Global Debenture for a definitive Debenture or Debentures
registered in the name of any holder other than the Depository or
its nominee at any time following issuance of such Global
Debenture.
(ii) A beneficial owner of an interest in any Global Debenture
desiring to exchange such beneficial interest for a definitive
Debenture or Debentures shall instruct the Depository, through
the Depository's direct or indirect participants or otherwise, to
request such exchange on such beneficial owner's behalf and to
provide a written order containing registration instructions to
the Trustee. Upon receipt by the Trustee of electronic or written
instructions from the Depository on behalf of such beneficial
owner, the Trustee shall cause, in accordance with the standing
instructions and procedures existing between the Trustee and the
Depository, the aggregate principal amount of such Global
Debenture to be reduced by the principal amount of such
beneficial interest so exchanged and shall appropriately reflect
such reduction of the aggregate principal amount of this Global
Debenture as described in paragraph (iii) of this Section
2.11(c). Following such reduction, the Trustee shall authenticate
and deliver to such beneficial owner of the transferee, as the
case may be, a definitive Debenture or Debentures previously
executed by the Company as described in Section 2.05(a) and
registered in such names and authorized denominations as the
Depository, pursuant to such instructions of the beneficial
owner, shall instruct the Trustee.
(iii) Upon any exchange of a portion of any Global Debenture for
a definitive Debenture or Debentures, the Debenture Registrar
shall reflect the reduction of the principal amount of such
Global Debenture by the principal amount of such beneficial
interest so exchanged on the Debenture Register. Until exchanged
in full for definitive Debentures, such Global Debenture shall in
all respects be entitled to the same benefits under the Indenture
as the definitive Debentures authenticated and delivered
hereunder.
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(d) (i) If and so long as the Debentures of any series are issued as
a Global Debenture, any definitive Debenture or Debentures of
such series shall be exchangeable at the option of the registered
holder thereof for a beneficial interest in such Global Debenture
at any time following the exchange of such Global Debenture for
such definitive Debenture or Debentures pursuant to Section
2.11(c).
(ii) A registered holder of a definitive Debenture or Debentures
desiring to exchange such definitive Debenture or Debentures for
a beneficial interest in such Global Debenture shall instruct the
Depository, through the Depository's direct or indirect
participants or otherwise, to request such exchange on such
registered holder's behalf and to provide a written order
containing registration instructions to the Trustee. Upon receipt
by the Trustee of electronic or written instructions from the
Depository, and upon presentation to the Trustee of such
definitive Debenture or Debentures, the Trustee shall cause, in
accordance with the standing instructions and procedures existing
between the Trustee and the Depository, the aggregate principal
amount of such Global Debenture to be increased by the principal
amount of such definitive Debenture or Debentures so exchanged
and shall appropriately reflect such increase of the aggregate
principal amount of the Global Debenture as described in
paragraph (iii) of this Section 2.11(d). (iii) Upon any exchange
of a definitive Debenture or Debentures for a beneficial interest
in such Global Debenture, the Debenture Registrar shall reflect
the increase of the principal amount of such Global Debenture by
the principal amount of such definitive Debenture or Debentures
so exchanged on the Debenture Register.
(e) If at any time the Depository for a series of Debentures notifies
the Company that it is unwilling or unable to continue as Depository for
that series or if at any time the Depository for that series shall no
longer be registered or in good standing under the Exchange Act or other
applicable statute or regulation and a successor Depository for that series
is not appointed by the Company within 90 days after the Company receives
such notice or becomes aware of such condition, as the case may be, this
Section 2.11 shall no longer apply to the Debentures of that series and the
Company will execute and, subject to Section 2.05, the Trustee will
authenticate and deliver Debentures of that series in definitive registered
form without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Debenture of
that series in exchange for such Global Debenture. In addition, the Company
may at any time determine that the Debentures of any series shall no longer
be represented by a Global Debenture and that the provisions of this
Section 2.11 shall no longer apply to the Debentures of that series. In
that event the Company will execute and, subject to Section 2.05, the
Trustee, upon receipt of an Officers' Certificate evidencing such
determination by the Company, will authenticate and deliver Debentures of
that series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Debenture of such series in exchange for such Global
Debenture. Upon the exchange of the Global Debenture for such Debentures in
definitive registered form without coupons, in authorized denominations,
the Global Debenture shall be canceled by the Trustee. Such Debentures in
definitive registered form issued in exchange for the Global Debenture
pursuant to this Section 2.11(c) shall be registered in such names and in
such authorized denominations as the Depository, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Debenture Registrar. The Trustee shall deliver such Debentures to the
Depository for delivery to the persons in whose names such Debentures are
so registered.
ARTICLE THREE
Redemption of Debentures and Sinking Fund Provisions
SECTION 3.01. The Company may redeem the Debentures of any series
issued hereunder on and after the dates and in accordance with the terms
established for that series pursuant to Section 2.01 hereof.
SECTION 3.02. (a) In case the Company shall desire to exercise such
right to redeem all or, as the case may be, a portion of the Debentures of
any series in accordance with the right reserved so to do, it shall give
notice of such redemption to holders of the Debentures of the series to be
redeemed by mailing, first class postage prepaid, a notice of such
redemption not less than 30 days and not more than 60 days before the date
fixed for redemption of that series to such holders at their last addresses
as they shall appear upon the Debenture Register. Any notice which is
mailed in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the registered holder receives the notice.
In any case, failure duly to give such notice to the holder of any
Debenture of any series designated for redemption in whole or in part, or
any defect in the notice, shall not affect the validity of the proceedings
for the redemption of any other Debentures of that series or any other
series. In the case of any redemption of Debentures prior to the expiration
of any restriction on such redemption provided in the terms of such
Debentures or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with any such
restriction.
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Each such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Debentures of that series are
to be redeemed, and shall state that payment of the redemption price of the
Debentures to be redeemed will be made at the office or agency of the
Company in the Borough of Manhattan, the City and State of New York, upon
presentation and surrender of such Debentures, that interest accrued to the
date fixed for redemption will be paid as specified in that notice, that
from and after that date interest will cease to accrue, and that the
redemption is for a sinking fund, if such is the case. If less than all the
Debentures of a series are to be redeemed, the notice to the holders of
Debentures of that series to be redeemed shall specify the particular
Debentures to be so redeemed. In case any Debenture is to be redeemed in
part only, the notice which relates to such Debenture shall state the
portion of the principal amount thereof to be redeemed, and shall state
that on and after the redemption date, upon surrender of such Debenture, a
new Debenture or Debentures of that series in principal amount equal to the
unredeemed portion thereof will be issued.
(b) The Company shall give the Trustee at least 45 days' advance
notice of the date fixed for redemption (unless shorter notice shall be
required by the Trustee) as to the aggregate principal amount of Debentures
of the series to be redeemed, and thereupon the Trustee shall select, by
lot or in such other manner as it shall deem appropriate and fair in its
discretion and which may provide for the selection of a portion or portions
(equal to $25 or any integral multiple thereof) of the principal amount of
such Debentures of a denomination larger than $25, the Debentures to be
redeemed and shall thereafter promptly notify the Company in writing of the
numbers of the Debentures to be redeemed.
The Company may, if and whenever it shall so elect, by delivery of
instructions signed on its behalf by its President or any Vice President,
instruct the Trustee or any paying agent to call all or any part of the
Debentures of a particular series for redemption and to give notice of
redemption in the manner set forth in this Section, such notice to be in
the name of the Company or its own name as the Trustee or such paying agent
may deem advisable. In any case in which notice of redemption is to be
given by the Trustee or any such paying agent, the Company shall deliver or
cause to be delivered to, or permit to remain with, the Trustee or such
paying agent, as the case may be, such Debenture Register, transfer books
or other records, or suitable copies or extracts therefrom, sufficient to
enable the Trustee or such paying agent to give any notice by mail that may
be required under the provisions of this Section.
SECTION 3.03. (a) If the giving of notice of redemption shall have
been completed as above provided, the Debentures or portions of Debentures
of the series to be redeemed specified in such notice shall become due and
payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued to the date
fixed for redemption, and interest on such Debentures or portions of
Debentures shall cease to accrue on and after the date fixed for
redemption, unless the Company shall default in the payment of such
redemption price and accrued interest with respect to any such Debenture or
portion thereof. On presentation and surrender of such Debentures on or
after the date fixed for redemption at the place of payment specified in
the notice, such Debentures shall be paid and redeemed at the applicable
redemption price for such series, together with interest accrued thereon to
the date fixed for redemption (but if the date fixed for redemption is an
interest payment date, the interest installment payable on such date shall
be payable to the registered holder at the close of business on the
applicable record date pursuant to Section 2.03).
(b) Upon presentation of any Debenture of such series which is to be
redeemed in part only, the Company shall execute, the Trustee shall
authenticate and the office or agency where the Debenture is presented
shall deliver to the holder thereof, at the expense of the Company, a new
Debenture or Debentures of the same series, of authorized denominations in
principal amount equal to the unredeemed portion of the Debenture so
presented.
SECTION 3.04. The provisions of Sections 3.04, 3.05 and 3.06 shall
apply to any sinking fund for the retirement of Debentures of a series,
except as otherwise specified as contemplated by Section 2.01 for
Debentures of that series.
The minimum amount of any sinking fund payment provided for by the
terms of Debentures of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount
provided for by the terms of Debentures of any series is herein referred to
as an "optional sinking fund payment". If provided for by the terms of
Debentures of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 3.05. Each sinking fund
payment shall be applied to the redemption of Debentures of any series as
provided for by the terms of Debentures of that series.
SECTION 3.05. The Company (i) may deliver Outstanding Debentures of a
series (other than any previously called for redemption) and (ii) may apply
as a credit Debentures of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Debentures or through
the application of permitted optional sinking fund payments pursuant to the
terms of such Debentures, in each case in satisfaction
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of all or any part of any sinking fund payment with respect to the
Debentures of such series required to be made pursuant to the terms of such
Debentures as provided for by the terms of that series; provided that such
Debentures have not been previously so credited. Such Debentures shall be
received and credited for such purpose by the Trustee at the redemption
price specified in such Debentures for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 3.06. Not less than 45 days prior to each sinking fund payment
date for any series of Debentures, the Company will deliver to the Trustee
an Officers' Certificate specifying the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by delivering and
crediting Debentures of that series pursuant to Section 3.05 and the basis
for such credit and will, together with such Officers' Certificate, deliver
to the Trustee any Debentures to be so delivered. Not less than 30 days
before each such sinking fund payment date the Trustee shall select the
Debentures to be redeemed upon such sinking fund payment date in the manner
specified in Section 3.02 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner
provided in Section 3.02. Such notice having been duly given, the
redemption of such Debentures shall be made upon the terms and in the
manner stated in Section 3.03.
ARTICLE FOUR
Particular Covenants of the Company
The Company covenants and agrees for each series of the Debentures as
follows:
SECTION 4.01. The Company will duly and punctually pay or cause to be
paid the principal of (and premium, if any) and interest on the Debentures
of that series at the time and place and in the manner provided herein and
established with respect to such Debentures.
SECTION 4.02. So long as any series of the Debentures remains
outstanding, the Company agrees to maintain an office or agency in the
Borough of Manhattan, the City and State of New York (which, unless
changed, shall be a corporate trust office or agency of the Trustee), with
respect to each such series and at such other location or locations as may
be designated as provided in this Section 4.02, where (i) Debentures of
that series may be presented for payment, (ii) Debentures of that series
may be presented as hereinabove authorized for registration of transfer and
exchange and (iii) notices and demands to or upon the Company in respect of
the Debentures of that series and this Indenture may be given or served,
such designation to continue with respect to such office or agency until
the Company shall, by written notice signed by its President or a Vice
President and delivered to the Trustee, designate some other office or
agency for such purposes or any of them. If at any time the Company shall
fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, notices
and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to
receive all such presentations, notices and demands.
SECTION 4.03. (a) If the Company shall appoint one or more paying
agents, other than the Trustee, for all or any series of the Debentures,
the Company will cause each such paying agent to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section, that it will:
(1) hold all sums held by it as such agent for the payment of the
principal of (and premium, if any) or interest on the Debentures of
that series (whether such sums have been paid to it by the Company or
by any other obligor of such Debentures) in trust for the benefit of
the persons entitled thereto;
(2) give the Trustee notice of any failure by the Company (or by
any other obligor of such Debentures) to make any payment of the
principal of (and premium, if any) or interest on the Debentures of
that series when the same shall be due and payable;
(3) at any time during the continuance of any failure referred to
in the preceding paragraph (a)(2) above, upon the written request of
the Trustee, forthwith pay to the Trustee all sums so held in trust by
such paying agent; and
(4) perform all other duties of paying agent as set forth in this
Indenture.
(b) If the Company shall act as its own paying agent with respect to
any series of the Debentures, it will, on or before each due date of the
principal of (and premium, if any) or interest on Debentures of that
series, set aside, segregate and hold in trust for the benefit of the
persons entitled thereto a sum sufficient to pay such principal (and
premium, if any) or interest so becoming due on Debentures of that series
until such sums
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shall be paid to such persons or otherwise disposed of as herein provided
and will promptly notify the Trustee of such action, or any failure (by it
or any other obligor on such Debentures) to take such action. Whenever the
Company shall have one or more paying agents for any series of Debentures,
it will, prior to each due date of the principal of (and premium, if any)
or interest on any Debentures of that series, deposit with the paying agent
a sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the persons
entitled to such principal, premium or interest, and (unless such paying
agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
(c) Anything in this Section to the contrary notwithstanding, (i) the
agreement to hold sums in trust as provided in this Section is subject to
the provisions of Section 11.06 and (ii) the Company may at any time, for
the purpose of obtaining the satisfaction and discharge of this Indenture
or for any other purpose, pay, or direct any paying agent to pay, to the
Trustee all sums held in trust by the Company or such paying agent, such
sums to be held by the Trustee upon the same terms and conditions as those
upon which such sums were held by the Company or such paying agent; and,
upon such payment by any paying agent to the Trustee, such paying agent
shall be released from all further liability with respect to such sums.
SECTION 4.04. The Company, whenever necessary to avoid or fill a
vacancy in the office of Trustee, will appoint, in the manner provided in
Section 7.10, a Trustee, so that there shall at all times be a Trustee
hereunder.
SECTION 4.05. The Company will not, while any of the Debentures remain
outstanding, consolidate with, merge into, merge into itself or sell or
convey all or substantially all of its property to any other company,
unless the provisions of Article Ten hereof are complied with.
SECTION 4.06. If there shall have occurred any event that would, with
the giving of notice or the passage of time, or both, constitute an Event
of Default under the Indenture, or the Company shall have given notice of
its selection of an extended interest payment period as provided in the
Indenture and such period, or any extension thereof, shall be continuing,
the Company will not, until all defaulted interest on the Debentures and
all interest accrued on the Debentures during an extended interest payment
period and all principal and premium, if any, then due and payable on the
Debentures shall have been paid in full, (i) declare, set aside or pay any
dividend or distribution on any capital stock of the Company, except for
dividends or distributions in shares of its capital stock or in rights to
acquire shares of its capital stock, or (ii) repurchase, redeem or
otherwise acquire, or make any sinking fund payment for the purchase or
redemption of, any shares of its capital stock (except by conversion into
or exchange for shares of its capital stock and except for a redemption,
purchase or other acquisition of shares of its capital stock made for the
purpose of an employee incentive plan or benefit plan of the Company or any
of its subsidiaries and except for mandatory redemption or sinking fund
payments with respect to any series of preferred stock of the Company that
are subject to mandatory redemption or sinking fund requirements, provided
that the aggregate stated value of all such series outstanding at the time
of any such payment does not exceed five percent of the aggregate of (1)
the total principal amount of all bonds or other securities representing
secured indebtedness issued or assumed by the Company and then outstanding
and (2) the capital and surplus of the Company to be stated on the books of
account of the Company after giving effect to such payment); provided,
however, that any moneys deposited in any sinking fund and not in violation
of this provision may thereafter be applied to the purchase or redemption
of such preferred stock in accordance with the terms of such sinking fund
without regard to the restrictions contained in this Section. ARTICLE FIVE
Debentureholders' Lists and Reports by the Company and the Trustee
SECTION 5.01. The Company will furnish or cause to be furnished to the
Trustee (a) on a monthly basis on each regular record date (as defined in
Section 2.03) a list, in such form as the Trustee may reasonably require,
of the names and addresses of the holders of each series of Debentures as
of such regular record date; provided that the Company shall not be
obligated to furnish or cause to furnish such list at any time that the
list shall not differ in any respect from the most recent list furnished to
the Trustee by the Company and (b) at such other times as the Trustee may
request in writing within 30 days after the receipt by the Company of any
such request, a list of similar form and content as of a date not more than
15 days prior to the time such list is furnished; provided, however, no
such list need be furnished for any series for which the Trustee shall be
the Debenture Registrar.
SECTION 5.02. (a)The Trustee shall preserve, in as current a form as
is reasonably practicable, all information as to the names and addresses of
the holders of Debentures contained in the most recent list furnished to it
as provided in Section 5.01 and as to the names and addresses of holders of
Debentures received by the Trustee in its capacity as Debenture Registrar
(if acting in such capacity).
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(b) The Trustee may destroy any list furnished to it as provided in
Section 5.01 upon receipt of a new list so furnished.
(c) In case three or more holders of Debentures of a series
(hereinafter referred to as "applicants") apply in writing to the Trustee,
and furnish to the Trustee reasonable proof that each such applicant has
owned a Debenture for a period of at least six months preceding the date of
such application, and such application states that the applicants desire to
communicate with other holders of Debentures of that series or holders of
all Debentures with respect to their rights under this Indenture or under
such Debentures, and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee
shall, within five Business Days after the receipt of such application, at
its election, either:
(1) afford to such applicants access to the information preserved
at the time by the Trustee in accordance with the provisions of
Section 5.02(a); or
(2) inform such applicants as to the approximate number of
holders of Debentures of such series or of all Debentures, as the case
may be, whose names and addresses appear in the information preserved
at the time by the Trustee, in accordance with the provisions of
Section 5.02(a), and as to the approximate cost of mailing to such
Debentureholders the form of proxy or other communication, if any,
specified in such application.
(d) If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each holder of that series or of all Debentures, as the
case may be, whose name and address appears in the information preserved at
the time by the Trustee in accordance with the provisions of Section
5.02(a), a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days
after such tender, the Trustee shall mail to such applicants and file with
the Securities and Exchange Commission (the "Commission"), together with a
copy of the material to be mailed, a written statement to the effect that,
in the opinion of the Trustee, such mailing would be contrary to the best
interests of the holders of Debentures of that series or of all Debentures,
as the case may be, or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified
in the written statement so filed, shall enter an order refusing to sustain
any of such objections or if, after the entry of an order sustaining one or
more of such objections, the Commission shall find, after notice and
opportunity for hearing, that all the objections so sustained have been met
and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Debentureholders with reasonable promptness after
the entry of such order and the renewal of such tender; otherwise, the
Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.
(e) Each and every holder of the Debentures, by receiving and holding
the same, agrees with the Company and the Trustee that neither the Company
nor the Trustee nor any paying agent nor any Debenture Registrar shall be
held accountable by reason of the disclosure of any such information as to
the names and addresses of the holders of Debentures in accordance with the
provisions of Section 5.02(c), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under Section
5.02(c).
SECTION 5.03. (a)The Company covenants and agrees to file with the
Trustee, within 15 days after the Company is required to file the same with
the Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the
Company is not required to file information, documents or reports pursuant
to either of such sections, then to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Exchange Act, in respect of a security listed and
registered on a national securities exchange as may be prescribed from time
to time in such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from
time to time by the Commission, such additional information, documents and
reports with respect to compliance by the Company with the conditions and
covenants provided for in this Indenture as may be required from time to
time by such rules and regulations. Delivery of such reports, documents and
information to the Trustee under this subsection (b) and Section 5.03(a) is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of the covenants hereunder.
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(c) The Company covenants and agrees to transmit by mail, first-class
postage prepaid, or reputable overnight delivery service which provides for
evidence of receipt, to the Debentureholders, as their names and addresses
appear upon the Debenture Register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to Section 5.03(a) and (b) as
may be required by rules and regulations prescribed from time to time by
the Commission.
(d) The Company covenants and agrees to furnish to the Trustee, on or
before May 15 in each calendar year in which any of the Debentures are
outstanding, or on or before such other day in each calendar year as the
Company and the Trustee may from time to time agree upon, a Certificate as
to his or her knowledge of the Company's compliance with all conditions and
covenants under this Indenture. For purposes of this subsection (d), such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
(e) The Company covenants and agrees, during any calendar year in
which original issue discount has accrued on Outstanding Debentures, to
file with the Trustee promptly at the end of each such calendar year a
written notice specifying the amount of original issue discount (including
daily rates and accrual periods) accrued on Outstanding Debentures as of
the end of such year.
SECTION 5.04. (a)On or before July 15 in each year in which any of the
Debentures are outstanding, the Trustee shall transmit by mail, first-class
postage prepaid, to the Debentureholders, as their names and addresses
appear upon the Debenture Register, a brief report dated as of the
preceding May 15, with respect to any of the following events which may
have occurred within the previous 12 months (but if no such event has
occurred within such period no report need be transmitted):
(1) any change to its eligibility under Section 7.09, and its
qualifications under Section 7.08;
(2) the creation of or any material change to a relationship
specified in paragraphs (1) through (10) of Section 7.08(c);
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof)
made by the Trustee (as such) which remain unpaid on the date of such
report, and for the reimbursement of which it claims or may claim a
lien or charge, prior to that of the Debentures, on any property or
funds held or collected by it as Trustee if such advances so remaining
unpaid aggregate more than 1/2 of 1% of the principal amount of the
Debentures outstanding on the date of such report;
(4) any change to the amount, interest rate and maturity date of
all other indebtedness owing by the Company, or by any other obligor
on the Debentures, to the Trustee in its individual capacity, on the
date of such report, with a brief description of any property held as
collateral security therefor, except any indebtedness based upon a
creditor relationship arising in any manner described in paragraphs
(2), (3), (4) or (6) of 7.13(b);
(5) any change to the property and funds, if any, physically in
the possession of the Trustee as such on the date of such report;
(6) any release, or release and substitution, of property subject
to the lien, if any, of this Indenture (and the consideration thereof,
if any) which it has not previously reported;
(7) any additional issue of Debentures which the Trustee has not
previously reported; and
(8) any action taken by the Trustee in the performance of its
duties under this Indenture which it has not previously reported and
which in its opinion materially affects the Debentures or the
Debentures of any series, except any action in respect of a default,
notice of which has been or is to be withheld by it in accordance with
the provisions of Section 6.07.
(b) The Trustee shall transmit by mail, first-class postage prepaid,
to the Debentureholders, as their names and addresses appear upon the
Debenture Register, a brief report with respect to the character and amount
of any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee as such since the date
of the last report transmitted pursuant to the provisions of subsection (a)
of this Section (or if no such report has yet been so transmitted, since
the date of execution of this Indenture), for the reimbursement of which it
claims or may claim a lien or charge prior to that of the Debentures of any
series on property or funds held or collected by it as Trustee, and which
it has not previously reported pursuant to this
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subsection if such advances remaining unpaid at any time aggregate more
than 10% of the principal amount of Debentures of such series outstanding
at such time, such report to be transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such transmission
to Debentureholders, be filed by the Trustee with the Company, with each
stock exchange upon which any Debentures are listed (if so listed) and also
with the Commission. The Company agrees to notify the Trustee when any
Debentures become listed on any stock exchange.
ARTICLE SIX
Remedies of the Trustee and Debentureholders
on Event of Default
SECTION 6.01. (a)Whenever used herein with respect to Debentures of a
particular series, "Event of Default" means any one or more of the
following events which has occurred and is continuing:
(1) default in the payment of any installment of interest upon
any of the Debentures of that series, as and when the same shall
become due and payable, and continuance of such default for a period
of 10 days;
(2) default in the payment of the principal of (or premium, if
any, on) any of the Debentures of that series as and when the same
shall become due and payable, whether at maturity, upon redemption, by
declaration or otherwise, or in any payment required by any sinking or
analogous fund established with respect to that series;
(3) failure on the part of the Company duly to observe or perform
any other of the covenants or agreements on the part of the Company
with respect to that series contained in such Debentures or otherwise
established with respect to that series of Debentures pursuant to
Section 2.01 hereof or contained in this Indenture (other than a
covenant or agreement which has been expressly included in this
Indenture solely for the benefit of one or more series of Debentures
other than such series) for a period of 90 days after the date on
which written notice of such failure, requiring the same to be
remedied and stating that such notice is a "Notice of Default"
hereunder, shall have been given to the Company by the Trustee, by
registered or certified mail, or to the Company and the Trustee by the
holders of at least 25% in principal amount of the Debentures of that
series at the time outstanding;
(4) a decree or order by a court having jurisdiction in the
premises shall have been entered adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking
liquidation or reorganization of the Company under the Federal
Bankruptcy Code or any other similar applicable federal or state law,
and such decree or order shall have continued unvacated and unstayed
for a period of 90 days; an involuntary case shall be commenced under
such Code in respect of the Company and shall continue undismissed for
a period of 90 days or an order for relief in such case shall have
been entered; or a decree or order of a court having jurisdiction in
the premises shall have been entered for the appointment on the ground
of insolvency or bankruptcy of a receiver, custodian, liquidator,
trustee or assignee in bankruptcy or insolvency of the Company or of
its property, or for the winding up or liquidation of its affairs, and
such decree or order shall have remained in force unvacated and
unstayed for a period of 90 days; or
(5) the Company shall institute proceedings to be adjudicated a
voluntary bankrupt, shall consent to the filing of a bankruptcy
proceeding against it, shall file a petition or answer or consent
seeking liquidation or reorganization under the Federal Bankruptcy
Code or other similar applicable federal or state law, shall consent
to the filing of any such petition or shall consent to the appointment
on the ground of insolvency or bankruptcy of a receiver or custodian
or liquidator or trustee or assignee in bankruptcy or insolvency of it
or of its property, or shall make an assignment for the benefit of
creditors.
(b) In each and every such case, the Company shall file with the
Trustee written notice of the occurrence of any Event of Default within
five Business Days of the Company's becoming aware of any such Event of
Default, and unless the principal of all the Debentures of that series
shall have already become due and payable, either the Trustee or the
holders of not less than 25% in aggregate principal amount of the
Debentures of that series then outstanding hereunder, by notice in writing
to the Company (and to the Trustee if given by such Debentureholders), may
declare the principal of all the Debentures of that series to be due and
payable immediately, and upon any such declaration the same shall become
and shall be immediately due and payable, anything contained in this
Indenture or in the Debentures of that series or established with respect
to that series pursuant to Section 2.01 hereof to the contrary
notwithstanding.
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(c) The provisions of subsection (b) of this Section, however, are
subject to the condition that if, at any time after the principal of the
Debentures of that series shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due shall have
been obtained or entered as hereinafter provided, the Company shall pay or
shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Debentures of that series and the
principal of (and premium, if any, on) any and all Debentures of that
series which shall have become due otherwise than by acceleration (with
interest upon such principal and premium, if any, and, to the extent that
such payment is enforceable under applicable law, upon overdue installments
of interest, at the rate per annum expressed in the Debentures of that
series to the date of such payment or deposit) and the amount payable to
the Trustee under Section 7.06, and any and all defaults under the
Indenture, other than the nonpayment of principal on Debentures of that
series which shall not have become due by their terms, shall have been
remedied or waived as provided in Section 6.06, then and in every such case
the holders of a majority in aggregate principal amount of the Debentures
of that series then outstanding, by written notice to the Company and to
the Trustee, may rescind and annul such declaration and its consequences;
but no such rescission and annulment shall extend to or shall affect any
subsequent default, or shall impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any right with
respect to Debentures of that series under this Indenture and such
proceedings shall have been discontinued or abandoned because of such
rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the
Company and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Company and the Trustee shall continue as though no such proceedings had
been taken.
SECTION 6.02. (a)The Company covenants that (1) in case default shall
be made in the payment of any installment of interest on any of the
Debentures of a series, or and such default shall have continued for a
period of 10 Business Days, or (2) in case default shall be made in the
payment of the principal of (or premium, if any, on) any of the Debentures
of a series when the same shall have become due and payable, whether upon
maturity of the Debentures of a series or upon redemption or upon
declaration or otherwise, or in any payment required by any sinking or
analogous fund established with respect to that series as and when the same
shall have become due and payable, then, upon demand of the Trustee, the
Company will pay to the Trustee, for the benefit of the holders of the
Debentures of that series, the whole amount that then shall have become due
and payable on all such Debentures for principal (and premium, if any) or
interest, or both, as the case may be, with interest upon the overdue
principal (and premium, if any) and (to the extent that payment of such
interest is enforceable under applicable law) upon overdue installments of
interest at the rate per annum expressed in the Debentures of that series;
and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, and the amount payable to the
Trustee under Section 7.06.
(b) In case the Company shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceeding to judgment or
final decree, and may enforce any such judgment or final decree against the
Company or other obligor upon the Debentures of that series and collect in
the manner provided by law out of the property of the Company or other
obligor upon the Debentures of that series wherever situated the moneys
adjudged or decreed to be payable.
(c) In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, readjustment, arrangement, composition or other judicial
proceedings affecting the Company, any other obligor on such Debentures or
the creditors or property of either, the Trustee shall have power to
intervene in such proceedings and take any action therein that may be
permitted by the court and shall (except as may be otherwise provided by
law) be entitled to file such proofs of claim and other papers and
documents as may be necessary or advisable in order to have the claims of
the Trustee and of the holders of Debentures of such series allowed for the
entire amount due and payable by the Company or such other obligor under
the Indenture at the date of institution of such proceedings and for any
additional amount which may become due and payable by the Company or such
other obligor after such date, and to collect and receive any moneys or
other property payable or deliverable on any such claim, and to distribute
the same after the deduction of the amount payable to the Trustee under
Section 7.06; and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of the holders of Debentures of
that series to make such payments to the Trustee, and, in the event that
the Trustee shall consent to the making of such payments directly to such
Debentureholders, to pay to the Trustee any amount due it under Section
7.06.
(d) All rights of action and of asserting claims under this Indenture,
or under any of the terms established with respect to Debentures of that
series, may be enforced by the Trustee without the possession of any of
such Debentures, or the production thereof at any trial or other proceeding
relative thereto, and any such suit or proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and
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any recovery of judgment shall, after provision for payment to the Trustee
of any amounts due under Section 7.06, be for the ratable benefit of the
holders of the Debentures of that series.
In case of an Event of Default hereunder, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any of such rights, either at
law, in equity in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in the Indenture or in
aid of the exercise of any power granted in this Indenture, or to enforce
any other legal or equitable right vested in the Trustee by this Indenture
or by law.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize, consent to, accept or adopt on behalf of any Debentureholder any
plan of reorganization, arrangement, adjustment or composition affecting
the Debentures of that series or the rights of any holder thereof or to
authorize the Trustee to vote in respect of the claim of any
Debentureholder in any such proceeding.
SECTION 6.03. Any moneys collected by the Trustee pursuant to Section
6.02 with respect to a particular series of Debentures shall be applied in
the order following, at the date or dates fixed by the Trustee and, in case
of the distribution of such moneys on account of principal (or premium, if
any) or interest, upon presentation of the several Debentures of that
series, and stamping thereon the payment, if only partially paid, and upon
surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection and of
all amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of the amounts then due and unpaid upon
Debentures of that series for principal (and premium, if any) and
interest, in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Debentures for
principal (and premium, if any) and interest, respectively; and
THIRD: To the Company.
SECTION 6.04. No holder of any Debenture of any series shall have any
right by virtue or by availing of any provision of this Indenture to
institute any suit, action or proceeding in equity or at law upon or under
or with respect to this Indenture or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless such holder previously
shall have given to the Trustee written notice of an Event of Default and
of the continuance thereof with respect to Debentures of that series
specifying such Event of Default, as hereinbefore provided, and unless also
the holders of not less than 25% in aggregate principal amount of the
Debentures of such series then outstanding shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own
name as trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity, shall
have failed to institute any such action, suit or proceeding; it being
understood and intended, and being expressly covenanted by the taker and
holder of every Debenture of that series with every other such taker and
holder and the Trustee, that no one or more holders of Debentures of that
series shall have any right in any manner whatsoever by virtue or by
availing of any provision of this Indenture to affect, disturb or prejudice
the rights of the holders of any other of such Debentures, or to obtain or
seek to obtain priority over or preference to any other such holder, or to
enforce any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all holders of
Debentures of that series. For the protection and enforcement of the
provisions of this Section, each and every Debentureholder and the Trustee
shall be entitled to such relief as can be given either at law or in
equity.
Notwithstanding any other provisions of this Indenture, however, the
right of any holder of any Debenture to receive payment of the principal of
(and premium, if any) and interest on such Debenture, as therein provided,
on or after the respective due dates expressed in such Debenture (or in the
case of redemption, on the redemption date), or to institute suit for the
enforcement of any such payment on or after such respective dates or
redemption date, shall not be impaired or affected without the consent of
such holder.
SECTION 6.05. (a)All powers and remedies given by this Article to the
Trustee or to the Debentureholders shall, to the extent permitted by law,
be deemed cumulative and not exclusive of any others thereof or of any
other powers and remedies available to the Trustee or the holders of the
Debentures, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture or otherwise established with respect to such Debentures.
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(b) No delay or omission of the Trustee or of any holder of any of the
Debentures to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such right
or power, or shall be construed as a waiver of any such default or an
acquiescence therein; and, subject to the provisions of Section 6.04, every
power and remedy given by this Article or by law to the Trustee or to the
Debentureholders may be exercised from time to time, and as often as shall
be deemed expedient, by the Trustee or by the Debentureholders.
SECTION 6.06. The holders of a majority in aggregate principal amount
of the Debentures of any series at the time outstanding, determined in
accordance with Section 8.04, shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee with
respect to that series; provided, however, that such direction shall not be
in conflict with any rule of law or with this Indenture or unduly
prejudicial to the rights of holders of Debentures of any other series at
the time outstanding determined in accordance with Section 8.04 not parties
thereto. Subject to the provisions of Section 7.01, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Officers of the Trustee, determine
that the proceeding so directed might involve the Trustee in personal
liability. The holders of a majority in aggregate principal amount of the
Debentures of all series at the time outstanding affected thereby,
determined in accordance with Section 8.04, may on behalf of the holders of
all of the Debentures of that series waive any past default in the
performance of any of the covenants contained herein or established
pursuant to Section 2.01 with respect to that series and its consequences,
except a default in the payment of the principal of, or premium, if any, or
interest on, any of the Debentures of that series as and when the same
shall become due by the terms of such Debentures or a call for redemption
of Debentures of that series, which default may be waived by the unanimous
consent of the holders affected. Upon any such waiver, the default covered
thereby shall be deemed to be cured for all purposes of this Indenture and
the Company, the Trustee and the holders of the Debentures of that series
shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 6.07. The Trustee shall, within 90 days after the occurrence
of a default with respect to a particular series, transmit by mail, first
class postage prepaid, to the holders of Debentures of that series, as
their names and addresses appear upon the Debenture Register, notice of all
defaults with respect to that series known to the Trustee, unless such
defaults shall have been cured or waived before the giving of such notice
(the term "defaults" for the purposes of this Section being hereby defined
to be the events specified in subsections (1), (2), (3), (4) and (5) of
Section 6.01(a), not including any grace periods provided for therein and
irrespective of the giving of notice provided for by subsection (3) of
Section 6.01(a)); provided, that, except in the case of default in the
payment of the principal of (or premium, if any) or interest on any of the
Debentures of that series or in the payment of any sinking fund installment
established with respect to that series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the
executive committee, or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of
such notice is in the interests of the holders of Debentures of that
series; provided further, that in the case of any default of the character
specified in Section 6.01(a)(3) with respect to Debentures of that series,
no such notice to the holders of the Debentures of that series shall be
given until at least 30 days after the occurrence thereof.
The Trustee shall not be deemed to have knowledge of any default,
except (i) a default under Section 6.01(a)(1) or (a)(2) as long as the
Trustee is acting as paying agent for such series of Debentures or (ii) any
default as to which the Trustee shall have received written notice or a
Responsible Officer charged with the administration of this Indenture shall
have actual knowledge or obtained written notice.
SECTION 6.08. All parties to this Indenture agree, and each holder of
any Debentures by his or her acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the provisions of
this Section shall not apply to any suit instituted by the Trustee, any
suit instituted by any Debentureholder, or group of Debentureholders,
holding more than 10% in aggregate principal amount of the outstanding
Debentures of any series, or any suit instituted by any Debentureholder for
the enforcement of the payment of the principal of (or premium, if any) or
interest on any Debenture of such series, on or after the respective due
dates expressed in such Debenture or established pursuant to this
Indenture.
ARTICLE SEVEN
Concerning the Trustee
SECTION 7.01. (a)The Trustee, prior to the occurrence of an Event of
Default with respect to Debentures of a series and after the curing of all
Events of Default with respect to Debentures of that series which
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may have occurred, shall undertake to perform with respect to Debentures of
that series such duties and only such duties as are specifically set forth
in this Indenture, and no implied covenants shall be read into this
Indenture against the Trustee. In case an Event of Default with respect to
Debentures of a series has occurred (which has not be cured or waived), the
Trustee shall exercise with respect to Debentures of that series such of
the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent individual would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that:
(1) prior to the occurrence of an Event of Default with respect
to Debentures of a series and after the curing and waiving of all such
Events of Default with respect to that series which may have occurred:
(i) the duties and obligations of the Trustee shall with
respect to Debentures of that series be determined solely by the
express provisions of this Indenture, and the Trustee shall not be
liable with respect to Debentures of that series except for the
performance of such duties and obligations as are specifically set
forth in this Indenture, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee,
the Trustee may with respect to Debentures of that series conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which
by any provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein);
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the holders of not less than a majority in principal
amount of the Debentures of any series at the time outstanding
relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee under this Indenture with respect to
the Debentures of that series; and
(4) none of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur
or risk personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Indenture or adequate indemnity against such risk is not reasonably
assured to it.
(c) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section 7.01.
SECTION 7.02. Except as otherwise provided in Section 7.01:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond, security or other paper or document believed by it to be genuine and
to have been signed or presented by the property party or parties;
(b) Any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by a Board Resolution or an
instrument signed in the name of the Company by the President or any Vice
President and by the Secretary or an Assistant Secretary or the Treasurer
or an Assistant Treasurer (unless other evidence in respect thereof is
specifically prescribed herein);
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(c) Whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) is entitled to receive and may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) The Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted hereunder in good faith and in reliance thereon;
(e) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Debentureholders, pursuant to the provisions of
this Indenture, unless such Debentureholders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; nothing herein
contained shall, however, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default with respect to a series of the
Debentures (which has not been cured or waived) to exercise with respect to
Debentures of that series such of the rights and powers vested in it by
this Indenture, and to use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs;
(f) If an Event of Default shall have occurred and be continuing, the
Trustee shall be under no obligation to follow any request, order or
direction of the Company if in the reasonable judgment of the Trustee the
following of such request, order or direction would not be in the best
interests of all the holders;
(g) The Trustee shall not be liable for any action taken or omitted to
be taken by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture;
(h) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond, security, or other papers or documents, unless requested in writing
to do so by the holders of not less than a majority in principal amount of
the outstanding Debentures of the particular series affected thereby
(determined as provided in Section 8.04); provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such costs, expenses or liabilities as
a condition to so proceeding. The reasonable expense of every such
examination shall be paid by the Company or, if paid by the Trustee, shall
be repaid by the Company upon demand;
(i) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(j) Any application by the Trustee for written instructions from the
Company may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the
date on and/or after which such action shall be taken or such omission
shall be effective. The Trustee shall not be liable for any action or
omission of the Trustee in accordance with a proposal included in such
application on or after the date specified in such application (which date
shall not be less than three Business Days after the date any officer of
the Company actually receives such application, unless any such officer
shall have consented in writing to any earlier date) unless prior to taking
any such action (or the effective date in the case of an omission), the
Trustee shall have received written instructions in response to such
application specifying the action to be taken or omitted.
SECTION 7.03. (a)The recitals contained herein and in the Debentures
(other than the Certificate of Authentication on the Debentures) shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debentures.
(c) The Trustee shall not be accountable for the use or application by
the Company of any of the Debentures or of the proceeds of the Debentures,
or for the use or application of any moneys paid over by the Trustee in
accordance with any provision of this Indenture or established pursuant to
Section 2.01, or for the use or application of any moneys received by any
paying agent other than the Trustee.
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SECTION 7.04. The Trustee or any paying agent or Debenture Registrar,
in its individual or any other capacity, may become the owner or pledgee of
Debentures with the same rights it would have if it were not Trustee,
paying agent or Debenture Registrar.
SECTION 7.05. Subject to the provisions of Section 11.06, all moneys
received by the Trustee shall, until used or applied as herein provided, be
held in trust for the purposes for which they were received, but need not
be segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any moneys received by
it hereunder except such as it may agree with the Company to pay thereon.
SECTION 7.06. (a)The Company covenants and agrees to pay to the
Trustee from time to time, and the Trustee shall be entitled to, such
compensation as the Company and the Trustee may agree upon (which shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust) for all services rendered by it in the
execution of the trusts hereby created and in the exercise and performance
of any of the powers and duties hereunder of the Trustee, and the Company
will pay or reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel
and of all persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Company also covenants to indemnify the Trustee (and its officers, agents,
directors and employees) for, and to hold it harmless against, any loss,
damage, claim, liability or expense incurred without negligence or bad
faith on the part of the Trustee and arising out of or in connection with
the acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim of liability in the
premises.
(b) The obligations of the Company under this Section to compensate
and indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness
hereunder and shall survive the termination of this Indenture. Such
additional indebtedness shall be a senior lien to that of the Debentures
upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the holders of particular
Debentures, and the Debentures are hereby subordinated to each such senior
lien.
(c) When the Trustee incurs expenses or renders services in connection
with an Event of Default, the expenses (including the reasonable charges
and expenses of its counsel) and compensation for its services are intended
to constitute expenses of administration under applicable federal or state
bankruptcy, insolvency or similar law.
SECTION 7.07. Except as otherwise provided in Section 7.01, whenever
in the administration of the provisions of this Indenture the Trustee shall
deem it necessary or desirable that a matter be proved or established prior
to taking or suffering or omitting to take any action hereunder, it shall
be entitled to receive, and such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be
conclusively provided and established by an Officers' Certificate delivered
to the Trustee and such certificate, in the absence of negligence or bad
faith on the part of the Trustee, shall be full warrant to the Trustee for
any action taken, suffered or omitted to be taken by it under the
provisions of this Indenture upon the faith thereof.
SECTION 7.08. If the Trustee has acquired or shall acquire a
conflicting interest within the meaning of the Trust Indenture Act, the
Trustee shall either eliminate such interest or resign, to the extent and
in the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Indenture.
SECTION 7.09. There shall at all times be a Trustee with respect to
the Debentures issued hereunder which shall at all times be a corporation
organized and doing business under the laws of the United States of America
or any State or Territory thereof or of the District of Columbia, or a
corporation or other person permitted to act as trustee by the Commission,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least 50 million dollars, and subject to
supervision or examination by Federal, State, Territorial or District of
Columbia authority. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section,
the combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. The Company may not, nor may any person directly or
indirectly controlling, controlled by, or under common control with the
Company, serve as Trustee. In case at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section, the Trustee
shall resign immediately in the manner and with the effect specified in
Section 7.10.
SECTION 7.10. (a)The Trustee or any successor hereafter appointed may
at any time resign with respect to the Debentures of one or more series by
giving written notice thereof to the Company and by
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transmitting notice of resignation by mail, first-class postage prepaid, to
the Debentureholders of that series, as their names and addresses appear
upon the Debenture Register. Upon receiving such notice of resignation, the
Company shall promptly appoint a successor trustee with respect to
Debentures of that series by written instrument, in duplicate, executed by
order of the Board of Directors, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee.
If no successor trustee shall have been so appointed and have accepted
appointment within 30 days after the mailing of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor trustee with respect to Debentures of that
series, or any Debentureholder of that series who has been a bona fide
holder of a Debenture or Debentures for at least six months may, subject to
the provisions of Section 6.08, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon after such notice, if any, as
it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of
Section 7.08(a) after written request therefor by the Company or by
any Debentureholder who has been a bona fide holder of a Debenture or
Debentures for at least six months; or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 7.09 and shall fail to resign after written
request therefor by the Company or by any such Debentureholder; or
(3) the Trustee shall become incapable of acting, shall be
adjudged a bankrupt or insolvent, a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, then, in any such
case, the Company may remove the Trustee with respect to all
Debentures and appoint a successor trustee by written instrument, in
duplicate, executed by order of the Board of Directors, one copy of
which instrument shall be delivered to the Trustee so removed and one
copy to the successor trustee, or, subject to the provisions of
Section 6.08, unless the Trustee's duty to resign is stayed as
provided herein, any Debentureholder who has been a bona fide holder
of a Debenture or Debentures for at least six months may, on behalf of
himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee. Such court may thereupon after
such notice, if any, as it may deem proper and prescribe, remove the
Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Debentures of any series at the time outstanding may at any time remove the
Trustee with respect to that series and appoint a successor trustee.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee with respect to the Debentures of a series pursuant to
any of the provisions of this Section shall become effective upon
acceptance of appointment by the successor trustee as provided in Section
7.11.
(e) Any successor trustee appointed pursuant to this Section may be
appointed with respect to the Debentures of one or more series or all of
such series, and at any time there shall be only one Trustee with respect
to the Debentures of any particular series.
SECTION 7.11. (a)In case of the appointment hereunder of a successor
trustee with respect to all Debentures, every such successor trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective
and such successor trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company or the successor
trustee, such retiring Trustee shall, upon payment of its charges, execute
and deliver an instrument transferring to such successor trustee all the
rights, powers, and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor trustee all property and money held
by such retiring Trustee hereunder, subject to any prior lien provided for
in Section 7.06(b).
(b) In case of the appointment hereunder of a successor trustee with
respect to the Debentures of one or more (but not all) series, the Company,
the retiring Trustee and each successor trustee with respect to the
Debentures of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor trustee shall accept such
appointment and which shall (1) contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Debentures of that or those
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series to which the appointment of such successor trustee relates, (2)
contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Debentures of that or those series as to which
the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee and (3) add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust, that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee
and that no Trustee shall be responsible for any act or failure to act on
the part of any other Trustee hereunder; and upon the execution and
delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein,
such retiring Trustee shall with respect to the Debentures of that or those
series to which the appointment of such successor trustee relates have no
further responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this
Indenture, and each such successor trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Debentures of that or
those series to which the appointment of such successor trustee relates;
but, on request of the Company or any successor trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor trustee,
to the extent contemplated by such supplemental indenture, the property and
money held by such retiring Trustee hereunder with respect to the
Debentures of that or those series to which the appointment of such
successor trustee relates.
(c) Upon request of any such successor trustee or retiring Trustee,
the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor trustee all such
rights, powers and trusts referred to in paragraph (a) or (b) of this
Section, as the case may be.
(d) No successor trustee shall accept its appointment unless at the
time of such acceptance such successor trustee shall be qualified and
eligible under this Article.
(e) Upon acceptance of appointment by a successor trustee as provided
in this Section, the Company shall transmit notice of the succession of
such trustee hereunder by mail, first-class postage prepaid, to the
Debentureholders, as their names and addresses appear upon the Debenture
Register. If the Company fails to transmit such notice within 10 days after
acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be transmitted at the expense of the Company.
SECTION 7.12. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be
a party, or any corporation succeeding to the corporate trust business of
the Trustee, shall be the successor of the Trustee hereunder, provided that
such corporation shall be qualified under the provisions of Section 7.08
and eligible under the provisions of Section 7.09, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding. In case any
Debentures shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the
Debentures so authenticated with the same effect as if such successor
Trustee had itself authenticated such Debentures.
SECTION 7.13. If and when the Trustee shall become a creditor of the
Company (or any other obligor upon the Debentures), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any other obligor upon the
Debentures).
ARTICLE EIGHT
Concerning the Debentureholders
SECTION 8.01. Whenever in this Indenture it is provided that the
holders of a majority or specified percentage in aggregate principal amount
of the Debentures of a particular series may take any action (including the
making any demand or request, the giving of any notice, consent or waiver
or the taking of any other action), the fact that at the time of taking any
such action the holders of such majority or specified percentage of that
series have joined therein may be evidenced by any instrument or any number
of instruments of similar tenor executed by such holders of Debentures of
that series in person or by agent or proxy appointed in writing.
If the Company shall solicit from the Debentureholders of any series
any request, demand, authorization, direction, notice, consent, waiver or
other action, the Company may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for that series for the
determination of Debentureholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action, but the
Company shall have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or
other action may be given before or after the record date, but only the
Debentureholders of record at the close of business on the record date
shall be deemed to be Debentureholders for the purposes of determining
whether Debentureholders of the requisite proportion of outstanding
Debentures of that series have
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authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other action, and for that purpose
the outstanding Debentures of that series shall be computed as of the
record date; provided that no such authorization, agreement or consent by
such Debentureholders on the record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not
later than six months after the record date.
SECTION 8.02. Subject to the provisions of Section 7.01, proof of the
execution of any instrument by a Debentureholder (such proof will not
require notarization) or his, her or its agent or proxy and proof of the
holding by any person of any of the Debentures shall be sufficient if made
in the following manner:
(a) the fact and date of the execution by any such person of any
instrument may be proved in any reasonable manner acceptable to the
Trustee;
(b) the ownership of Debentures shall be proved by the Debenture
Register of such Debentures or by a certificate of the Debenture
Registrar thereof; or
(c) the Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
SECTION 8.03. Prior to the due presentment for registration of
transfer of any Debenture, the Company, the Trustee, any paying agent and
any Debenture Registrar may deem and treat the person in whose name such
Debenture shall be registered upon the books of the Company as the absolute
owner of such Debenture (whether or not such Debenture shall be overdue and
notwithstanding any notice of ownership or writing thereon made by anyone
other than the Debenture Registrar) for the purpose of receiving payment of
or on account of the principal of and premium, if any, and (subject to
Section 2.03) interest on such Debenture and for all other purposes; and
neither the Company nor the Trustee nor any paying agent nor any Debenture
Registrar shall be affected by any notice to the contrary.
SECTION 8.04. At any time the Debentures are held by any holder other
than PacifiCorp Delaware, L.P., a Delaware limited partnership, in
determining whether the holders of the requisite aggregate principal amount
of Debentures of a particular series have concurred in any direction,
consent or waiver under this Indenture, Debentures of that series which are
owned by the Company or any other obligor on the Debentures of that series
or by any person directly or indirectly controlling or controlled by or
under common control with the Company or any other obligor on the
Debentures of that series shall be disregarded and deemed not to be
outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on
any such direction, consent or waiver, only Debentures of such series which
the Trustee actually knows are so owned shall be so disregarded. Debentures
so owned which have been pledged in good faith may be regarded as
outstanding for the purposes of this Section, if the pledgee shall
establish to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Debentures and that the pledgee is not a person
directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any such other obligor. In case
of a dispute as to such right, any decision by the Trustee taken upon the
advice of counsel shall be full protection to the Trustee.
SECTION 8.05. At any time prior to (but not after) the evidencing to
the Trustee, as provided in Section 8.01, of the taking of any action by
the holders of the majority or percentage in aggregate principal amount of
the Debentures of a particular series specified in this Indenture in
connection with such action, any holder of a Debenture of that series which
is shown by the evidence to be included in the Debentures the holders of
which have consented to such action may, by filing written notice with the
Trustee, and upon proof of holding as provided in Section 8.02, revoke such
action so far as concerns such Debenture. Except as aforesaid, any such
action taken by the holder of any Debenture shall be conclusive and binding
upon such holder and upon all future holders and owners of such Debenture,
and of any Debenture issued in exchange therefor, on registration of
transfer thereof or in place thereof, irrespective of whether or not any
notation in regard thereto is made upon such Debenture. Any action taken by
the holders of the majority or percentage in aggregate principal amount of
the Debentures of a particular series specified in this Indenture in
connection with such action shall be conclusively binding upon the Company,
the Trustee and the holders of all the Debentures of that series.
ARTICLE NINE
Supplemental Indentures
SECTION 9.01. In addition to any supplemental indenture otherwise
authorized by this Indenture, the Company, when authorized by a Board
Resolution, and the Trustee may from time to time and at any time enter
into an indenture or indentures supplemental hereto (which shall conform to
the provisions of the Trust Indenture Act as then in effect), without the
consent of the Debentureholders, for one or more of the following purposes:
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(a) to evidence the succession of another corporation to the
Company, and the assumption by any such successor of the covenants of
the Company contained herein or otherwise established with respect to
the Debentures;
(b) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions for the protection
of the holders of the Debentures of all or any series as the Board of
Directors and the Trustee shall consider to be for the protection of
the holders of Debentures of all or any series, and to make the
occurrence, or the occurrence and continuance, of a default in any of
such additional covenants, restrictions, conditions or provisions a
default or an Event of Default with respect to that series permitting
the enforcement of all or any of the several remedies provided in this
Indenture as herein set forth; provided, however, that in respect of
any such additional covenant, restriction, condition or provision,
such supplemental indenture may provide for a particular period of
grace after default (which period may be shorter or longer than that
allowed in the case of other defaults), may provide for an immediate
enforcement upon such default or may limit the remedies available to
the Trustee upon such default or may limit the right of the holders of
a majority in aggregate principal amount of the Debentures of such
series to waive such default;
(c) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture, or to make such other provisions in
regard to matters or questions arising under this indenture as shall
not be inconsistent with the provisions of this Indenture and shall
not adversely affect the interests of the holders of the Debentures of
any series; or
(d) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Debenture outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations which may be therein contained, but
the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Company and the Trustee without the consent
of the holders of any of the Debentures at the time outstanding,
notwithstanding any of the provisions of Section 9.02.
SECTION 9.02. With the consent (evidenced as provided in Section 8.01)
of the holders of not less than a majority in aggregate principal amount of
the Debentures of each series affected by such supplemental indenture or
indentures at the time outstanding, the Company, when authorized by a Board
Resolution, and the Trustee may from time to time and at any time enter
into an indenture or indentures supplemental hereto (which shall conform to
the provisions of the Trust Indenture Act as then in effect) for the
purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the holders of the
Debentures of that series under this Indenture; provided, however, that no
such supplemental indenture shall (i) extend the fixed maturity of any
Debentures of any series, reduce the principal amount thereof, reduce the
rate or extend the time of payment of interest thereon or reduce any
premium payable upon the redemption thereof, without the consent of the
holder of each Debenture so affected or (ii) reduce the aforesaid
percentage of Debentures, the holders of which are required to consent to
any such supplemental indenture, without the consent of the holders of each
Debenture then outstanding and affected thereby.
Upon the request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Debentureholders
required to consent thereto as aforesaid, the Trustee shall join with the
Company in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may
in its discretion but shall not be obligated to enter into such
supplemental indenture.
It shall not be necessary for the consent of the Debentureholders of
any series affected thereby under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if
such consent shall approve the substance thereof.
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Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the
Trustee shall transmit by mail, first-class postage prepaid, a notice,
setting forth in general terms the substance of such supplemental
indenture, to the Debentureholders of all series affected thereby as their
names and addresses appear upon the Debenture Register. Any failure of the
Trustee to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
SECTION 9.03. Upon the execution of any supplemental indenture
pursuant to the provisions of this Article or of Section 10.01, this
Indenture shall, with respect to that series, be and be deemed to be
modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the holders of Debentures of the
series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
SECTION 9.04. Debentures of any series, affected by a supplemental
indenture, authenticated and delivered after the execution of such
supplemental indenture pursuant to the provisions of this Article or of
Section 10.01, may bear a notation in form approved by the Company,
provided such form meets the requirements of any exchange upon which such
series may be listed, as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Debentures of that series
so modified as to conform, in the opinion of the Board of Directors, to any
modification of this Indenture contained in any such supplemental indenture
may be prepared by the Company, authenticated by the Trustee and delivered
in exchange for the Debentures of that series then outstanding.
SECTION 9.05. The Trustee, subject to the provisions of Section 7.01,
is entitled to receive an Opinion of Counsel as conclusive evidence that
any supplemental indenture executed pursuant to this Article is authorized
or permitted by, and conforms to, the terms of this Article and that it is
proper for the Trustee under the provisions of this Article to join in the
execution thereof.
ARTICLE TEN
Consolidation, Merger and Sale
SECTION 10.01. Nothing contained in this Indenture or in any of the
Debentures shall prevent any consolidation or merger of the Company with or
into any other corporation or corporations (whether or not affiliated with
the Company), or successive consolidations or mergers in which the Company
or its successor or successors shall be a party or parties, or shall
prevent any sale, conveyance, transfer or other disposition of the property
of the Company or its successor or successors as an entirety, or
substantially as an entirety, to any other corporation (whether or not
affiliated with the Company or its successor or successors) authorized to
acquire and operate the same; provided, however, the Company hereby
covenants and agrees that, upon any such consolidation, merger, sale,
conveyance, transfer or other disposition, the due and punctual payment of
the principal of (premium, if any) and interest on all of the Debentures of
all series in accordance with the terms of each series, according to their
tenor, and the due and punctual performance and observance of all the
covenants and conditions of this Indenture with respect to each series or
established with respect to each series pursuant to Section 2.01 to be kept
or performed by the Company, shall be expressly assumed, by supplemental
indenture (which shall conform to the provisions of the Trust Indenture Act
as then in effect) satisfactory in form to the Trustee executed and
delivered to the Trustee by the entity formed by such consolidation, or
into which the Company shall have been merged, or by the entity which shall
have acquired such property.
SECTION 10.02. (a)In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition and upon the assumption by the
successor corporation, by supplemental indenture, executed and delivered to
the Trustee and satisfactory in form to the Trustee, of the due and
punctual payment of the principal of and premium, if any, and interest on
all of the Debentures of all series outstanding and the due and punctual
performance of all of the covenants and conditions of this Indenture or
established with respect to each series of the Debentures pursuant to
Section 2.01 to be performed by the Company with respect to each series,
such successor corporation shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as the party
of the first part, and thereupon the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and the
Debentures, except the provisions of Section 7.06 to the extent such
provisions relate to matters occurring before any such consolidation,
merger, sale, conveyance, transfer or other disposition. Such successor
corporation thereupon may cause to be signed, and may issue either in its
own name or in the name of the Company or any other predecessor obligor on
the Debentures, any or all of the Debentures issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor company, instead of the
Company, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
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Debentures which previously shall have been signed and delivered by the
officers of the predecessor Company to the Trustee for authentication, and
any Debentures which such successor corporation thereafter shall cause to
be signed and delivered to the Trustee for that purpose. All the Debentures
so issued shall in all respects have the same legal rank and benefit under
this Indenture as the Debentures theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such
Debentures had been issued at the date of the execution hereof.
(b) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition, such changes in phraseology and form (but
not in substance) may be made in the Debentures thereafter to be issued as
may be appropriate.
(c) Nothing contained in this Indenture or in any of the Debentures
shall prevent the Company from merging into itself or acquiring by purchase
or otherwise all or any part of the property of any other corporation
(whether or not affiliated with the Company).
SECTION 10.03. The Trustee, subject to the provisions of Section 7.01,
is entitled to receive an Opinion of Counsel as conclusive evidence that
any such consolidation, merger, sale, conveyance, transfer or other
disposition, and any such assumption, comply with the provisions of this
Article.
ARTICLE ELEVEN
Satisfaction and Discharge of Indenture;
Unclaimed Moneys
SECTION 11.01. If at any time: (a) the Company shall have delivered to
the Trustee for cancellation all Debentures of a series theretofore
authenticated (other than any Debentures which shall have been destroyed,
lost or stolen and which shall have been replaced or paid as provided in
Section 2.07) and Debentures for whose payment money or Governmental
Obligations has theretofore been deposited in trust or segregated and held
in trust by the Company (and thereupon repaid to the Company or discharged
from such trust, as provided in Section 11.06); (b) all such Debentures of
a particular series not theretofore delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the
giving of notice of redemption, and the Company shall deposit or cause to
be deposited with the Trustee as trust funds the entire amount in moneys or
Governmental Obligations sufficient; or (c) a combination thereof,
sufficient in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered
to the Trustee, to pay at maturity or upon redemption all Debentures of
that series not theretofore delivered to the Trustee for cancellation,
including principal (and premium, if any) and interest due or to become due
to such date of maturity or date fixed for redemption, as the case may be,
and if the Company shall also pay or cause to be paid all other sums
payable hereunder with respect to that series by the Company, then this
Indenture shall thereupon cease to be of further effect with respect to
such series except for the provisions of Sections 2.05, 2.07, 4.02 and
7.10, which shall survive until the date of maturity or redemption date, as
the case may be, and Sections 7.06 and 11.06 which shall survive to such
date and thereafter, and the Trustee, on demand of the Company and at the
cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture with respect
to such series.
SECTION 11.02. If at any time all such Debentures of a particular
series not heretofore delivered to the Trustee for cancellation or which
have not become due and payable as described in Section 11.01 shall have
been paid by the Company by depositing irrevocably with the Trustee as
trust funds moneys or an amount of Governmental Obligations sufficient to
pay at maturity or upon redemption all such Debentures of that series not
theretofore delivered to the Trustee for cancellation, including principal
(and premium, if any) and interest due or to become due to such date of
maturity or date fixed for redemption, as the case may be, and if the
Company shall also pay or cause to be paid all other sums payable hereunder
by the Company with respect to that series, then after the date such moneys
or Governmental Obligations, as the case may be, are deposited with the
Trustee the obligations of the Company under this Indenture with respect to
such series shall cease to be of further effect except for the provisions
of Sections 2.05, 2.07, 4.02, 7.06, 7.10 and 11.06 hereof which shall
survive until such Debentures shall mature and be paid. Thereafter,
sections 7.06 and 11.05 shall survive. The release of the Company from its
obligations under this Indenture, as provided for in this Section 11.02,
shall be subject to the further condition that the Company first shall have
caused to be delivered to the Trustee an Opinion of Counsel to the effect
that Debentureholders of a series with respect to which a deposit has been
made in accordance with this Section 11.02 will not realize income, gain or
loss for federal income tax purposes as a result of such deposit and
release, and will be subject to federal income tax on the same amount, in
the same manner and at the same times as would have been the case if such
deposit and release had not occurred.
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SECTION 11.03. If, in addition to satisfying the conditions set forth
in Section 11.01 or 11.02 (except for the requirement of an Opinion of
Counsel), the Company delivers to the Trustee an Opinion of Counsel to the
effect that (a) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling or (b) since the date of this
Indenture there has been a change in applicable federal income tax law, in
either case to the effect that, and based thereon such Opinion of Counsel
shall confirm that, the Debentureholders of a series with respect to which
a deposit has been made in accordance with Section 11.01 or 11.02 will not
realize income, gain or loss for federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to federal
income tax on the same amount, in the same manner and at the same times, as
would have been the case if such deposit, defeasance and discharge had not
occurred and (c) the deposit shall not result in the Company, the Trustee
or the trust being deemed an "investment company" under the Investment
Company Act of 1940, as amended, then, in such event, the Company will be
deemed to have paid and discharged the entire indebtedness on that series
and the holder thereof shall thereafter be entitled to receive payment
solely from the trust fund described above.
SECTION 11.04. All moneys or Governmental Obligations deposited with
the Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and
shall be available for payment as due, either directly or through any
paying agent (including the Company acting as its own paying agent), to the
holders of the particular series of Debentures for the payment or
redemption of which such moneys or Governmental Obligations have been
deposited with the Trustee.
SECTION 11.05. In connection with the satisfaction and discharge of
this Indenture all moneys or Governmental Obligations then held by any
paying agent under the provisions of this Indenture shall, upon demand of
the Company, be paid to the Trustee and thereupon such paying agent shall
be released from all further liability with respect to such moneys or
Governmental Obligations.
SECTION 11.06. Any moneys or Governmental Obligations deposited with
any paying agent or the Trustee, or then held by the Company, in trust for
payment of principal of or premium or interest on the Debentures of a
particular series that are not applied but remain unclaimed by the holders
of such Debentures for at least two years after the date upon which the
principal of (and premium, if any) or interest on such Debentures shall
have respectively become due and payable, shall, upon written notice from
the Company, be repaid to the Company on May 31 of each year or (if then
held by the Company) shall be discharged from such trust; and thereupon the
paying agent and the Trustee shall be released from all further liability
with respect to such moneys or Governmental Obligations, and the holder of
any of the Debentures entitled to receive such payment shall thereafter, as
an unsecured general creditor, look only to the Company for the payment
thereof.
ARTICLE TWELVE
Immunity of Incorporators, Stockholders, Officers
and Directors
SECTION 12.01. No recourse under or upon any obligation, covenant or
agreement of this Indenture, or of any Debenture, or for any claim based
thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, past, present or future as
such, of the Company or of any predecessor or successor corporation, either
directly or through the Company or any such predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law,
or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations issued
hereunder are solely corporate obligations, and that no such personal
liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors as such, of the Company
or of any predecessor or successor corporation, or any of them, because of
the creation of the indebtedness hereby authorized, or under or by reason
of the obligations, covenants or agreements contained in this Indenture or
in any of the Debentures or implied therefrom; and that any and all such
personal liability of every name and nature, either at common law, in
equity or by constitution or statute, of, and any and all such rights and
claims against, every such incorporator, stockholder, officer or director
as such, because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in
this Indenture or in any of the Debentures or implied therefrom, are hereby
expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issuance of such Debentures.
ARTICLE THIRTEEN
Miscellaneous Provisions
SECTION 13.01. All the covenants, stipulations, promises and
agreements in this Indenture contained by or on behalf of the Company shall
bind its successors and assigns, whether so expressed or not.
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SECTION 13.02. Any act or proceeding by any provision of this
Indenture authorized or required to be done or performed by any board,
committee or officer of the Company shall and may be done and performed
with like force and effect by the corresponding board, committee or officer
of any corporation that shall at the time be the lawful sole successor of
the Company.
SECTION 13.03. Except as otherwise expressly provided herein, any
notice or demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the holders of
Debentures to or on the Company may be given or served by being deposited
first-class postage prepaid in a post-office letter box addressed (until
another address is filed in writing by the Company with the Trustee), as
follows: PacifiCorp, 700 NE Multnomah, Suite 1600, Attention: Richard T.
O'Brien. Any notice, election, request or demand by the Company or any
Debentureholder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in writing
at the Corporate Trust Office of the Trustee.
SECTION 13.04. This Indenture and each Debenture shall be deemed to be
a contract made under the laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of that State,
without regard to the conflicts of laws principles thereof.
SECTION 13.05. (a)Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this Indenture,
the Company shall furnish to the Trustee an Officers' Certificate stating
that all conditions precedent provided for in this Indenture relating to
the proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent
have been complied with, except that in the case of any such application or
demand as to which the furnishing of such documents is specifically
required by any provision of this Indenture relating to such particular
application or demand, no additional certificate or opinion need be
furnished.
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant in this Indenture (other than the certificate provided pursuant to
Section 5.03(d) of this Indenture) shall include (1) a statement that the
person making such certificate or opinion has read such covenant or
condition; (2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (3) a statement that,
in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion
as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.
SECTION 13.06. Simultaneously with the execution of this Indenture,
the Company shall deliver to the Trustee an Opinion of Counsel stating
that, in the opinion of such counsel, (a) this Indenture has been duly
authorized by and lawfully executed and delivered on behalf of the Company,
is in full force and effect and is legal, valid and binding upon the
Company in accordance with its terms, except to the extent limited by
bankruptcy, insolvency, reorganization or other laws affecting creditors'
rights and (b) the Debentures have been authorized, executed and delivered
by the Company and constitute legal, valid and binding obligations of the
Company in accordance with their terms.
SECTION 13.07. Except as provided pursuant to Section 2.01 pursuant to
a Board Resolution, and as set forth in an Officers' Certificate, or
established in one or more indentures supplemental to this Indenture, in
any case where the date of maturity of interest or principal of any
Debenture or the date of redemption of any Debenture shall not be a
Business Day then payment of interest or principal (and premium, if any)
may be made on the next succeeding Business Day with the same force and
effect as if made on the nominal date of maturity or redemption, and no
interest shall accrue for the period after such nominal date.
SECTION 13.08. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by
operation of Section 3.18(c) of the Trust Indenture Act, such imposed
duties shall control.
SECTION 13.09. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts
shall together constitute one and the same instrument.
SECTION 13.10. In case any one or more of the provisions contained in
this Indenture or in the Debentures of any series shall for any reason be
held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provisions of this Indenture or of such Debentures, but this Indenture and
such Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 13.11. The Company will have the right at all times to assign
any of its rights or obligations under this Indenture to a direct or
indirect wholly-owned subsidiary of the Company; provided that, in the
event
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of any such assignment, the Company will remain liable for all such
obligations. Subject to the foregoing, the Indenture is binding upon and
inures to the benefit of the parties thereto and their respective
successors and assigns. The Indenture may not otherwise be assigned by the
parties thereto.
SECTION 13.12. The parties intend that, for each holder of a Debenture
and each person that acquires a beneficial ownership interest in a
Debenture, such Debentures shall constitute indebtedness for purposes of
United States federal, state and local taxes.
ARTICLE FOURTEEN
Subordination of Debentures
SECTION 14.01. The Company covenants and agrees, and each holder of
Debentures issued hereunder by his acceptance thereof likewise covenants
and agrees, that all Debentures shall be issued subject to the provisions
of this Article Fourteen; and each holder of a Debenture, whether upon
original issue or upon transfer or assignment thereof, accepts and agrees
to be bound by such provisions.
The payment of the principal of and premium, if any, and interest on
all Debentures issued hereunder shall, to the extent and in the manner
hereinafter set forth, be subordinated and junior in right of payment to
the prior payment in full of all Senior Indebtedness, whether outstanding
at the date of this Indenture or thereafter incurred. No provision of this
Article Fourteen shall prevent the occurrence of any default or Event of
Default hereunder.
SECTION 14.02. In the event and during the continuation of any default
in the payment of principal, premium, interest or any payment due on any
Senior Indebtedness continuing beyond the period of grace, if any,
specified in the instrument evidencing such Senior Indebtedness (and the
Trustee has received written notice thereof from the Company or one or more
holders of Senior Indebtedness or their representative or representatives
or a trustee), unless and until such default shall have been cured or
waived or shall have ceased to exist, and in the event that the maturity of
any Senior Indebtedness has been accelerated because of a default (and the
Trustee has received written notice thereof from the Company or one or more
holders of Senior Indebtedness or their representative or representatives
or a trustee), then no payment shall be made by the Company with respect to
the principal (including redemption and sinking fund payments) of or
premium, if any, or interest on the Debentures.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee or any holder when such payment is prohibited by
the preceding paragraph of this Section 14.02, such payment shall be held
in trust for the benefit of, and shall be paid over or delivered to, the
holders of Senior Indebtedness or their respective representatives, or to
the trustee or trustees under any indenture pursuant to which any of such
Senior Indebtedness may have been issued, as their respective interests may
appear, but only to the extent that the holders of the Senior Indebtedness
(or their representative or representatives or a trustee) notify the
Trustee within 90 days of such payment of the amounts then due and owing on
the Senior Indebtedness and only the amounts specified in such notice to
the Trustee shall be paid to the holders of Senior Indebtedness.
SECTION 14.03. Upon any payment by the Company, or distribution of
assets of the Company of any kind or character, whether in cash, property
or securities, to creditors upon any dissolution, winding-up, liquidation
or reorganization of the Company, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due
or to become due upon all Senior Indebtedness shall first be paid in full,
or payment thereof provided for in money in accordance with its terms,
before any payment is made on account of the principal (and premium, if
any) or interest on the Debentures; and upon any such dissolution,
winding-up, liquidation or reorganization, any payment by the Company or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, to which the holders of the Debentures or the
Trustee would be entitled, except for the provisions of this Article
Fourteen, shall be paid by the Company, by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other person making such payment
or distribution, by the holders of the Debentures or by the Trustee under
this Indenture if received by them or it directly to the holders of Senior
Indebtedness (pro rata to such holders on the basis of the respective
amounts of Senior Indebtedness held by such holders, as calculated by the
Company) or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing
any Senior Indebtedness may have been issued, as their respective interests
may appear, to the extent necessary to pay all Senior Indebtedness in full,
in money or money's worth, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness, before any
payment or distribution is made to the holders of Debentures or to the
Trustee.
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In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be
received by the Trustee or the holders of the Debentures before all Senior
Indebtedness is paid in full, or provision is made for such payment in
money in accordance with its terms, such payment or distribution shall be
held in trust for the benefit of and shall be paid over or delivered to the
holders of Senior Indebtedness or their representative or representatives,
or to the trustee or trustees under any indenture pursuant to which any
instruments evidencing any Senior Indebtedness may have been issued, as
their respective interests may appear, as calculated by the Company, for
application to the payment of Senior Indebtedness remaining unpaid to the
extent necessary to pay all Senior Indebtedness in full in money in
accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness.
For purposes of this Article Fourteen, the words, "cash, property or
securities" shall not be deemed to include shares of stock of the Company
as reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this
Article Fourteen with respect to the Debentures to the payment of all
Senior Indebtedness which may at the time be outstanding; provided that (i)
the Senior Indebtedness is assumed by the new corporation, if any,
resulting from any such reorganization or readjustment, and (ii) the rights
of the holders of the Senior Indebtedness are not, without the consent of
such holders, altered by such reorganization or readjustment. The
consolidation of the Company with, or the merger of the Company into,
another corporation or the liquidation or dissolution of the Company
following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article Ten hereof shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of
this Section 14.03 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions
stated in Article Ten hereof. Nothing in Section 14.02 or in this Section
14.03 shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 7.06.
SECTION 14.04. Subject to the payment in full of all Senior
Indebtedness, the rights of the holders of the Debentures shall be
subrogated to the rights of the holders of Senior Indebtedness to receive
payments or distributions of cash, property or securities of the Company
applicable to the Senior Indebtedness until the principal of (and premium,
if any) and interest on the Debentures shall be paid in full; and, for the
purposes of such subrogation, no payments or distributions to the holders
of the Senior Indebtedness of any cash, property or securities to which the
holders of the Debentures or the Trustee would be entitled except for the
provisions of this Article Fourteen, and no payment over pursuant to the
provisions of this Article Fourteen, to or for the benefit of the holders
of Senior Indebtedness by holders of the Debentures or the Trustee, shall,
as between the Company, its creditors other than holders of Senior
Indebtedness, and the holders of the Debentures, be deemed to be a payment
by the Company to or on account of the Senior Indebtedness. It is
understood that the provisions of this Article Fourteen are and are
intended solely for the purposes of defining the relative rights of the
holders of the Debentures, on the one hand, and the holders of the Senior
Indebtedness on the other hand.
Nothing contained in this Article Fourteen or elsewhere in this
Indenture or in the Debentures is intended to or shall impair, as between
the Company, its creditors other than the holders of Senior Indebtedness,
and the holders of the Debentures, the obligation of the Company, which is
absolute and unconditional, to pay to the holders of the Debentures the
principal of (and premium, if any) and interest on the Debentures as and
when the same shall become due and payable in accordance with their terms,
or is intended to or shall affect the relative rights of the holders of the
Debentures and creditors of the Company other than the holders of the
Senior Indebtedness, nor shall anything herein or therein prevent the
Trustee or the holder of any Debenture from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article Fourteen of the holders
of Senior Indebtedness in respect of cash, property or securities of the
Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article Fourteen, the Trustee, subject to the provision of Section
7.01, and the holders of the Debentures shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which such
dissolution, winding-up, liquidation or reorganization proceedings are
pending, or a certificate of the receiver, trustee in bankruptcy,
liquidation trustee, agent or other person making such payment or
distribution, delivered to the Trustee or to the holders of the Debentures,
for the purposes of ascertaining the persons entitled to participate in
such distribution, the holders of the Senior Indebtedness and other
indebtedness of the Company, the amount hereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Fourteen.
SECTION 14.05. Each holder of a Debenture by acceptance thereof
authorizes and directs the Trustee in his, her or its behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article Fourteen and appoints the Trustee his
attorney-in-fact for any and all such purposes.
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SECTION 14.06. The Company shall give prompt written notice to a
Responsible Officer of the Trustee of any fact known to the Company which
would prohibit the making of any payment of monies to or by the Trustee or
paying agent in respect of the Debentures pursuant to the provisions of
this Article Fourteen. Notwithstanding the provisions of this Article
Fourteen or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit
the making of any payment of monies to or by the Trustee or paying agent in
respect of the Debentures pursuant to the provisions of this Article
Fourteen, unless and until a Responsible Officer of the Trustee shall have
received written notice thereof at the Corporate Trust Office of the
Trustee from the Company or a holder or holders of Senior Indebtedness or
from any trustee therefor; and before the receipt of any such written
notice, the Trustee, subject to the provisions of Section 7.01, shall be
entitled in all respects to assume that no such facts exist; provided that
if the Trustee shall not have received the notice provided for in this
Section 14.06 at least two Business Days prior to the date upon which by
the terms hereof any money may become payable for any purpose (including,
without limitation, the payment of the principal of (or premium, if any) or
interest on any Debenture), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive
such money and to apply the same to the purposes for which they were
received, and shall not be affected by any notice to the contrary which may
be received by it within two Business Days prior to such date.
The Trustee, subject to the provisions of Section 7.01, shall be
entitled to rely on the delivery to it of a written notice by a person
representing himself to be a holder of Senior Indebtedness (or a trustee on
behalf of such holder) to establish that such notice has been given by a
holder of Senior Indebtedness or a trustee on behalf of any such holder or
holders. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any person as a
holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article Fourteen, the Trustee may request such person to
furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Indebtedness held by such person, the extent to which such
person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such person under this Article
Fourteen, and if such evidence is not furnished the Trustee may defer any
payment to such person pending judicial determination as to the right of
such person to receive such payment.
SECTION 14.07. The Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article Fourteen in respect of
any Senior Indebtedness at any time held by it, to the same extent as any
other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Fourteen, and no
implied covenants or obligations with respect to the holders of Senior
Indebtedness shall be read into this Indenture against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and, subject to the provisions of Section 7.01, the
Trustee shall not be liable to any holder of Senior Indebtedness if it
shall pay over or deliver to holders of Debentures, the Company or any
other person money or assets to which any holder of Senior Indebtedness
shall be entitled by virtue of this Article Fourteen or otherwise.
SECTION 14.08. No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time
in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge
thereof which any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the holders of the
Debentures, without incurring responsibility to the holders of the
Debentures and without impairing or releasing the subordination provided in
this Article or the obligations hereunder of the holders of the Debentures
to the holders of Senior Indebtedness, do any one or more of the following:
(i) change the manner, place or terms of payment or extend the time of
payment of, or renew or alter, Senior Indebtedness, or otherwise amend or
supplement in any manner Senior Indebtedness or any instrument evidencing
the same or any agreement under which Senior Indebtedness is outstanding;
(ii) sell, exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing Senior Indebtedness; (iii) release any
person liable in any manner for the collection of Senior Indebtedness; and
(iv) exercise or refrain from exercising any rights against the Company and
any other person.
The Bank of New York, as Trustee, hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions hereinabove
set forth.
33
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
PACIFICORP
By: RICHARD T. O'BRIEN
----------------------------------
Richard T. O'Brien, Vice President
Attest:
By: SALLY A. NOFZIGER
------------------------------
Sally A. Nofziger, Secretary
THE BANK OF NEW YORK
as Trustee
By: VIVIAN GEORGES
----------------------------------
Its: Assistant Vice President
Attest:
By: PAUL SCHMALZEL
------------------------------
Its: Assistant Treasurer
STATE OF OREGON )
) ss.
COUNTY OF MULTNOMAH )
On May 25, 1995 before me personally appeared Richard T. O'Brien and
Sally A. Nofziger personally known to me or proved to me on the basis of
satisfactory evidence to be the persons whose names are subscribed to the
within instrument and acknowledged to me that they executed the same in
their authorized capacities, and that by their signatures on the instrument
the persons, or the entity upon behalf of which the persons acted, executed
the instrument.
Witness my hand and official seal.
SHERYL LEE STRATTON
- ----------------------------------
Signature of Notary Public
My Commission Expires: 5/25/96
34
<PAGE>
STATE OF ______________ )
) ss.
COUNTY OF _____________ )
On this day of May 26, 1995 before me personally appeared Vivian
Georges and Paul Schmalzel proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies) and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
Witness my hand and official seal.
TIMOTHY J. SHEA
- ----------------------------------
Signature of Notary Public
My Commission Expires: May 5, 1996
35
<PAGE>
PACIFICORP
AND
THE BANK OF NEW YORK,
as Trustee
--------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of May 1, 1995
TO
INDENTURE
Dated as of May 1, 1995
--------------------
8 3/8% Junior Subordinated Deferrable Interest Debentures, Series A
<PAGE>
FIRST SUPPLEMENTAL INDENTURE, dated as of the 1st day of May,
1995 (the "First Supplemental Indenture"), between PACIFICORP, a
corporation duly organized and existing under the laws of the State of
Oregon (hereinafter sometimes referred to as the "Company"), and THE BANK
OF NEW YORK, a New York banking corporation organized and existing under
the laws of the State of New York, as trustee (hereinafter sometimes
referred to as the "Trustee") (under the Indenture dated as of May 1, 1995
between the Company and the Trustee (the "Indenture;" all terms used and
not defined herein are used as defined in the Indenture).
WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of its junior subordinated
debentures (the "Debentures"), which Debentures are to be issued from time
to time in such series as may be determined by the Company under the
Indenture, in an unlimited aggregate principal amount which may be
authenticated and delivered thereunder as in the Indenture provided; and
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its Debentures
to be known as its 8 3/8% Junior Subordinated Deferrable Interest
Debentures, Series A (such series being hereinafter referred to as the
"Series A Debentures"), the form and substance of such Series A Debentures
and the terms, provisions and conditions thereof to be set forth as
provided in the Indenture and this First Supplemental Indenture; and
WHEREAS, the Company desires and has requested the Trustee to
join with it in the execution and delivery of this First Supplemental
Indenture, and all requirements necessary to make this First Supplemental
Indenture a valid instrument, in accordance with its terms, and to make the
Series A Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company, have been
performed and fulfilled, and the execution and delivery hereof have been in
all respects duly authorized;
NOW, THEREFORE, in consideration of the purchase and acceptance
of the Series A Debentures by the holders thereof, and for the purpose of
setting forth, as provided in the Indenture, the form and substance of the
Series A Debentures and the terms, provisions and conditions thereof, the
Company covenants and agrees with the Trustee as follows:
ARTICLE ONE
General Terms and Conditions of
the Series A Debentures
SECTION 1.01. There shall be and is hereby authorized a series of
Debentures designated the "8 3/8% Junior Subordinated Deferrable Interest
Debentures, Series A," limited in aggregate principal amount to
$120,000,000, which amount shall be as set forth in any written order of
the Company for the authentication and delivery of Series A Debentures. The
Series A Debentures shall mature and the principal shall be due and
payable, together with all accrued and unpaid interest thereon, on June 30,
2035, and shall be issued in the form of registered Series A Debentures
without coupons.
SECTION 1.02. The Series A Debentures shall be issued as a Global
Debenture and registered in the name of the Depository or its nominee. The
Depository for the Series A Debentures shall be The Depository Trust
Company, New York, New York, subject to the appointment of a successor
Depository as provided in the Indenture. Series A Debentures represented by
the Global Debenture will not be exchangeable for, and will not otherwise
be issuable as, Series A Debentures in certificated form, except in the
event that the Company discontinues its use of a Depository. Principal of
and interest on the Series A Debentures issued in certificated form will be
payable, the transfer of such Series A Debentures will be registrable and
such Series A Debentures will be exchangeable for Series A Debentures
bearing identical terms and provisions at the office or agency of the
Company maintained for that purpose in the Borough of Manhattan, The City
of New York; provided, however, that payment of interest may be made at the
option of the Company by check
<PAGE>
mailed to the registered holder at such address as shall appear in the
Debenture Register or by wire transfer to an account maintained by the
registered holder as specified in the Debenture Register. PacifiCorp and
the Trustee will act as co-paying agents for the Series A Debentures so
long as the Series A Debentures are represented by a Global Debenture.
Payments of principal of and interest on the Series A Debentures issued as
a Global Debenture will be made to the Depository.
SECTION 1.03. Each Series A Debenture will bear interest at the
rate of 8 3/8% per annum from and including the original date of issuance
or from the most recent Interest Payment Date referred to below to which
interest has been paid or duly provided for until the principal thereof
becomes due and payable, and on any overdue principal and (to the extent
that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the same rate per annum, payable
quarterly in arrears on March 31, June 30, September 30 and December 31 of
each year (each, an "Interest Payment Date"), commencing on June 30, 1995,
to the person in whose name such Series A Debenture or any predecessor
Series A Debenture is registered at the close of business on the Business
Day next preceding each such Interest Payment Date (each, a "Record Date");
provided, however, that if the Series A Debentures shall not remain in the
form of a Global Debenture, the Company shall have the right to select
another record date, which shall be any day prior to, but not more than 15
days preceding, an Interest Payment Date. Any such interest installment not
punctually paid or duly provided for on any Interest Payment Date shall
forthwith cease to be payable to the registered holder on the relevant
Record Date, and may be paid to the person in whose name the Series A
Debenture (or one or more predecessor Debentures) is registered at the
close of business on a special record date to be fixed by the Trustee for
the payment of such defaulted interest, notice whereof shall be given to
the registered holders of the Series A Debentures not less than 10 days
prior to such special record date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Series A Debentures may then be listed, and upon such
notice as may be required by such exchange, all as more fully provided in
the Indenture; provided, however, that interest (other than interest
described in the next sentence) shall not be considered payable by the
Company on any Interest Payment Date falling within an Extension Period (as
defined in Section 3.01 below), unless the Company has elected to make a
full or partial payment of interest accrued on the Series A Debentures on
that Interest Payment Date. Any partial payment of interest accrued on the
Series A Debentures on any Interest Payment Date falling within an
Extension Period shall be paid pro rata to such registered holders based
upon the principal amount of Series A Debentures then held by such
registered holders.
The amount of interest payable for any period will be computed on
the basis of a 360-day year of twelve 30-day months and, for any period
shorter than a full calendar month, on the basis of the actual number of
days elapsed in such period. In the event that any date on which interest
is payable on the Series A Debentures is not a Business Day, then payment
of interest payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other payment in
respect of any such delay), except that, if such Business Day is in the
next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on such date.
ARTICLE TWO
Redemption of the Series A Debentures
Subject to the terms of Article Three of the Indenture, the
Company shall have the right to redeem the Series A Debentures, in whole or
in part, from time to time, on or after May 31, 2000, at a redemption price
equal to 100% of the principal amount of Series A Debentures to be redeemed
plus any accrued and unpaid interest thereon to the date of such
redemption. If the Series A Debentures are only partially redeemed pursuant
to this Section, the Series A Debentures will be redeemed by lot or by any
other method utilized by the Trustee.
2
<PAGE>
ARTICLE THREE
Extension of Interest Payment Period
SECTION 3.01. Subject to Section 4.06 of the Indenture, so long
as the Company shall not be in default in the payment of interest on the
Series A Debentures, the Company shall have the right, at any time during
the term of the Series A Debentures, to extend any interest payment period
of such Series A Debentures at any time and from time to time for a period
not to exceed 20 consecutive calendar quarters from the last Interest
Payment Date to which interest was paid in full (each, an "Extension
Period"), provided that such Extension Period ends on another Interest
Payment Date. No interest shall be due and payable during an Extension
Period, but on the Interest Payment Date occurring at the end of each
Extension Period the Company shall pay to the holders of record on the
Record Date for such Interest Payment Date (regardless of who the holders
of record may have been on other dates during such Extension Period) all
accrued and unpaid interest on the Series A Debentures, together with
interest thereon at the rate specified for the Series A Debentures. Prior
to the termination of any Extension Period, the Company may pay all or
(subject to the last sentence of the first paragraph of Section 1.03 above)
any portion of the interest accrued on the Series A Debentures on any
Interest Payment Date to holders of record on the Record Date for that
Interest Payment Date or may from time to time further extend such
Extension Period, provided that any such Extension Period, together with
all such previous and further extensions thereof, shall not exceed 20
consecutive calendar quarters. If the Company shall elect to pay all of the
interest accrued on the Series A Debentures on an Interest Payment Date
during an Extension Period, that Extension Period shall automatically
terminate on that Interest Payment Date. Upon the termination of an
Extension Period and the payment of all amounts of interest then due, the
Company may commence a new Extension Period, subject to the foregoing
requirements.
SECTION 3.02. The Company shall give the Trustee written notice
of (i) any election by the Company to initiate an Extension Period and the
duration thereof, (ii) any election by the Company to extend an Extension
Period beyond the Interest Payment Date on which that Extension Period is
then scheduled to terminate and the duration of such extension and (iii)
any election by the Company to make a full or partial payment of interest
accrued on the Series A Debentures on any Interest Payment Date during an
Extension Period and the amount of such payment. In no event shall such
notice by the Company be given less than 15 Business Days prior to the
later of (A) the Record Date next preceding the applicable Interest Payment
Date and (B) five Business Days prior to such Interest Payment Date. Upon
receipt of any such notice, the Trustee shall give written notice of the
Company's election by mail to the Series A Debentureholders not less than
10 Business Days prior to such Interest Payment Date. The Company shall
make a public announcement of any such election in accordance with New York
Stock Exchange rules not less than five Business Days prior to such Record
Date.
ARTICLE FOUR
Form of Series A Debenture
The Series A Debentures and the Trustee's Certificate of
Authentication to be endorsed thereon are to be substantially in the
following forms:
(FORM OF FACE OF DEBENTURE)
This Debenture is a Global Debenture within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depository or a nominee of a Depository. This Debenture is exchangeable for
Debentures registered in the name of a person other than the Depository or
its nominee only in the limited circumstances described in the Indenture,
and no transfer of this Debenture (other than a transfer of this Debenture
as a whole by the Depository to a nominee of the Depository or by a nominee
of the Depository to the Depository or another nominee of the Depository)
may be registered except in limited circumstances.
3
<PAGE>
Unless this Debenture is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York)
to the issuer or its agent for registration of transfer, exchange or
payment, and any Debenture issued is registered in the name of Cede & Co.,
or such other name as requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.
No. ________________ $_____________
CUSIP No. _________
PACIFICORP
8 3/8% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE,
SERIES A
PACIFICORP, a corporation duly organized and existing under the
laws of the State of Oregon (herein referred to as the "Company", which
term includes any successor corporation under the Indenture), for value
received, hereby promises to pay to _____________________, or registered
assigns, the principal sum of $__________ Dollars on June 30, 2035, and to
pay interest on such principal sum from and including __________ ___, 1995
or from the most recent interest payment date (each such date, an "Interest
Payment Date") to which interest has been paid or duly provided for,
payable quarterly in arrears on March 31, June 30, September 30 and
December 31 of each year, commencing on June 30, 1995, at the rate of 8
3/8% per annum until the principal hereof shall have become due and
payable, and on any overdue principal and premium, if any, and (to the
extent that payment of such interest is enforceable under applicable law)
on any overdue installment of interest at the same rate per annum. The
amount of interest payable on any Interest Payment Date shall be computed
on the basis of a 360-day year of twelve 30-day months and, for any period
shorter than a full calendar month, on the basis of the actual number of
days elapsed in such period. In the event that any date on which interest
is payable on this Debenture is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding day which
is a Business Day (and without any interest or other payment in respect of
any such delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if
made on such date. The interest installment so payable, and punctually paid
or duly provided for on any Interest Payment Date will, as provided in the
Indenture, be paid to the person in whose name this Debenture (or one or
more Predecessor Debentures, as defined in the Indenture) is registered at
the close of business on the Business Day next preceding that Interest
Payment Date (each, a "Record Date"); provided, however, that if this
Debenture shall not remain in the form of a Global Debenture, the Company
shall have the right to select another record date, which shall be any day
prior to, but not more than 15 days preceding, an Interest Payment Date.
Any such interest installment not punctually paid or duly provided for on
any Interest Payment Date shall forthwith cease to be payable to the
registered holder on the relevant Record Date, and may be paid to the
person in whose name this Debenture (or one or more Predecessor Debentures)
is registered at the close of business on a special record date to be fixed
by the Trustee for the payment of such defaulted interest, notice whereof
shall be given to the registered holders of this series of Debentures not
less than 10 days prior to such special record date, or may be paid at any
time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which Debentures of this series may then be
listed, and upon such notice as may be required by such exchange, all as
more fully provided in the Indenture hereinafter referred to; provided,
however, that interest shall not be considered payable by the Company on
any Interest Payment Date falling within an Extension Period (as defined
below), unless the Company has elected to make a full or partial payment of
interest accrued on this Debenture on that Interest Payment Date. Any
partial payment of interest accrued on this series of Debentures on any
Interest Payment Date falling within an Extension Period shall be paid pro
rata to the registered holder of this Debenture based upon the principal
amount of this Debenture in relation to the aggregate principal amount of
4
<PAGE>
all Debentures of this series then outstanding. The principal of and the
interest on this Debenture shall be payable at the office or agency of the
Company maintained for that purpose in the Borough of Manhattan, The City
of New York, in any coin or currency of the United States of America which
at the time of payment is legal tender for payment of public and private
debts; provided, however, that payment of interest may be made at the
option of the Company by check mailed to the registered holder at such
address as shall appear in the Debenture Register or, with respect to a
registered holder of $1,000,000 or more in aggregate principal amount of
Debentures who has delivered a written request to the Trustee at least 14
days prior to the relevant Interest Payment Date electing to have payments
made by wire transfer to a designated account in the United States, by wire
transfer of immediately available funds to such designated account.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinated and junior in right of payment to
the prior payment in full of all Senior Indebtedness, and this Debenture is
issued subject to the provisions of the Indenture with respect thereto.
Each holder of this Debenture, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee
on its behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c) appoints
the Trustee its attorney-in-fact for any and all such purposes. Each holder
hereof, by its acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon those
provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been
signed by or on behalf of the Trustee.
The provisions of this Debenture are contained on the reverse
side hereof and such continued provisions shall for all purposes have the
same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Instrument to be
executed.
Dated: ______________________
PACIFICORP
By
--------------------------------
Its:
Attest:
- ----------------------------------
Secretary
5
<PAGE>
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures
described in the within-mentioned Indenture.
THE BANK OF NEW YORK
- ---------------------------------- -----------------------------------
as Trustee or as Authentication Agent
By
- ---------------------------------- -----------------------------------
Authorized Signatory Authorized Signatory
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of debentures
of the Company (herein sometimes referred to as the "Debentures"),
specified in the Indenture (as defined below), all issued or to be issued
in one or more series under and pursuant to an Indenture dated as of May 1,
1995 duly executed and delivered between the Company and THE BANK OF NEW
YORK, a New York banking corporation duly organized and existing under the
laws of the State of New York, as Trustee (herein referred to as the
"Trustee"), as supplemented by the First Supplemental Indenture dated as of
May 1, 1995 between the Company and the Trustee (such Indenture as so
supplemented being hereinafter referred to as the "Indenture"), to which
Indenture and all indentures supplemental thereto reference is hereby made
for a description of the rights, limitations of rights, obligations, duties
and immunities thereunder of the Trustee, the Company and the holders of
the Debentures. By the terms of the Indenture, the Debentures are issuable
in series which may vary as to amount, date of maturity, rate of interest
and in other respects as in the Indenture provided. This series of
Debentures is limited in aggregate principal amount as specified in the
First Supplemental Indenture.
Subject to the terms of Article Three of the Indenture, the
Company shall have the right to redeem the Debentures of this series at the
option of the Company, without premium or penalty, in whole or in part at
any time and from time to time on or after May 31, 2000 (an "Optional
Redemption"), at a redemption price equal to 100% of the principal amount
of the Debentures of this series to be redeemed plus any accrued and unpaid
interest thereon to the date of such redemption. If the Debentures of this
series are only partially redeemed by the Company pursuant to an Optional
Redemption, the Debentures of this series will be redeemed by lot or by any
other method utilized by the Trustee.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures of this series for the unredeemed portion hereof
will be issued in the name of the holder hereof upon the cancellation
hereof.
In case an Event of Default, as defined in the Indenture, with
respect to the Debentures of this series shall have occurred and be
continuing, the principal of all of the Debentures of this series may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions for defeasance at any time of
the entire indebtedness of the Debentures of this series upon compliance by
the Company with certain conditions set forth therein.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the
time outstanding, as defined in the Indenture, to execute supplemental
indentures for the purpose of adding any provisions to, changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying in any manner the rights of the
holders of the Debentures; provided, however, that no such supplemental
indenture
6
<PAGE>
shall (i) extend the fixed maturity of any Debentures of any series, reduce
the principal amount thereof, reduce the rate or extend the time of payment
of interest thereon or reduce any premium payable upon the redemption
thereof, without the consent of the holder of each Debenture so affected or
(ii) reduce the aforesaid percentage of Debentures, the holders of which
are required to consent to any such supplemental indenture, without the
consent of the holders of each Debenture then outstanding and affected
thereby. The Indenture also contains provisions permitting the holders of a
majority in aggregate principal amount of the Debentures of all series at
the time outstanding affected thereby, on behalf of the holders of the
Debentures of such series, to waive any past default in the performance of
any of the covenants contained in the Indenture, or established pursuant to
the Indenture with respect to such series, and its consequences, except a
default in the payment of the principal of or premium, if any, or interest
on any of the Debentures of such series, which default may be waived by the
unanimous consent of the holders affected. Any such consent or waiver by
the registered holder of this Debenture (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such holder and upon all
future holders and owners of this Debenture and of any Debenture issued in
exchange herefor or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Debenture at the time and place and at the rate and in the
money herein prescribed.
Subject to Section 4.06 of the Indenture, so long as the Company
shall not be in default in the payment of interest on this series of
Debentures, the Company shall have the right, at any time during the term
of this series of Debentures, to extend any interest payment period of this
series of Debentures at any time and from time to time for a period not to
exceed 20 consecutive calendar quarters from the last Interest Payment Date
to which interest was paid in full (each, an "Extension Period"), provided
that such Extension Period ends on another Interest Payment Date. No
interest shall be due and payable during an Extension Period, but on the
Interest Payment Date occurring at the end of each Extension Period the
Company shall pay to the holders of record on the Record Date for such
Interest Payment Date (regardless of who the holders of record may have
been on other dates during such Extension Period) all accrued and unpaid
interest on this series of Debentures, together with interest thereon, at
the rate specified for this series of Debentures. Prior to the termination
of any Extension Period, the Company may pay all or (subject to the
provisions concerning pro rata payment in the penultimate sentence of the
first paragraph on the face of this Debenture) any portion of the interest
accrued on this series of Debentures on any Interest Payment Date to
holders of record on the Record Date for that Interest Payment Date or may
from time to time further extend such Extension Period, provided that any
such Extension Period, together with all such previous and further
extensions thereof, shall not exceed 20 consecutive calendar quarters. If
the Company shall elect to pay all of the interest accrued on this series
of Debentures on an Interest Payment Date during an Extension Period, that
Extension Period shall automatically terminate on that Interest Payment
Date. Upon the termination of an Extension Period and the payment of all
amounts of interest then due, the Company may commence a new Extension
Period, subject to the foregoing requirements.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the registered holder
hereof on the Debenture Register of the Company, upon surrender of this
Debenture for registration of transfer at the office or agency of the
Company designated for such purpose in the Borough of Manhattan, The City
of New York accompanied by a written instrument or instruments of transfer
in form satisfactory to the Company and the Trustee duly executed by the
registered holder hereof or its attorney duly authorized in writing, and
thereupon one or more new Debentures of authorized denominations and for
the same aggregate principal amount and series will be issued to the
designated transferee or transferees. No service charge will be made for
any such transfer, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in relation thereto.
7
<PAGE>
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and any Debenture
Registrar may deem and treat the registered holder hereof as the absolute
owner hereof (whether or not this Debenture shall be overdue and
notwithstanding any notice of ownership or writing hereon made by anyone
other than the Debenture Registrar) for the purpose of receiving payment of
or on account of the principal hereof, and interest due hereon and for all
other purposes, and neither the Company nor the Trustee nor any paying
agent nor any Debenture Registrar shall be affected by any notice to the
contrary.
No recourse shall be had for the payment of the principal of or
the interest on this Debenture, or for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the
issuance hereof, expressly waived and released.
This Global Debenture is exchangeable for Debentures in
certificated form only under certain limited circumstances set forth in the
Indenture. The Debentures of this series are issuable only in registered
form without coupons in denominations of $25 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
herein and therein set forth, Debentures of this series so issued are
exchangeable for a like aggregate principal amount of Debentures of this
series of a different authorized denomination, as requested by the holder
surrendering the same.
All terms used in this Debenture which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
ARTICLE FIVE
Original Issue of Series A Debentures
Series A Debentures in the aggregate principal amount of
$120,000,000 may, upon execution of this First Supplemental Indenture, or
from time to time thereafter, be executed by the Company and delivered to
the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver such Debentures to or upon the written order of
the Company, signed by its Chairman, President or any Vice President and
its Treasurer or an Assistant Treasurer, without any further action by the
Company.
ARTICLE SIX
Miscellaneous Provisions
SECTION 6.01. Except as otherwise expressly provided in this
First Supplemental Indenture or in the form of Series A Debenture or
otherwise clearly required by the context hereof or thereof, all terms used
herein or in the form of Series A Debenture that are defined in the
Indenture shall have the several meanings respectively assigned to them
thereby.
SECTION 6.02. The Indenture, as supplemented by this First
Supplemental Indenture, is in all respects ratified and confirmed, and this
First Supplemental Indenture shall be deemed part of the Indenture in the
manner and to the extent herein and therein provided.
SECTION 6.03. The recitals herein contained are made by the
Company and not by the Trustee, and the Trustee assumes no responsibility
for the correctness thereof. The Trustee makes no representation as to the
validity or sufficiency of this First Supplemental Indenture.
SECTION 6.04. This First Supplemental Indenture may be executed
in any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
8
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, on the date or dates indicated
in the acknowledgments and as of the day and year first above written.
PACIFICORP
By: RICHARD T. O'BRIEN
----------------------------------
Richard T. O'Brien, Vice President
Attest:
SALLY A. NOFZIGER
- ----------------------------------
Sally A. Nofziger, Secretary
THE BANK OF NEW YORK, as Trustee
By: VIVIAN GEORGES
----------------------------------
Vivian Georges
Assistant Vice President
Attest:
PAUL J. SCHMALZEL
- ----------------------------------
Paul J. Schmalzel
Assistant Treasurer
9
<PAGE>
STATE OF NEW YORK )
) ss.
COUNTY OF )
On the 30th day of May, 1995, before me personally came Vivian
Georges and Paul Schmalzel to me known, who, being by me duly sworn, did
depose and say that they reside at New York, New York; that they are AVP
and AT, respectively, of The Bank of New York, one of the corporations
described in and which executed the above instrument; that they know the
corporate seal of the corporation; that the seal affixed to that instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of that corporation and that they signed their names thereto by
like authority.
WILLIAM J. CASSELS
-----------------------------------
NOTARY PUBLIC
My Commission Expires: May 18, 1996
STATE OF OREGON )
) ss.
COUNTY OF MULTNOMAH )
On the 26th day of May, 1995, before me personally came Richard
T. O'Brien and Sally A. Nofziger to me known, who, being by me duly sworn,
did depose and say that they reside at Portland, Oregon; that they are a
Vice President and Secretary, respectively, of PacifiCorp, one of the
corporations described in and which executed the above instrument; that
they know the corporate seal of the corporation; that the seal affixed to
that instrument is such corporate seal; that it was so affixed by authority
of the Board of Directors of that corporation and that they signed their
names thereto by like authority.
SHERYL LEE STRATTON
-----------------------------------
NOTARY PUBLIC
My Commission Expires: May 25, 1996
<PAGE>
PACIFICORP
AND
THE BANK OF NEW YORK,
as Trustee
--------------------
SECOND SUPPLEMENTAL INDENTURE
Dated as of October 1, 1995
TO
INDENTURE
Dated as of May 1, 1995
--------------------
8.55% Junior Subordinated Deferrable Interest Debentures, Series B
<PAGE>
SECOND SUPPLEMENTAL INDENTURE, dated as of the 1st day of
October, 1995 (the "Second Supplemental Indenture"), between PACIFICORP, a
corporation duly organized and existing under the laws of the State of
Oregon (hereinafter sometimes referred to as the "Company"), and THE BANK
OF NEW YORK, a New York banking corporation, as trustee (hereinafter
sometimes referred to as the "Trustee") (under the Indenture dated as of
May 1, 1995 between the Company and the Trustee (the "Indenture"; all terms
used and not defined herein are used as defined in the Indenture)).
WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of its junior subordinated
debentures (the "Debentures"), which Debentures are to be issued from time
to time in such series as may be determined by the Company under the
Indenture, in an unlimited aggregate principal amount which may be
authenticated and delivered thereunder as in the Indenture provided; and
WHEREAS, the Company and the Trustee previously executed and
delivered a First Supplemental Indenture dated as of May 1, 1995 (the
"First Supplemental Indenture") and in accordance therewith the Company
issued a series of Debentures designated the "8 3/8% Junior Subordinated
Deferrable Interest Debentures, Series A, Due 2025" in the aggregate
principal amount of $120,000,000; and
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its Debentures
to be known as its 8.55% Junior Subordinated Deferrable Interest
Debentures, Series B (such series being hereinafter referred to as the
"Series B Debentures"), the form and substance of such Series B Debentures
and the terms, provisions and conditions thereof to be set forth as
provided in the Indenture and this Second Supplemental Indenture; and
WHEREAS, the Company desires and has requested the Trustee to
join with it in the execution and delivery of this Second Supplemental
Indenture, and all requirements necessary to make this Second Supplemental
Indenture a valid instrument, in accordance with its terms, and to make the
Series B Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company, have been
performed and fulfilled, and the execution and delivery hereof have been in
all respects duly authorized;
NOW, THEREFORE, in consideration of the purchase and acceptance
of the Series B Debentures by the holders thereof, and for the purpose of
setting forth, as provided in the Indenture, the form and substance of the
Series B Debentures and the terms, provisions and conditions thereof, the
Company covenants and agrees with the Trustee as follows:
ARTICLE ONE
General Terms and Conditions of
the Series A Debentures
SECTION 1.01. There shall be and is hereby authorized a series of
Debentures designated the "8.55% Junior Subordinated Deferrable Interest
Debentures, Series B," limited in aggregate principal amount to
$125,000,000, which amount shall be as set forth in any written order of
the Company for the authentication and delivery of Series B Debentures. The
Series B Debentures shall mature and the principal shall be due and
payable, together with all accrued and unpaid interest thereon, on December
31, 2025, and shall be issued in the form of registered Series B Debentures
without coupons.
SECTION 1.02. Principal and interest on the Series B Debentures
will be payable, the transfer of such Series B Debentures will be
registrable and such Series B Debentures will be exchangeable for Series B
Debentures bearing identical terms and provisions at the office or agency
of the Company maintained for that purpose in the Borough of Manhattan, The
City of New York; provided, however, that payment of interest may be made
at the option of the Company by check mailed to the registered holder at
such address as shall appear in the Debenture Register or, with respect to
a registered holder of $1,000,000 or more in aggregate principal amount of
Series B Debentures who has delivered a written request to the Trustee at
least 14 days prior to the relevant Interest Payment Date (as defined in
Section 1.03 below) electing to have payments made by wire
<PAGE>
transfer to a designated account in the United States, by wire transfer of
immediately available funds to such designated account.
SECTION 1.03. Each Series B Debenture will bear interest at the
rate of 8.55% per annum from and including the original date of issuance or
from the most recent Interest Payment Date referred to below to which
interest has been paid or duly provided for until the principal thereof
becomes due and payable, and on any overdue principal and (to the extent
that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the same rate per annum, payable
quarterly in arrears on March 31, June 30, September 30 and December 31 of
each year (each, an "Interest Payment Date"), commencing on December 31,
1995, to the person in whose name such Series B Debenture or any
predecessor Series B Debenture is registered at the close of business on
the March 15, June 15, September 15 or December 15, respectively, preceding
that Interest Payment Date (each, a "Record Date"). Any such interest
installment not punctually paid or duly provided for on any Interest
Payment Date shall forthwith cease to be payable to the registered holder
on the relevant Record Date, and may be paid to the person in whose name
the Series B Debenture (or one or more predecessor Debentures) is
registered at the close of business on a special record date to be fixed by
the Trustee for the payment of such defaulted interest, notice whereof
shall be given to the registered holders of the Series B Debentures not
less than 10 days prior to such special record date, or may be paid at any
time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Series B Debentures may be listed, and
upon such notice as may be required by such exchange, all as more fully
provided in the Indenture; provided, however, that interest (other than
interest described in the next sentence) shall not be considered payable by
the Company on any Interest Payment Date falling within an Extension Period
(as defined in Section 3.01 below), unless the Company has elected to make
a full or partial payment of interest accrued on the Series B Debentures on
that Interest Payment Date. Any partial payment of interest accrued on the
Series B Debentures on any Interest Payment Date falling within an
Extension Period shall be paid pro rata to such registered holders based
upon the principal amount of Series B Debentures then held by such
registered holders. In addition, each Series B Debenture will bear interest
at the rate of 7.92% per annum from and including August 6, 1995 to and
including October 4, 1995, payable on December 31, 1995 to the person in
whose name such Series B Debenture or any predecessor Series B Debenture is
registered at the close of business on December 15, 1995.
The amount of interest payable for any period will be computed on
the basis of a 360-day year of twelve 30-day months and, for any period
shorter than a full calendar month, on the basis of the actual number of
days elapsed in such period. In the event that any date on which interest
is payable on the Series B Debentures is not a Business Day, then payment
of interest payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other payment in
respect of any such delay), except that, if such Business Day is in the
next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on such date.
ARTICLE TWO
Redemption of the Series B Debentures
Subject to the terms of Article Three of the Indenture, the
Company shall have the right to redeem the Series B Debentures, in whole or
in part, from time to time, on or after May 31, 1997, at a redemption price
equal to 100% of the principal amount of Series B Debentures to be redeemed
plus any accrued and unpaid interest thereon to the date of such
redemption. If the Series B Debentures are only partially redeemed pursuant
to this Section, the Series B Debentures will be redeemed by lot or by any
other method utilized by the Trustee.
ARTICLE THREE
Extension of Interest Payment Period
SECTION 3.01. Subject to Section 4.06 of the Indenture, so long
as the Company shall not be in default in the payment of interest on the
Series B Debentures, the Company shall have the right, at any time during
the term of the Series B Debentures, to extend any interest payment period
of such Series B Debentures at any time and from time to time for a period
not to exceed 20
2
<PAGE>
consecutive calendar quarters from the last Interest Payment Date to which
interest was paid in full (each, an "Extension Period"), provided that such
Extension Period ends on another Interest Payment Date. No interest shall
be due and payable during an Extension Period, but on the Interest Payment
Date occurring at the end of each Extension Period the Company shall pay to
the holders of record on the Record Date for such Interest Payment Date
(regardless of who the holders of record may have been on other dates
during the Extension Period) all accrued and unpaid interest on the Series
B Debentures, together with interest thereon at the rate specified for the
Series B Debentures. Prior to the termination of any Extension Period, the
Company may pay all or (subject to the last sentence of the first paragraph
of Section 1.03 above) any portion of the interest accrued on the Series B
Debentures on any Interest Payment Date to holders of record on the Record
Date for that Interest Payment Date or may from time to time further extend
such Extension Period, provided that any such Extension Period, together
with all such previous and further extensions thereof, shall not exceed 20
consecutive calendar quarters. If the Company shall elect to pay all of the
interest accrued on the Series B Debentures on an Interest Payment Date
during an Extension Period, that Extension Period shall automatically
terminate on that Interest Payment Date. Upon the termination of an
Extension Period and the payment of all amounts of interest then due, the
Company may commence a new Extension Period, subject to the foregoing
requirements.
SECTION 3.02. The Company shall give the Trustee written notice
of (i) any election by the Company to initiate an Extension Period and the
duration thereof, (ii) any election by the Company to extend an Extension
Period beyond the Interest Payment Date on which that Extension Period is
then scheduled to terminate and the duration of such extension and (iii)
any election by the Company to make a full or partial payment of interest
accrued on the Series B Debentures on any Interest Payment Date during an
Extension Period and the amount of such payment. In no event shall such
notice by the Company be given less than 15 Business Days prior to the
later of (A) the Record Date next preceding the applicable Interest Payment
Date and (B) five Business Days prior to such Interest Payment Date. Upon
receipt of any such notice, the Trustee shall give written notice of the
Company's election by mail to the Series B Debentureholders not less than
10 Business Days prior to such Interest Payment Date. The Company shall
make a public announcement of any such election in accordance with New York
Stock Exchange rules not less than five Business Days prior to such Record
Date.
ARTICLE FOUR
Form of Series B Debenture
The Series B Debentures and the Trustee's Certificate of
Authentication to be endorsed thereon are to be substantially in the
following forms:
(FORM OF FACE OF DEBENTURE)
[If the Debenture is to be a Global Debenture, insert - This
Debenture is a Global Debenture within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depository or a
nominee of a Depository. This Debenture is exchangeable for Debentures
registered in the name of a person other than the Depository or its nominee
only in the limited circumstances described in the Indenture, and no
transfer of this Debenture (other than a transfer of this Debenture as a
whole by the Depository to a nominee of the Depository or by a nominee of
the Depository to the Depository or another nominee of the Depository) may
be registered except in limited circumstances.
Unless this Debenture is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York)
to the issuer or its agent for registration of transfer, exchange or
payment, and any Debenture issued is registered in the name of Cede & Co.
or such other name as requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.]
3
<PAGE>
No. ________________ Number of 8.55% Junior Subordinated Deferrable
Interest Debentures, Series B, $25 Principal Amount Each:
------------ (------------------------------------------)
CUSIP No. 695114611
PACIFICORP
8.55%
JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE,
SERIES B
PACIFICORP, a corporation duly organized and existing under the
laws of the State of Oregon (herein referred to as the "Company", which
term includes any successor corporation under the Indenture), for value
received, hereby promises to pay to _____________________ or registered
assigns, the principal sum equal to the amount obtained by multiplying the
number of 8.55% Junior Subordinated Deferrable Interest Debentures, Series
B, $25 principal amount each, set forth above by $25, on December 31, 2025,
and to pay interest on such principal sum from and including October 5,
1995 or from the most recent interest payment date (each such date, an
"Interest Payment Date") to which interest has been paid or duly provided
for, payable quarterly in arrears on March 31, June 30, September 30 and
December 31 of each year, commencing on December 31, 1995, at the rate of
8.55% per annum until the principal hereof shall have become due and
payable, and on any overdue principal and premium, if any, and (to the
extent that payment of such interest is enforceable under applicable law)
on any overdue installment of interest at the same rate per annum. The
amount of interest payable on any Interest Payment Date shall be computed
on the basis of a 360-day year of twelve 30-day months and, for any period
shorter than a full calendar month, on the basis of the actual number of
days elapsed in such period. In the event that any date on which interest
is payable on this Debenture is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding day which
is a Business Day (and without any interest or other payment in respect of
any such delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if
made on such date. The interest installment so payable, and punctually paid
or duly provided for on any Interest Payment Date will, as provided in the
Indenture, be paid to the person in whose name this Debenture (or one or
more Predecessor Debentures, as defined in the Indenture) is registered at
the close of business on the March 15, June 15, September 15 or December
15, respectively, preceding that Interest Payment Date (each, a "Record
Date"). Any such interest installment not punctually paid or duly provided
for on any Interest Payment Date shall forthwith cease to be payable to the
registered holder on the relevant Record Date, and may be paid to the
person in whose name this Debenture (or one or more Predecessor Debentures)
is registered at the close of business on a special record date to be fixed
by the Trustee for the payment of such defaulted interest, notice whereof
shall be given to the registered holders of this series of Debentures not
less than 10 days prior to such special record date, or may be paid at any
time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Debentures may then be listed, and
upon such notice as may be required by such exchange, all as more fully
provided in the Indenture hereinafter referred to; provided, however, that
interest (other than Pre-Issuance Accrued Interest (as defined below))
shall not be considered payable by the Company on any Interest Payment Date
falling within an Extension Period (as defined below), unless the Company
has elected to make a full or partial payment of interest accrued on this
Debenture on that Interest Payment Date. Any partial payment of interest
accrued on this series of Debentures on any Interest Payment Date falling
within an Extension Period shall be paid pro rata to the registered holder
of this Debenture based upon the principal amount of this Debenture
<PAGE>
in relation to the aggregate principal amount of all Debentures of this
series then outstanding. In addition, this Debenture will bear interest at
the rate of 7.92% per annum from and including August 6, 1995 to and
including October 4, 1995, payable on December 15, 1995 ("Pre-Issuance
Accrued Interest") to the person in whose name this Debenture (or one or
more Predecessor Debentures) is registered on the close of business on
December 15, 1995. The principal of (and premium, if any) and the interest
on this Debenture shall be payable at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New
York, in any coin or currency of the United States of America which at the
time of payment is legal tender for payment of public and private debts;
provided, however, that payment of interest may be made at the option of
the Company by check mailed to the registered holder at such address as
shall
4
<PAGE>
appear in the Debenture Register or, with respect to a registered holder of
$1,000,000 or more in aggregate principal amount of Debentures who has
delivered a written request to the Trustee at least 14 days prior to the
relevant Interest Payment Date electing to have payments made by wire
transfer to a designated account in the United States, by wire transfer of
immediately available funds to such designated account.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinated and junior in right of payment to
the prior payment in full of all Senior Indebtedness, and this Debenture is
issued subject to the provisions of the Indenture with respect thereto.
Each holder of this Debenture, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee
on its behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c) appoints
the Trustee its attorney-in-fact for any and all such purposes. Each holder
hereof, by its acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon those
provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been
signed by or on behalf of the Trustee.
The provisions of this Debenture are contained on the reverse
side hereof and such continued provisions shall for all purposes have the
same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Instrument to be
executed.
Dated: October 12, 1995
PACIFICORP
By
-------------------------------------
Richard T. O'Brien, Senior Vice President
and Chief Financial Officer
Attest:
- ----------------------------------
Sally A. Nofziger, Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures
described in the within-mentioned Indenture.
THE BANK OF NEW YORK
- ---------------------------------- -----------------------------------
as Trustee or as Authentication Agent
By
- ---------------------------------- -----------------------------------
Authorized Signatory Authorized Signatory
5
<PAGE>
(REVERSE)
8.55% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE,
SERIES B
(continued)
This Debenture is one of a duly authorized series of debentures
of the Company (herein sometimes referred to as the "Debentures"),
specified in the Indenture (as defined below), all issued or to be issued
in one or more series under and pursuant to an Indenture dated as of May 1,
1995 duly executed and delivered between the Company and THE BANK OF NEW
YORK, a New York banking corporation, as Trustee (herein referred to as the
"Trustee"), as supplemented by the First Supplemental Indenture dated as of
May 1, 1995 and the Second Supplemental Indenture dated as of October 1,
1995 between the Company and the Trustee (such Indenture as so supplemented
being hereinafter referred to as the "Indenture"), to which Indenture and
all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the holders of the
Debentures. By the terms of the Indenture, the Debentures are issuable in
series which may vary as to amount, date of maturity, rate of interest and
in other respects as in the Indenture provided. This series of Debentures
is limited in aggregate principal amount as specified in the Second
Supplemental Indenture.
Subject to the terms of Article Three of the Indenture, the
Company shall have the right to redeem the Debentures of this series at the
option of the Company, without premium or penalty, in whole or in part at
any time and from time to time on or after May 31, 1997 (an "Optional
Redemption"), at a redemption price equal to 100% of the principal amount
of the Debentures of this series to be redeemed plus any accrued and unpaid
interest thereon to the date of such redemption. If the Debentures of this
series are only partially redeemed by the Company pursuant to an Optional
Redemption, the Debentures of this series will be redeemed by lot or by any
other method utilized by the Trustee.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures of this series for the unredeemed portion hereof
will be issued in the name of the holder hereof upon the cancellation
hereof.
In case an Event of Default, as defined in the Indenture, with
respect to the Debentures of this series shall have occurred and be
continuing, the principal of all of the Debentures of this series may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions for defeasance at any time of
the entire indebtedness of the Debentures of this series upon compliance by
the Company with certain conditions set forth therein.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the
time outstanding, as defined in the Indenture, to execute supplemental
indentures for the purpose of adding any provisions to, changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying in any manner the rights of the
holders of the Debentures; provided, however, that no such supplemental
indenture shall (i) extend the fixed maturity of any Debentures of any
series, reduce the principal amount thereof, reduce the rate or extend the
time of payment of interest thereon or reduce any premium payable upon the
redemption thereof, without the consent of the holder of each Debenture so
affected or (ii) reduce the aforesaid percentage of Debentures, the holders
of which are required to consent to any such supplemental indenture,
without the consent of the holders of each Debenture then outstanding and
affected thereby. The Indenture also contains provisions permitting the
holders of a majority in aggregate principal amount of the Debentures of
all series at the time outstanding affected thereby, on behalf of the
holders of the Debentures of such series, to waive any past default in the
performance of any of the covenants contained in the Indenture, or
established pursuant to the Indenture with respect to such series, and its
consequences, except a default in the payment of the principal of or
premium, if any, or interest on any of the Debentures of such series, which
default may be waived by the unanimous consent of the holders affected. Any
such consent or waiver by the registered holder of this Debenture (unless
revoked as provided in the Indenture) shall be conclusive and binding upon
6
<PAGE>
such holder and upon all future holders and owners of this Debenture and of
any Debenture issued in exchange herefor or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether or not any
notation of such consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Debenture at the time and place and
at the rate and in the money herein prescribed.
Subject to Section 4.06 of the Indenture, so long as the Company
shall not be in default in the payment of interest on this series of
Debentures, the Company shall have the right, at any time during the term
of this series of Debentures, to extend any interest payment period of this
series of Debentures at any time and from time to time for a period not to
exceed 20 consecutive calendar quarters from the last Interest Payment Date
to which interest was paid in full (each, an "Extension Period"), provided
that such Extension Period ends on another Interest Payment Date. No
interest (other than Pre-Issuance Accrued Interest) shall be due and
payable during an Extension Period, but on the Interest Payment Date
occurring at the end of each Extension Period the Company shall pay to the
holders of record on the Record Date for such Interest Payment Date
(regardless of who the holders of record may have been on other dates
during such Extension Period) all accrued and unpaid interest on this
series of Debentures, together with interest thereon at the rate specified
for this series of Debentures. Prior to the termination of any Extension
Period, the Company may pay all or any portion of the interest accrued on
this series of Debentures on any Interest Payment Date to holders of record
on the Record Date for that Interest Payment Date or may from time to time
further extend such Extension Period, provided that any such Extension
Period, together with all such previous and further extensions thereof,
shall not exceed 20 consecutive calendar quarters. If the Company shall
elect to pay all of the interest accrued on this series of Debentures on an
Interest Payment Date during an Extension Period, that Extension Period
shall automatically terminate on that Interest Payment Date. Upon the
termination of an Extension Period and the payment of all amounts of
interest then due, the Company may commence a new Extension Period, subject
to the foregoing requirements.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the registered holder
hereof on the Debenture Register of the Company, upon surrender of this
Debenture for registration of transfer at the office or agency of the
Company designated for such purpose in the Borough of Manhattan, The City
of New York, accompanied by a written instrument or instruments of transfer
in form satisfactory to the Company and the Trustee duly executed by the
registered holder hereof or its attorney duly authorized in writing, and
thereupon one or more new Debentures of authorized denominations and for
the same aggregate principal amount and series will be issued to the
designated transferee or transferees. No service charge will be made for
any such transfer, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and any Debenture
Registrar may deem and treat the registered holder hereof as the absolute
owner hereof (whether or not this Debenture shall be overdue and
notwithstanding any notice of ownership or writing hereon made by anyone
other than the Debenture Registrar) for the purpose of receiving payment of
or on account of the principal hereof and premium, if any, and interest due
hereon and for all other purposes, and neither the Company nor the Trustee
nor any paying agent nor any Debenture Registrar shall be affected by any
notice to the contrary.
No recourse shall be had for the payment of the principal of or
the interest on this Debenture, or for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the
issuance hereof, expressly waived and released.
The Debentures of this series are issuable in registered form
without coupons in denominations of $25 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations herein and
therein set forth, Debentures of this series so issued are exchangeable
7
<PAGE>
for a like aggregate principal amount of Debentures of this series of a
different authorized denomination, as requested by the holder surrendering
the same.
All terms used in this Debenture which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
ARTICLE FIVE
Original Issue of Series B Debentures
Series B Debentures in the aggregate principal amount of
$125,000,000 may, upon execution of this Second Supplemental Indenture, or
from time to time thereafter, be executed by the Company and delivered to
the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver such Debentures to or upon the written order of
the Company, signed by its Chairman, President or any Vice President and
its Treasurer or an Assistant Treasurer, without any further action by the
Company.
ARTICLE SIX
Miscellaneous Provisions
SECTION 6.01. Except as otherwise expressly provided in this
Second Supplemental Indenture or in the form of Series B Debenture or
otherwise clearly required by the context hereof or thereof, all terms used
herein or in the form of Series B Debenture that are defined in the
Indenture shall have the several meanings respectively assigned to them
thereby.
SECTION 6.02. The Indenture, as supplemented by the First
Supplemental Indenture and this Second Supplemental Indenture, is in all
respects ratified and confirmed, and this Second Supplemental Indenture
shall be deemed part of the Indenture in the manner and to the extent
herein and therein provided.
SECTION 6.03. The recitals herein contained are made by the
Company and not by the Trustee, and the Trustee assumes no responsibility
for the correctness thereof. The Trustee makes no representation as to the
validity or sufficiency of this Second Supplemental Indenture.
SECTION 6.04. This Second Supplemental Indenture may be executed
in any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
8
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, on the date or dates indicated
in the acknowledgments and as of the day and year first above written.
PACIFICORP
By: RICHARD T. O'BRIEN
-------------------------------
Richard T. O'Brien, Senior Vice
President and Chief Financial Officer
Attest:
LENORE M. MARTIN
- -------------------------------------
Lenore M. Martin, Assistant Secretary
THE BANK OF NEW YORK, as Trustee
By: VIVIAN GEORGES
-------------------------------
Attest:
NANCY GILL
- --------------------------------------
9
<PAGE>
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On the 10th day of October, 1995, before me personally came
Vivian Georges and Nancy Gill to me known, who, being by me duly sworn,
did depose and say that they reside in Brooklyn, New York, that they are
Assistant Vice President and Assistant Treasurer, respectively, of The Bank
of New York, one of the corporations described in and which executed the
above instrument; that they know the corporate seal of the corporation;
that the seal affixed to that instrument is such corporate seal; that it
was so affixed by authority of the Board of Directors of that corporation
and that they signed their names thereto by like authority.
IRVING C. APAR
-----------------------------------
NOTARY PUBLIC
My Commission Expires: Dec. 31, 1996
STATE OF OREGON )
) ss.
COUNTY OF MULTNOMAH )
On the 10th day of October, 1995, before me personally came
Richard T. O'Brien and Lenore M. Martin to me known, who, being by me duly
sworn, did depose and say that they reside at Portland, Oregon; that they
are the Senior Vice President and Chief Financial Officer and an Assistant
Secretary, respectively, of PacifiCorp, one of the corporations described
in and which executed the above instrument; that they know the corporate
seal of the corporation; that the seal affixed to that instrument is such
corporate seal; that it was so affixed by authority of the Board of
Directors of that corporation and that they signed their names thereto by
like authority.
CHARLENE A. ARBACH
-----------------------------------
NOTARY PUBLIC
My Commission Expires: 2/13/98
10
PACIFICORP
AND
THE BANK OF NEW YORK,
as Trustee
--------------------
THIRD SUPPLEMENTAL INDENTURE
Dated as of May __, 1996
TO
INDENTURE
Dated as of May 1, 1995
--------------------
____% Junior Subordinated Deferrable Interest Debentures, Series C
<PAGE>
THIRD SUPPLEMENTAL INDENTURE, dated as of the ____ day of May,
1996 (the "Third Supplemental Indenture"), between PACIFICORP, a
corporation duly organized and existing under the laws of the State of
Oregon (hereinafter sometimes referred to as the "Company"), and THE BANK
OF NEW YORK, a New York banking corporation, as trustee (hereinafter
sometimes referred to as the "Trustee") (under the Indenture dated as of
May 1, 1995 between the Company and the Trustee (the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of its junior subordinated
debentures (the "Debentures"), which Debentures are to be issued from time
to time in such series as may be determined by the Company under the
Indenture, in an unlimited aggregate principal amount which may be
authenticated and delivered thereunder as in the Indenture provided; and
WHEREAS, the Company and the Trustee previously executed and
delivered a First Supplemental Indenture dated as of May 1, 1995 (the
"First Supplemental Indenture") and in accordance therewith the Company
issued a series of Debentures designated the "8 3/8% Junior Subordinated
Deferrable Interest Debentures, Series A, Due 2025" in the aggregate
principal amount of $120,000,000; and
WHEREAS, the Company and the Trustee previously executed and
delivered a Second Supplemental Indenture dated as of October 1, 1995 (the
"Second Supplemental Indenture") and in accordance therewith the Company
issued a series of Debentures designated the "8.55% Junior Subordinated
Deferrable Interest Debentures, Series B" in the aggregate principal amount
of $55,825,925; and
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its Debentures
to be known as its ____% Junior Subordinated Deferrable Interest
Debentures, Series C (such series being hereinafter referred to as the
"Series C Debentures"), which Series C Debentures will be issued to
evidence a loan made to the Company of the proceeds from the issuance by
PacifiCorp Capital I, a Delaware business trust (the "Trust") of preferred
undivided beneficial interests in the assets of the Trust (the "Preferred
Securities") and common undivided beneficial interests in the assets of the
Trust (the "Common Securities") pursuant to the terms of an Amended and
Restated Trust Agreement (the "Trust Agreement") dated as of May __, 1996
among the Company, as Depositor, The Bank of New York, as Property Trustee,
The Bank of New York (Delaware), as Delaware Trustee and the Administrative
Trustees named therein (the "Administrative Trustees"), which Trust
Agreement shall be substantially in the form attached hereto as Annex A,
the form and substance of such Series C Debentures and the terms,
provisions and conditions thereof to be set forth as provided in the
Indenture and this Third Supplemental Indenture; and
WHEREAS, the Company desires and has requested the Trustee to
join with it in the execution and delivery of this Third Supplemental
Indenture, and all requirements necessary to make this Third Supplemental
Indenture a valid instrument, in accordance with its terms, and to make the
Series C Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company, have been
<PAGE>
performed and fulfilled, and the execution and delivery hereof have been in
all respects duly authorized;
NOW, THEREFORE, in consideration of the purchase and acceptance
of the Series C Debentures by the holders thereof, and for the purpose of
setting forth, as provided in the Indenture, the form and substance of the
Series C Debentures and the terms, provisions and conditions thereof, the
Company covenants and agrees with the Trustee as follows:
ARTICLE ONE
Additional Definitions
SECTION 1.01. For all purposes of this Third Supplemental
Indenture, capitalized terms used herein without definition shall have the
meanings specified in the Indenture.
SECTION 1.02. The terms defined in this Section, for all
purposes of this Third Supplemental Indenture, shall have the respective
meanings specified in this Section.
"Additional Sums" has the meaning specified in Section 5.05 of
this Third Supplemental Indenture.
"Additional Taxes" means the sum of any additional taxes, duties
and other governmental charges to which the Trust has become subject from
time to time as a result of a Tax Event.
"Common Securities" has the meaning specified in the fourth
recital of this Third Supplemental Indenture.
"Distributions" means amounts payable in respect of the
Preferred Securities as provided in the Trust Agreement.
"Extension Period" has the meaning specified in Section 4.01 of
this Third Supplemental Indenture.
"Guarantee" means the guarantee by the Company of distributions
on the Preferred Securities of the Trust to the extent provided in the
Guarantee Agreement, substantially in the form attached hereto as Annex B.
"Investment Company Event" means, in respect of the Trust, the
receipt by the Trust of an Opinion of Counsel, rendered by a law firm
having a recognized national tax and securities practice, to the effect
that, as a result of the occurrence of a change in law or regulation or a
change in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority (a
"Change in 1940 Act Law"), the Trust is or will be considered an
"investment company" that is required to be registered under the 1940 Act,
which Change in 1940 Act Law becomes effective on or after the date of
original issuance of the Preferred Securities of the Trust.
2
<PAGE>
"1940 Act" means the Investment Company Act of 1940, as amended.
"Preferred Securities" has the meaning specified in the fourth
recital of this Third Supplemental Indenture.
"Property Trustee" means, in respect of the Trust, the
commercial bank or trust company identified as the "Property Trustee" in
the Trust Agreement, solely in its capacity as Property Trustee of the
Trust under the Trust Agreement and not in its individual capacity, or its
successor in interest in such capacity, or any successor property trustee
appointed as therein provided.
"Special Event" means a Tax Event or an Investment Company Event.
"Tax Event" means the receipt by the Trust of an Opinion of
Counsel, rendered by a law firm having a recognized national tax and
securities practice, to the effect that, as a result of any amendment to,
or change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision
or taxing authority thereof or therein, or as a result of any official
administrative pronouncement or judicial decision interpreting or applying
such laws or regulations, which amendment or change is effective or which
pronouncement or decision is announced on or after the date of issuance of
the Preferred Securities of the Trust, there is more than an insubstantial
risk that (i) the Trust is, or will be within 90 days of the date of such
Opinion of Counsel, subject to United States federal income tax with
respect to income received or accrued on the corresponding Series C
Debentures, (ii) interest payable by the Company on the Series C Debentures
is not, or within 90 days of the date of such Opinion of Counsel, will not
be, deductible by PacifiCorp, in whole or in part, for United States
federal income tax purposes or (iii) the Trust is, or will be within 90
days of the date of such Opinion of Counsel, subject to more than a de
minimis amount of other taxes, duties or other governmental charges.
"Trust" has the meaning specified in the fourth recital of this
Third Supplemental Indenture.
"Trust Agreement" has the meaning specified in the fourth
recital of this Third Supplemental Indenture.
ARTICLE TWO
General Terms and Conditions of
the Series C Debentures
SECTION 2.01. There shall be and is hereby authorized a series
of Debentures designated the "____% Junior Subordinated Deferrable Interest
Debentures, Series C," limited in aggregate principal amount to
$____________, which amount shall be as set forth in any written order of
the Company for the authentication and delivery of Series C Debentures. The
Series C Debentures shall mature and the principal shall be due and
payable, together with all accrued and unpaid interest thereon, on May __,
2036; The Series C Debentures shall be issued in the form of registered
Series C Debentures without coupons.
3
<PAGE>
SECTION 2.02. The Series C Debentures shall be issued in
certificated form and registered in the name of the Property Trustee or its
nominee, subject to the exchange of such certificated Series C Debentures
for a Global Debenture as provided in the Trust Agreement. Series C
Debentures represented by a Global Debenture will not be exchangeable for,
and will not otherwise be issuable as, Series C Debentures in certificated
form, except as provided in Section 2.11 of the Indenture. Principal and
interest on the Series C Debentures will be payable, the transfer of such
Series C Debentures will be registrable and such Series C Debentures will
be exchangeable for Series C Debentures bearing identical terms and
provisions at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York; provided,
however, that payment of interest may be made at the option of the Company
by check mailed to the registered holder at such address as shall appear in
the Debenture Register or, with respect to a registered holder of
$1,000,000 or more in aggregate principal amount of Series C Debentures who
has delivered a written request to the Trustee at least 14 days prior to
the relevant Interest Payment Date (as defined in Section 2.03 below)
electing to have payments made by wire transfer to a designated account in
the United States, by wire transfer of immediately available funds to such
designated account. The Company and the Trustee will act as co-paying
agents for the Series C Debentures. Payments of principal of and interest
on the Series C Debentures issued as a Global Debenture will be made to the
Depository.
SECTION 2.03. Each Series C Debenture will bear interest at the
rate of ____% per annum from and including the original date of issuance or
from the most recent Interest Payment Date referred to below to which
interest has been paid or duly provided for until the principal thereof
becomes due and payable, and on any overdue principal and (to the extent
that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the same rate per annum, payable
quarterly in arrears on March 31, June 30, September 30 and December 31 of
each year (each, an "Interest Payment Date"), commencing on June 30, 1996,
to the person in whose name such Series C Debenture or any predecessor
Series C Debenture is registered at the close of business on the Business
Day next preceding that Interest Payment Date (each, a "Record Date");
provided, however, that if the Series C Debentures shall not be in the form
of a Global Debenture, the record date shall be the 15th day of the last
month of each calendar quarter. Any such interest installment not
punctually paid or duly provided for on any Interest Payment Date shall
forthwith cease to be payable to the registered holder on the relevant
Record Date, and may be paid to the person in whose name the Series C
Debenture (or one or more predecessor Debentures) is registered at the
close of business on a special record date to be fixed by the Trustee for
the payment of such defaulted interest, notice whereof shall be given to
the registered holders of the Series C Debentures not less than 10 days
prior to such special record date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Series C Debentures may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in
the Indenture; provided, however, that interest (other than interest
described in the next sentence) shall not be considered payable by the
Company on any Interest Payment Date falling within an Extension Period,
unless the Company has elected to make a full or partial payment of
interest accrued on the Series C Debentures on that Interest Payment Date.
Any partial payment of interest accrued on the Series C Debentures on any
Interest Payment Date falling
4
<PAGE>
within an Extension Period shall be paid pro rata to such registered
holders based upon the principal amount of Series C Debentures then held by
such registered holders.
The amount of interest payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months and, for any period
shorter than a full calendar month, on the basis of the actual number of
days elapsed in such period. In the event that any date on which interest
is payable on the Series C Debentures is not a Business Day, then payment
of interest payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in
respect of any such delay), except that, if such Business Day is in the
next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on the date such payment was originally payable.
ARTICLE THREE
Redemption of the Series C Debentures
SECTION 3.01. Subject to the terms of Article Three of the
Indenture, the Company shall have the right to redeem the Series C
Debentures, in whole, at any time, or in part, from time to time, on or
after May ___, 2001, at a redemption price equal to 100% of the principal
amount of Series C Debentures to be redeemed plus any accrued and unpaid
interest thereon to the date of such redemption. If the Series C Debentures
are only partially redeemed pursuant to this Section, the Series C
Debentures will be redeemed by lot or by any other method utilized by the
Trustee. The Company may not redeem the Series C Debentures in part unless
all accrued and unpaid interest has been paid in full on all outstanding
Series C Debentures for all interest periods terminating on or prior to the
date of redemption.
SECTION 3.02. If a Special Event in respect of the Trust shall
occur and be continuing, the Company may, at its option, redeem the Series
C Debentures at any time within 90 days of the occurrence of such Special
Event, in whole, but not in part, subject to the provisions of the
Indenture. The redemption price for any Series C Debenture so redeemed
shall be equal to 100% of the principal amount of the Series C Debentures
to be redeemed plus any accrued and unpaid interest thereon to the date of
redemption.
ARTICLE FOUR
Extension of Interest Payment Period
SECTION 4.01. Subject to Section 4.06 of the Indenture and
Section 5.06 of this Third Supplemental Indenture, the Company shall have
the right, at any time during the term of the Series C Debentures, to defer
the payment of interest on such Series C Debentures at any time and from
time to time for a period not to exceed 20 consecutive calendar quarters
from the last Interest Payment Date to which interest was paid in full
(each, an "Extension Period"), during which periods the Company shall have
the right to make partial payments of interest on any Interest Payment
Date, and at the end of such Extension Period the Company shall pay all
interest then accrued and unpaid thereon. Prior to the termination of any
such Extension Period, the Company may further extend the interest payment
period, provided that such Extension Period together with all such previous
and further extensions
5
<PAGE>
of such Extension Period shall not exceed 20 consecutive quarters or extend
beyond the maturity of the Series C Debentures. No such Extension Period
shall end on a date other than an Interest Payment Date. Upon termination
of any such Extension Period and upon the payment of all accrued and unpaid
interest then due, the Company may elect to begin a new Extension Period,
subject to the above requirements. No interest shall be due and payable
during an Extension Period, except at the end thereof.
SECTION 4.02. The Company shall give the Trustee and the
Administrative Trustees written notice of (i) any election by the Company
to initiate an Extension Period and the duration thereof, (ii) any election
by the Company to extend an Extension Period beyond the Interest Payment
Date on which that Extension Period is then scheduled to terminate and the
duration of such extension and (iii) any election by the Company to make a
full or partial payment of interest accrued on the Series C Debentures on
any Interest Payment Date during an Extension Period and the amount of such
payment. In no event shall such notice by the Company be given less than 15
Business Days prior to the later of (A) the Record Date next preceding the
applicable Interest Payment Date and (B) five Business Days prior to such
Interest Payment Date. Upon receipt of any such notice, the Trustee shall
give written notice of the Company's election by mail to the Series C
Debentureholders not less than 10 Business Days prior to such Interest
Payment Date. The Company shall make a public announcement of any such
election in accordance with New York Stock Exchange rules not less than
five Business Days prior to such Record Date.
ARTICLE FIVE
Additional Terms Relating to the Preferred Securities
SECTION 5.01. (a) For so long as any Preferred Securities remain
outstanding, if, upon an Event of Default, the Trustee fails or the holders
of not less than 25% in principal amount of the outstanding Series C
Debentures fail to declare the principal of all of the Series C Debentures
to be immediately due and payable, the holders of at least 25% in aggregate
liquidation preference of the Preferred Securities then outstanding
(determined in accordance with the Trust Agreement) shall have such right
by a notice in writing to the Company and the Trustee; and upon any such
declaration such principal amount of and the accrued interest on all of the
Series C Debentures shall become immediately due and payable, provided that
the payment of principal and interest on such Series C Debentures shall
remain subordinated to the extent provided in the Indenture.
(b) For so long as any Preferred Securities remain outstanding,
if, upon an Event of Default, the Trustee fails to exercise directly any
remedy available to the holders of the Series C Debentures for 60 days, the
holders of at least 25% in aggregate liquidation preference of the
Preferred Securities then outstanding (determined in accordance with the
Trust Agreement) shall have the right, to the fullest extent permitted by
law, to directly institute proceedings for enforcement of payment to such
holders of principal of or interest on the Series C Debentures having a
principal amount equal to the aggregate liquidation preference of the
Preferred Securities of such holders.
6
<PAGE>
SECTION 5.02. For so long as any Preferred Securities remain
outstanding, if the holders of a majority in aggregate principal amount of
the Series C Debentures fail to waive an Event of Default in accordance
with Section 6.06 of the Indenture, the holders of a majority in aggregate
liquidation preference of the Preferred Securities then outstanding
(determined in accordance with the Trust Agreement) have such right.
SECTION 5.03. For so long as any Preferred Securities remain
outstanding, the Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, and no Person shall consolidate
with or merge into the Company or convey, transfer or lease its properties
and assets substantially as an entirety to the Company, unless such
consolidation, merger, conveyance, transfer or lease is permitted under the
Trust Agreement and the Guarantee and does not give rise to any breach or
violation of the Trust Agreement or the Guarantee.
SECTION 5.04. For so long as any Preferred Securities remain
outstanding, the Company shall not terminate the Indenture or amend or
supplement the Indenture in any manner that materially adversely affects
the interests of the holders of the Preferred Securities, and no waiver of
any Event of Default or compliance with any covenant under the Indenture
shall be effective without the prior consent to such waiver of the holders
of at least a majority of the aggregate liquidation preference of such
Preferred Securities then outstanding (determined in accordance with the
Trust Agreement) unless and until the principal of the Series C Debentures
and all accrued and unpaid interest thereon have been paid in full.
SECTION 5.05. In the event that (i) the Trust is the holder of
all of the Outstanding Series C Debentures, (ii) a Tax Event in respect of
the Trust shall have occurred and be continuing and (iii) the Company shall
not have (a) redeemed the Series C Debentures pursuant to Section 3.02 of
this Third Supplemental Indenture or (b) terminated the Trust pursuant to
Section 902(b) of the Trust Agreement, the Company shall pay to the Trust
(and its permitted successors or assigns under the Trust Agreement) for so
long as the Trust (or its permitted successor or assignee) is the
registered holder of any Series C Debentures, such additional amounts as
may be necessary in order that the amount of Distributions (including any
Additional Amounts (as defined in the Trust Agreement)) then due and
payable by the Trust on the related Preferred Securities and Common
Securities that at any time remain outstanding in accordance with the terms
thereof shall not be reduced as a result of any Additional Taxes (the
"Additional Sums"). Whenever in the Indenture or the Series C Debentures
there is a reference in any context to the payment of principal of or
interest on the Series C Debentures, such mention shall be deemed to
include mention of the payments of the Additional Sums provided for in this
paragraph to the extent that, in such context, Additional Sums are, were or
would be payable in respect thereof pursuant to the provisions of this
paragraph and express mention of the payment of Additional Sums (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Sums in those provisions hereof where such express mention is
not made, provided, however, that the deferral of the payment of interest
pursuant to Section 4.01 of this Third Supplemental Indenture or the Series
C Debentures shall not defer the payment of any Additional Sums that may be
due and payable during such interest payment period.
7
<PAGE>
SECTION 5.06. For so long as any Preferred Securities remain
outstanding, the Company covenants and agrees with each holder of Series C
Debentures issued to the Trust that it will not, and it will not permit any
Subsidiary of the Company to, (i) declare, set aside or pay any dividend or
distribution on, or repurchase, redeem, or otherwise acquire or make any
sinking fund payment with respect to, any shares of the Company's capital
stock or (ii) make any payment of principal, interest or premium, if any,
on or repay, repurchase or redeem any debt securities that rank pari passu
with or junior in interest to the Series C Debentures or make any guarantee
payments with respect to the foregoing (other than (a) dividends or
distributions in shares of its capital stock or in rights to acquire shares
of its capital stock, (b) conversions into or exchanges for shares of its
capital stock, (c) redemptions, purchases or other acquisitions 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 mandatory
redemptions or sinking fund payments with respect to any series of
Preferred Stock of the Company that are subject to mandatory redemption or
sinking fund requirements, provided that the aggregate stated value of all
such series outstanding at the time of any such payment does not exceed
five percent of the aggregate of (1) the total principal amount of all
bonds or other securities representing secured indebtedness issued or
assumed by the Company and then outstanding and (2) the capital and surplus
of the Company to be stated on the books of account of the Company after
giving effect to such payment, provided, however, that any moneys deposited
in any sinking fund and not in violation of this provision may thereafter
be applied to the purchase or redemption of such Preferred Stock in
accordance with the terms of such sinking fund without regard to the
restrictions contained in this provision, and (d) payments under any
guarantee by the Company with respect to any securities of a subsidiary of
the Company, provided that the proceeds from the issuance of such
securities were used to purchase Debentures of any series) if at such time
(i) there shall have occurred any event of which the Company has actual
knowledge that (a) with the giving of notice or the lapse of time or both,
would constitute an Event of Default hereunder and (b) in respect of which
the Company shall not have taken reasonable steps to cure, (ii) the Company
shall be in default with respect to its payment of any obligations under
the Guarantee or (iii) the Company shall have given notice of its election
to begin an Extension Period as provided herein and shall not have
rescinded such notice, or such period, or any extension thereof, shall be
continuing.
SECTION 5.07. For so long as any Preferred Securities remain
outstanding, the Company also covenants with each holder of Series C
Debentures issued to the Trust (i) to maintain directly or indirectly 100%
ownership of the Common Securities of the Trust; provided, however, that
any permitted successor of the Company under the Indenture may succeed to
the Company's ownership of such Common Securities, (ii) not to voluntarily
terminate, wind-up or liquidate the Trust, except (a) in connection with a
distribution of the Series C Debentures to the holders of Preferred
Securities in liquidation of the Trust or (b) in connection with certain
mergers, consolidations or amalgamations permitted by the Trust Agreement
and (iii) to use its reasonable efforts, consistent with the terms and
provisions of the Trust Agreement, to cause the Trust to remain classified
as a grantor trust and not to be classified as an association taxable as a
corporation for United States federal income tax purposes.
8
<PAGE>
ARTICLE SIX
Form of Series C Debenture
The Series C Debentures and the Trustee's Certificate of
Authentication to be endorsed thereon are to be substantially in the
following forms:
(FORM OF FACE OF DEBENTURE)
[If the Debenture is to be issued as a Global Debenture,
insert--This Debenture is a Global Debenture within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depository or a nominee of a Depository. This Debenture is exchangeable for
Debentures registered in the name of a person other than the Depository or
its nominee only in the limited circumstances described in the Indenture,
and no transfer of this Debenture (other than a transfer of this Debenture
as a whole by the Depository to a nominee of the Depository or by a nominee
of the Depository to the Depository or another nominee of the Depository)
may be registered except in limited circumstances.
Unless this Debenture is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York)
to the issuer or its agent for registration of transfer, exchange or
payment, and any Debenture issued is registered in the name of Cede & Co.
or such other name as requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.]
No.___________ $__________
CUSIP No. ______________
PACIFICORP
----%
JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE,
SERIES C
PACIFICORP, a corporation duly organized and existing under the
laws of the State of Oregon (herein referred to as the "Company", which
term includes any successor corporation under the Indenture), for value
received, hereby promises to pay to _____________________ or registered
assigns, the principal sum of $____, on June 30, 20___, and to pay interest
on such principal sum from and including _________________, 1996 or from
the most recent interest payment date (each such date, an "Interest Payment
Date") to which interest has been paid or duly provided for, payable
quarterly in arrears on March 31, June 30, September 30 and December 31 of
each year, commencing on June 30,
9
<PAGE>
1996, at the rate of ____% per annum, until the principal hereof shall have
become due and payable, and on any overdue principal and premium, if any,
and (to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at the same rate per
annum. The amount of interest payable on any Interest Payment Date shall be
computed on the basis of a 360-day year of twelve 30-day months and, for
any period shorter than a full calendar month, on the basis of the actual
number of days elapsed in such period. In the event that any date on which
interest is payable on this Debenture is not a Business Day, then payment
of interest payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other payment in
respect of any such delay), except that, if such Business Day is in the
next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on such date. The interest installment so payable, and
punctually paid or duly provided for on any Interest Payment Date will, as
provided in the Indenture, be paid to the person in whose name this
Debenture (or one or more Predecessor Debentures, as defined in the
Indenture) is registered at the close of business on the Business Day next
preceding that Interest Payment Date (each a "Record Date"); provided,
however, that if this Debenture shall not be in the form of a Global
Debenture the record date shall be the 15th day of the last month of each
calendar quarter. Any such interest installment not punctually paid or duly
provided for on any Interest Payment Date shall forthwith cease to be
payable to the registered holder on the relevant Record Date, and may be
paid to the person in whose name this Debenture (or one or more Predecessor
Debentures) is registered at the close of business on a special record date
to be fixed by the Trustee for the payment of such defaulted interest,
notice whereof shall be given to the registered holders of this series of
Debentures not less than 10 days prior to such special record date, or may
be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Debentures may then be
listed, and upon such notice as may be required by such exchange, all as
more fully provided in the Indenture hereinafter referred to; provided,
however, that interest shall not be considered payable by the Company on
any Interest Payment Date falling within an Extension Period (as defined
below), unless the Company has elected to make a full or partial payment of
interest accrued on this Debenture on that Interest Payment Date. Any
partial payment of interest accrued on this series of Debentures on any
Interest Payment Date falling within an Extension Period shall be paid pro
rata to the registered holder of this Debenture based upon the principal
amount of this Debenture in relation to the aggregate principal amount of
all Debentures of this series then outstanding. The principal of (and
premium, if any) and the interest on this Debenture shall be payable at the
office or agency of the Company maintained for that purpose in the Borough
of Manhattan, The City of New York, in any coin or currency of the United
States of America which at the time of payment is legal tender for payment
of public and private debts; provided, however, that payment of interest
may be made at the option of the Company by check mailed to the registered
holder at such address as shall appear in the Debenture Register or, with
respect to a registered holder of $1,000,000 or more in aggregate principal
amount of Debentures who has delivered a written request to the Trustee at
least 14 days prior to the relevant Interest Payment Date electing to have
payments made by wire transfer to a designated account in the United
States, by wire transfer of immediately available funds to such designated
account.
10
<PAGE>
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinated and junior in right of payment to
the prior payment in full of all Senior Indebtedness, and this Debenture is
issued subject to the provisions of the Indenture with respect thereto.
Each holder of this Debenture, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee
on its behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c) appoints
the Trustee its attorney-in-fact for any and all such purposes. Each holder
hereof, by its acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon those
provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been
signed by or on behalf of the Trustee.
The provisions of this Debenture are contained on the reverse
side hereof and such continued provisions shall for all purposes have the
same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Instrument to be
executed.
PACIFICORP
By
-------------------------------------
Richard T. O'Brien, Senior Vice
President and Chief Financial Officer
Attest:
- ----------------------------------
Sally A. Nofziger, Secretary
11
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures
described in the within-mentioned Indenture.
Dated:
THE BANK OF NEW YORK
- ---------------------------------- ----------------------------------
as Trustee or as Authentication Agent
By
- ---------------------------------- ----------------------------------
Authorized Signatory Authorized Signatory
12
<PAGE>
(REVERSE)
____% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE,
SERIES C
(continued)
This Debenture is one of a duly authorized series of debentures
of the Company (herein sometimes referred to as the "Debentures"),
specified in the Indenture (as defined below), all issued or to be issued
in one or more series under and pursuant to an Indenture dated as of May 1,
1995 duly executed and delivered between the Company and THE BANK OF NEW
YORK, a New York banking corporation, as Trustee (herein referred to as the
"Trustee"), as supplemented by the First Supplemental Indenture dated as of
May 1, 1995, the Second Supplemental Indenture dated as of October 1, 1995
and the Third Supplemental Indenture dated as of May ____, 1996 between the
Company and the Trustee (such Indenture as so supplemented being
hereinafter referred to as the "Indenture"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description
of the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the holders of the Debentures.
By the terms of the Indenture, the Debentures are issuable in series which
may vary as to amount, date of maturity, rate of interest and in other
respects as in the Indenture provided. This series of Debentures is limited
in aggregate principal amount as specified in the Third Supplemental
Indenture.
Subject to the terms of Article Three of the Indenture, the
Company shall have the right to redeem the Debentures of this series at the
option of the Company, without premium or penalty, in whole or in part at
any time and from time to time on or after ______________, 2001 (an
"Optional Redemption"), at a redemption price equal to 100% of the
principal amount of the Debentures of this series to be redeemed plus any
accrued and unpaid interest thereon to the date of such redemption. If the
Debentures of this series are only partially redeemed by the Company
pursuant to an Optional Redemption, the Debentures of this series will be
redeemed by lot or by any other method utilized by the Trustee.
If a Special Event in respect of the Trust shall occur and be
continuing, the Company may, at its option, redeem this Debenture at any
time within 90 days of the occurrence of such Special Event, in whole, but
not in part, subject to the provisions of the Indenture. The redemption
price for any Debenture of this series so redeemed shall be equal to 100%
of the principal amount thereof plus accrued and unpaid interest to the
date of such redemption.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures of this series for the unredeemed portion hereof
will be issued in the name of the holder hereof upon the cancellation
hereof.
In case an Event of Default with respect to the Debentures of
this series shall have occurred and be continuing, the principal of all of
the Debentures of this series may be declared, and upon such declaration
shall become, due and payable, in the manner, with the effect and subject
to the conditions provided in the Indenture.
13
<PAGE>
The Indenture contains provisions for defeasance at any time of
the entire indebtedness of the Debentures of this series upon compliance by
the Company with certain conditions set forth therein.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the
time Outstanding, as defined in the Indenture, to execute supplemental
indentures for the purpose of adding any provisions to, changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying in any manner the rights of the
holders of the Debentures; provided, however, that no such supplemental
indenture shall (i) extend the fixed maturity of any Debentures of any
series, reduce the principal amount thereof, reduce the rate or extend the
time of payment of interest thereon or reduce any premium payable upon the
redemption thereof, without the consent of the holder of each Debenture so
affected or (ii) reduce the aforesaid percentage of Debentures, the holders
of which are required to consent to any such supplemental indenture,
without the consent of the holders of each Debenture then outstanding and
affected thereby. The Indenture also contains provisions permitting the
holders of a majority in aggregate principal amount of the Debentures of
all series at the time outstanding affected thereby, on behalf of the
holders of the Debentures of such series, to waive any past default in the
performance of any of the covenants contained in the Indenture, or
established pursuant to the Indenture with respect to such series, and its
consequences, except a default in the payment of the principal of or
premium, if any, or interest on any of the Debentures of such series, which
default may be waived by the unanimous consent of the holders affected. Any
such consent or waiver by the registered holder of this Debenture (unless
revoked as provided in the Indenture) shall be conclusive and binding upon
such holder and upon all future holders and owners of this Debenture and of
any Debenture issued in exchange herefor or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether or not any
notation of such consent or waiver is made upon this Debenture.
For so long as any Preferred Securities (as defined in the
Indenture) remain outstanding, if, upon an Event of Default, the Trustee
fails or the holders of not less than 25% in principal amount of the
outstanding Debentures of this series fail to declare the principal of all
of the Debentures of this series to be immediately due and payable, the
holders of at least 25% in aggregate liquidation preference of the
Preferred Securities then outstanding (determined in accordance with the
related Trust Agreement) shall have such right by a notice in writing to
the Company and the Trustee; and upon any such declaration such principal
amount of and the accrued interest on all of the Debentures of this series
shall become immediately due and payable, provided that the payment of
principal and interest on such Debentures shall remain subordinated to the
extent provided in the Indenture.
For so long as any Preferred Securities remain outstanding, if,
upon an Event of Default, the Trustee fails to exercise directly any remedy
available to the holders of the Series C Debentures for 60 days, the
holders of at least 25% in aggregate liquidation preference of the
Preferred Securities then outstanding (determined in accordance with the
Trust Agreement) shall have the right, to the fullest extent permitted by
law, to directly institute proceedings for enforcement of payment to such
holders of principal of or interest
14
<PAGE>
on the Series C Debentures having a principal amount equal to the aggregate
liquidation preference of the Preferred Securities of such holders.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Debenture at the time and place and
at the rate and in the money herein prescribed.
Subject to the provisions of the Indenture, the Company shall
have the right, at any time during the term of this series of Debentures,
to defer the payment of interest on this series of Debentures at any time
and from time to time for a period not to exceed 20 consecutive calendar
quarters from the last Interest Payment Date to which interest was paid in
full (each, an "Extension Period") during which periods the Company shall
have the right to make partial payments of interest on any Interest Payment
Date, and at the end of such Extension Period the Company shall pay all
interest then accrued and unpaid thereon. Prior to the termination of any
such Extension Period, the Company may further extend the interest payment
period, provided that such Extension Period together with all such previous
and further extensions of such Extension Period shall not exceed 20
consecutive quarters or extend beyond the maturity of the Series C
Debentures. Upon termination of any such Extension Period and upon the
payment of all accrued and unpaid interest then due, the Company may select
a new Extension Period, subject to the above requirements. No interest
shall be due and payable during an Extension Period, except at the end
thereof.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the registered holder
hereof on the Debenture Register of the Company, upon surrender of this
Debenture for registration of transfer at the office or agency of the
Company designated for such purpose in the Borough of Manhattan, The City
of New York, accompanied by a written instrument or instruments of transfer
in form satisfactory to the Company and the Trustee duly executed by the
registered holder hereof or its attorney duly authorized in writing, and
thereupon one or more new Debentures of authorized denominations and for
the same aggregate principal amount and series will be issued to the
designated transferee or transferees. No service charge will be made for
any such transfer, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and any Debenture
Registrar may deem and treat the registered holder hereof as the absolute
owner hereof (whether or not this Debenture shall be overdue and
notwithstanding any notice of ownership or writing hereon made by anyone
other than the Debenture Registrar) for the purpose of receiving payment of
or on account of the principal hereof and premium, if any, and interest due
hereon and for all other purposes, and neither the Company nor the Trustee
nor any paying agent nor any Debenture Registrar shall be affected by any
notice to the contrary.
No recourse shall be had for the payment of the principal of or
the interest on this Debenture, or for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past,
15
<PAGE>
present or future, as such, of the Company or of any predecessor or
successor corporation, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part
of the consideration for the issuance hereof, expressly waived and
released.
[If the Debenture is to be issued as a Global Debenture,
insert--This Global Debenture is exchangeable for Debentures in
certificated form only under certain limited circumstances set forth in the
Indenture.] The Debentures of this series are issuable in registered form
without coupons in denominations of $25 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations herein and
therein set forth, Debentures of this series so issued are exchangeable for
a like aggregate principal amount of Debentures of this series of a
different authorized denomination, as requested by the holder surrendering
the same.
All terms used in this Debenture which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
ARTICLE SEVEN
Original Issue of Series C Debentures
Series C Debentures in the aggregate principal amount of
$__________________ may, upon execution of this Third Supplemental
Indenture, or from time to time thereafter, be executed by the Company and
delivered to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver such Debentures to or upon the written
order of the Company, signed by its Chairman, President or any Vice
President and its Treasurer or an Assistant Treasurer, without any further
action by the Company.
ARTICLE EIGHT
Miscellaneous Provisions
SECTION 8.01. Except as otherwise expressly provided in this
Third Supplemental Indenture or in the form of Series C Debenture or
otherwise clearly required by the context hereof or thereof, all terms used
herein or in the form of Series C Debenture that are defined in the
Indenture shall have the several meanings respectively assigned to them
thereby.
SECTION 8.02. The Indenture, as supplemented by the First
Supplemental Indenture, the Second Supplemental Indenture and this Third
Supplemental Indenture, is in all respects ratified and confirmed, and this
Third Supplemental Indenture shall be deemed part of the Indenture in the
manner
and to the extent herein and therein provided.
SECTION 8.03. The recitals herein contained are made by the
Company and not by the Trustee, and the Trustee assumes no responsibility
for the correctness thereof. The Trustee makes no representation as to the
validity or sufficiency of this Third Supplemental Indenture.
16
<PAGE>
SECTION 8.04. This Third Supplemental Indenture may be executed
in any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed on the date or dates indicated
in the acknowledgments and as of the day and year first above written.
PACIFICORP
By:
-------------------------------
Richard T. O'Brien, Senior Vice
President and Chief Financial Officer
THE BANK OF NEW YORK, as Trustee
By:
-------------------------------
17
Exhibit 4(e)
CERTIFICATE OF TRUST
OF
PACIFICORP CAPITAL I
THIS CERTIFICATE OF TRUST of PacifiCorp Capital I (the "Trust"), dated
May 3, 1996, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act
(12 Del. C. Section 3801 et seq.).
1. Name. The name of the business trust being formed hereby is
PacifiCorp Capital I.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware are
The Bank of New York (Delaware), 23 White Clay Center, Newark, New Castle
County, Delaware 19711.
3. Counterparts. This Certificate of Trust may be executed in one or
more counterparts, all of which together shall constitute one and the same
instrument.
4. Effective Date. This Certificate of Trust shall be effective as of
its filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust,
have executed this Certificate of Trust as of the date first above written.
THE BANK OF NEW YORK,
as Trustee
W.E. PERESSINI By VIVIAN GEORGES
- ---------------------------------- -------------------------------
William E. Peressini, as Trustee Name: Vivian Georges
Title: Assistant Vice President
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By WALTER DOUGLAS
-------------------------------
Name: Walter Douglas
Title: Senior Vice President and
Chief Financial Officer
Exhibit 4(f)
TRUST AGREEMENT
This TRUST AGREEMENT, dated as of May 3, 1996, is among PacifiCorp,
an Oregon corporation, as "Depositor," The Bank of New York, a New York
banking corporation, The Bank of New York (Delaware), a Delaware
corporation, and William E. Peressini, not in their individual capacities,
but solely as Trustees. The Depositor and the Trustees hereby agree as
follows:
1. The trust created hereby shall be known as "PacifiCorp Capital
I," in which name the Trustees, or the Depositor to the extent
provided herein, may conduct the business of the Trust, make and
execute contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trustees the sum of $10. The Trustees hereby acknowledge
receipt of such amount in trust from the Depositor, which amount
shall constitute the initial trust estate. The Trustees hereby
declare that they will hold the trust estate in trust for the
Depositor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 28
of Title 12 of the Delaware Code, 12 Del. C Section 3801 et seq.
(the "Business Trust Act"), and that this document constitutes the
governing instrument of the Trust. The Trustees are hereby
authorized and directed to execute and file a certificate of
trust with the Delaware Secretary of State in accordance with the
provisions of the Business Trust Act.
3. The Depositor and the Trustees will enter into an amended and
restated Trust Agreement, satisfactory to each such party and
substantially in the form to be included as an Exhibit to the
1933 Act Registration Statement (as defined below), to provide
for the contemplated operation of the Trust created hereby and
the issuance of the Preferred Securities and Common Securities
referred to therein. Prior to the execution and delivery of such
amended and restated Trust Agreement, the Trustees shall not have
any duty or obligation hereunder or with respect to the trust
estate, except as otherwise required by applicable law or as may
be necessary to obtain prior to such execution and delivery any
licenses, consents or approvals required by applicable law or
otherwise.
4. The Depositor, as the sponsor of the Trust, shall have the
exclusive right and responsibility to engage in the following
activities: (i) to file with the Securities and Exchange
Commission (the "Commission") and execute, in each case on behalf
of the Trust, (a) the Registration Statement on Form S-3
1
<PAGE>
(including the prospectus and the exhibits contained therein)
(the "1933 Act Registration Statement"), including any
pre-effective or post-effective amendments to such 1933 Act
Registration Statement, relating to the registration under the
Securities Act of 1933, as amended, of the Preferred Securities
of the Trust and certain other securities and (b) a Registration
Statement on Form 8-A (the "1934 Act Registration Statement")
(including any pre-effective and post-effective amendments
thereto) relating to the registration of the Preferred Securities
of the Trust under Section 12(b) of the Securities Exchange Act
of 1934, as amended; (ii) to file with the New York Stock
Exchange, any other national stock exchange or interdealer
quotation system (collectively, the "Exchange") and execute on
behalf of the Trust listing application and all other
applications, statements, certificates, agreements and other
instruments as shall be necessary or desirable to cause the
Preferred Securities to be listed on the Exchange; (iii) to file
and execute on behalf of the Trust such applications, reports,
surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as shall be
necessary or desirable to register the Preferred Securities under
the securities or "Blue Sky" laws of such jurisdictions as the
Depositor, on behalf of the Trust, may deem necessary or
desirable and (iv) to execute on behalf of the Trust that certain
Underwriting Agreement relating to the Preferred Securities,
among the Trust, the Depositor and the several Underwriters named
therein, substantially in the form to be included as an Exhibit
to the 1933 Act Registration Statement. In the event that any of
the filings referred to in clauses (i), (ii) and (iii) above is
required by the rules and regulations of the Commission, the
Exchange or state securities or blue sky laws, to be executed on
behalf of the Trust by any of the Trustees, William E. Peressini,
in his capacity as Trustee of the Trust, is hereby authorized and
directed to join in any such filing and to execute on behalf of
the Trust any and all of the foregoing.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be three and thereafter
the number of Trustees shall be such number as shall be fixed
from time to time by a written instrument signed by the Depositor
which may increase or decrease the number of Trustees, provided,
however, that to the extent required by the Business Trust Act,
one Trustee shall either be a natural person who is a resident of
the State of Delaware or, if not a natural person, an entity
which has its principal place of business in the State of
Delaware and otherwise metes the requirements of applicable
Delaware law. Subject to the foregoing, the Depositor is entitled
to appoint or remove without cause any Trustee at any time. The
Trustees may resign upon thirty days prior notice to the
Depositor.
2
<PAGE>
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without
regard to conflict of laws principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
PACIFICORP, as Depositor
By W.E. PERESSINI
--------------------------------
Name:
Title:
THE BANK OF NEW YORK,
not in its individual capacity but
solely as Trustee
By VIVIAN GEORGES
--------------------------------
Name: Vivian Georges
Title: Assistant Vice President
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity but
solely as Trustee
By WALTER DOUGLAS
--------------------------------
Name:
Title:
William E. Peressini,
not in his individual capacity but
solely as Trustee
W.E. PERESSINI
-----------------------------------
3
Exhibit 4(g)
CERTIFICATE OF TRUST
OF
PACIFICORP CAPITAL II
THIS CERTIFICATE OF TRUST of PacifiCorp Capital II (the "Trust"),
dated May 3, 1996, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act
(12 Del. C. Section 3801 et seq.).
1. Name. The name of the business trust being formed hereby is
PacifiCorp Capital I.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware are
The Bank of New York (Delaware), 23 White Clay Center, Newark, New Castle
County, Delaware 19711.
3. Counterparts. This Certificate of Trust may be executed in one or
more counterparts, all of which together shall constitute one and the same
instrument.
4. Effective Date. This Certificate of Trust shall be effective as of
its filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
THE BANK OF NEW YORK,
as Trustee
W.E. PERESSINI By VIVIAN GEORGES
- ---------------------------------- --------------------------------
William E. Peressini, as Trustee Name: Vivian Georges
Title: Assistant Vice President
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By WALTER DOUGLAS
--------------------------------
Name: Walter Douglas
Title: Senior Vice President and
Chief Financial Officer
Exhibit 4(h)
TRUST AGREEMENT
This TRUST AGREEMENT, dated as of May 3, 1996, is among PacifiCorp, an
Oregon corporation, as "Depositor," The Bank of New York, a New York
banking corporation, The Bank of New York (Delaware), a Delaware
corporation, and William E. Peressini, not in their individual capacities,
but solely as Trustees. The Depositor and the Trustees hereby agree as
follows:
1. The trust created hereby shall be known as "PacifiCorp Capital
II," in which name the Trustees, or the Depositor to the extent
provided herein, may conduct the business of the Trust, make and
execute contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trustees the sum of $10. The Trustees hereby acknowledge
receipt of such amount in trust from the Depositor, which amount
shall constitute the initial trust estate. The Trustees hereby
declare that they will hold the trust estate in trust for the
Depositor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 28
of Title 12 of the Delaware Code, 12 Del. C Section 3801 et seq.
(the "Business Trust Act"), and that this document constitutes the
governing instrument of the Trust. The Trustees are hereby
authorized and directed to execute and file a certificate of
trust with the Delaware Secretary of State in accordance with the
provisions of the Business Trust Act.
3. The Depositor and the Trustees will enter into an amended and
restated Trust Agreement, satisfactory to each such party and
substantially in the form to be included as an Exhibit to the
1933 Act Registration Statement (as defined below), to provide
for the contemplated operation of the Trust created hereby and
the issuance of the Preferred Securities and Common Securities
referred to therein. Prior to the execution and delivery of such
amended and restated Trust Agreement, the Trustees shall not have
any duty or obligation hereunder or with respect to the trust
estate, except as otherwise required by applicable law or as may
be necessary to obtain prior to such execution and delivery any
licenses, consents or approvals required by applicable law or
otherwise.
4. The Depositor, as the sponsor of the Trust, shall have the
exclusive right and responsibility to engage in the following
activities: (i) to file with the Securities and Exchange
Commission (the "Commission") and execute, in each case on behalf
of the Trust, (a) the Registration Statement on Form S-3
1
<PAGE>
(including the prospectus and the exhibits contained therein)
(the "1933 Act Registration Statement"), including any
pre-effective or post-effective amendments to such 1933 Act
Registration Statement, relating to the registration under the
Securities Act of 1933, as amended, of the Preferred Securities
of the Trust and certain other securities and (b) a Registration
Statement on Form 8-A (the "1934 Act Registration Statement")
(including any pre-effective and post-effective amendments
thereto) relating to the registration of the Preferred Securities
of the Trust under Section 12(b) of the Securities Exchange Act
of 1934, as amended; (ii) to file with the New York Stock
Exchange, any other national stock exchange or interdealer
quotation system (collectively, the "Exchange") and execute on
behalf of the Trust listing application and all other
applications, statements, certificates, agreements and other
instruments as shall be necessary or desirable to cause the
Preferred Securities to be listed on the Exchange; (iii) to file
and execute on behalf of the Trust such applications, reports,
surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as shall be
necessary or desirable to register the Preferred Securities under
the securities or "Blue Sky" laws of such jurisdictions as the
Depositor, on behalf of the Trust, may deem necessary or
desirable and (iv) to execute on behalf of the Trust that certain
Underwriting Agreement relating to the Preferred Securities,
among the Trust, the Depositor and the several Underwriters named
therein, substantially in the form to be included as an Exhibit
to the 1933 Act Registration Statement. In the event that any of
the filings referred to in clauses (i), (ii) and (iii) above is
required by the rules and regulations of the Commission, the
Exchange or state securities or blue sky laws, to be executed on
behalf of the Trust by any of the Trustees, William E. Peressini,
in his capacity as Trustee of the Trust, is hereby authorized and
directed to join in any such filing and to execute on behalf of
the Trust any and all of the foregoing.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be three and thereafter
the number of Trustees shall be such number as shall be fixed
from time to time by a written instrument signed by the Depositor
which may increase or decrease the number of Trustees, provided,
however, that to the extent required by the Business Trust Act,
one Trustee shall either be a natural person who is a resident of
the State of Delaware or, if not a natural person, an entity
which has its principal place of business in the State of
Delaware and otherwise metes the requirements of applicable
Delaware law. Subject to the foregoing, the Depositor is entitled
to appoint or remove without cause any Trustee at any time. The
Trustees may resign upon thirty days prior notice to the
Depositor.
2
<PAGE>
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without
regard to conflict of laws principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
PACIFICORP, as Depositor
By W.E. PERESSINI
--------------------------------
Name:
Title:
THE BANK OF NEW YORK,
not in its individual capacity but
solely as Trustee
By VIVIAN GEORGES
--------------------------------
Name: Vivian Georges
Title: Assistant Vice President
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity but
solely as Trustee
By WALTER DOUGLAS
--------------------------------
Name:
Title:
W.E. PERESSINI
-----------------------------------
William E. Peressini,
not in his individual capacity but
solely as Trustee
3
================================================================================
AMENDED AND RESTATED
TRUST AGREEMENT
among
PACIFICORP, as Depositor,
THE BANK OF NEW YORK, as Property Trustee,
THE BANK OF NEW YORK (DELAWARE), as Delaware Trustee,
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of May __, 1996
PACIFICORP CAPITAL I
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
ARTICLE I
Defined Terms
<S> <C> <C>
Section 101. Definitions...........................................................2
ARTICLE II
Establishment of the Trust
Section 201. Name.................................................................11
Section 202. Office of the Delaware Trustee; Principal Place of Business..........11
Section 203. Initial Contribution of Trust Property; Organizational Expenses......11
Section 204. Issuance of the Preferred Securities.................................12
Section 205. Issuance of the Common Securities; Subscription
and Purchase of Debentures..................................12
Section 206. Declaration of Trust.................................................12
Section 207. Authorization to Enter into Certain Transactions.....................13
Section 208. Assets of Trust......................................................16
Section 209. Title to Trust Property..............................................16
ARTICLE III
Payment Account
Section 301. Payment Account......................................................17
ARTICLE IV
Distributions; Redemption
Section 401. Distributions........................................................17
Section 402. Redemption...........................................................18
Section 403. Subordination of Common Securities...................................20
Section 404. Payment Procedures...................................................21
Section 405. Tax Returns and Reports..............................................21
Section 406. Payment of Taxes, Duties, Etc. of the Trust..........................21
Section 407. Payments under Indenture.............................................22
i
<PAGE>
ARTICLE V
Trust Securities Certificates
Section 501. Initial Ownership....................................................22
Section 502. The Trust Securities Certificates....................................22
Section 503. Execution and Delivery of Trust Securities Certificates..............22
Section 504. Registration of Transfer and Exchange of Preferred Securities
Certificates.........................................................23
Section 505. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates...24
Section 506. Persons Deemed Securityholders.......................................24
Section 507. Access to List of Securityholders' Names and Addresses...............24
Section 508. Maintenance of Office or Agency......................................25
Section 509. Appointment of Paying Agent..........................................25
Section 510. Ownership of Common Securities by Depositor..........................26
Section 511. Book-Entry Preferred Securities Certificates; Common Securities
Certificate..........................................................26
Section 512. Notices to Clearing Agency...........................................27
Section 513. Definitive Preferred Securities Certificates.........................27
Section 514. Rights of Securityholders............................................28
ARTICLE VI
Acts of Securityholders; Meetings; Voting
Section 601. Limitations on Voting Rights.........................................29
Section 602. Notice of Meetings...................................................30
Section 603. Meetings of Preferred Securityholders................................30
Section 604. Voting Rights........................................................30
Section 605. Proxies, etc.........................................................30
Section 606. Securityholder Action by Written Consent.............................31
Section 607. Record Date for Voting and Other Purposes............................31
Section 608. Acts of Securityholders..............................................31
Section 609. Inspection of Records................................................32
ARTICLE VII
Representations and Warranties
Section 701. Representations and Warranties of the Bank and the
Property Trustee.....................................................33
Section 702. Representations and Warranties of the Delaware Bank and
the Delaware Trustee.................................................34
Section 703. Representations and Warranties of Depositor..........................35
ii
<PAGE>
ARTICLE VIII
The Trustees
Section 801. Certain Duties and Responsibilities..................................36
Section 802. Certain Notices......................................................37
Section 803. Certain Rights of Property Trustee...................................38
Section 804. Not Responsible for Recitals or Issuance of Securities...............40
Section 805. May Hold Securities..................................................40
Section 806. Compensation; Indemnity; Fees........................................40
Section 807. Corporate Property Trustee Required; Eligibility of Trustees.........41
Section 808. Conflicting Interests................................................41
Section 809. Co-Trustees and Separate Trustee.....................................41
Section 810. Resignation and Removal; Appointment of Successor....................43
Section 811. Acceptance of Appointment by Successor...............................44
Section 812. Merger, Conversion, Consolidation or Succession to Business..........45
Section 813. Preferential Collection of Claims Against Depositor or Trust.........45
Section 814. Reports by Property Trustee..........................................46
Section 815. Reports to the Property Trustee......................................46
Section 816. Evidence of Compliance with Conditions Precedent.....................46
Section 817. Number of Trustees...................................................47
Section 818. Delegation of Power..................................................47
Section 819. Voting...............................................................47
ARTICLE IX
Termination, Liquidation and Merger
Section 901. Termination Upon Expiration Date.....................................48
Section 902. Early Termination....................................................48
Section 903. Termination..........................................................48
Section 904. Liquidation..........................................................48
Section 905. Mergers, Consolidations, Amalgamations or Replacements
of the Trust.........................................................50
ARTICLE X
Miscellaneous Provisions
Section 1001. Limitation of Rights of Securityholders..............................51
Section 1002. Amendment............................................................51
Section 1003. Separability.........................................................53
Section 1004. Governing Law........................................................53
Section 1005. Payments Due on Non-Business Day.....................................53
Section 1006. Successors...........................................................53
Section 1007. Headings.............................................................53
Section 1008. Reports, Notices and Demands.........................................53
iii
<PAGE>
Section 1009. Agreement Not to Petition............................................54
Section 1010. Trust Indenture Act; Conflict with Trust Indenture Act...............54
Section 1011. Acceptance of Terms of Trust Agreement, Guarantee and Indenture......55
Exhibit A Certificate of Trust
Exhibit B Form of Certificate Depository Agreement
Exhibit C Form of Common Securities Certificate
Exhibit D Form of Expense Agreement
Exhibit E Form of Preferred Securities
</TABLE>
iv
<PAGE>
PacifiCorp Capital I
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
Section. 310 (a)(1)...................................... 807
(a)(2)...................................... 807
(a)(3)...................................... 809
(a)(4)...................................... 207(a)(ii)
(b)......................................... 808
Section. 311 (a)......................................... 813
(b)......................................... 813
Section. 312 (a)......................................... 507
(b)......................................... 507
(c)......................................... 507
Section. 313 (a)......................................... 814(a)
(a)(4)...................................... 814(b)
(b)......................................... 814(b)
(c)......................................... 108
(d)......................................... 814(c)
Section. 314 (a)......................................... 815
(b)......................................... Not Applicable
(c)(1)...................................... 816
(c)(2)...................................... 816
(c)(3)...................................... Not Applicable
(d)......................................... Not Applicable
(e)......................................... 101, 816
Section. 315 (a)......................................... 801(a), 803(a)
(b)......................................... 802, 108
(c)......................................... 801(a)
(d)......................................... 801, 803
(e)......................................... Not Applicable
Section. 316 (a)......................................... Not Applicable
(a)(1)(A)................................... Not Applicable
(a)(1)(B)................................... Not Applicable
(a)(2)...................................... Not Applicable
(b)......................................... Not Applicable
(c)......................................... 607
Section. 317 (a)(1)...................................... Not Applicable
(a)(2)...................................... Not Applicable
(b)......................................... 509
Section. 318 (a)......................................... 1010
- ---------------
Note: This reconciliation and tie sheet shall not, for any
purpose, be deemed to be a part of the Trust Agreement.
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of May __, 1996,
among (i) PacifiCorp, an Oregon corporation (including any successors or
assigns, the "Depositor"), (ii) The Bank of New York, a New York banking
corporation duly organized and existing under the laws of the State of New
York, as property trustee (the "Property Trustee" and, in its separate
corporate capacity and not in its capacity as Property Trustee, the
"Bank"), (iii) The Bank of New York (Delaware), a Delaware banking
corporation duly organized and existing under the laws of the State of
Delaware, as Delaware trustee (the "Delaware Trustee," and, in its separate
corporate capacity and not in its capacity as Delaware Trustee, the
"Delaware Bank") (iv) William E. Peressini, an individual, and John R.
Stageberg, an individual, each of whose address is c/o PacifiCorp (each an
"Administrative Trustee" and collectively the "Administrative Trustees")
(the Property Trustee, the Delaware Trustee and the Administrative Trustees
referred to collectively as the "Trustees") and (v) the several Holders, as
hereinafter defined.
W I T N E S S E T H:
WHEREAS, the Depositor, the Property Trustee, the Delaware
Trustee, and William E. Peressini, as Administrative Trustee (the "Prior
Administrative Trustee") have heretofore duly declared and established a
business trust pursuant to the Delaware Business Trust Act by the entering
into of that certain Trust Agreement, dated as of May ___, 1996 (the
"Original Trust Agreement"), and by the execution and filing by the
Delaware Trustee, the Property Trustee and the Prior Administrative Trustee
with the Secretary of State of the State of Delaware of the Certificate of
Trust, filed on May __, 1996, the form of which is attached as Exhibit A;
and
WHEREAS, the Depositor, the Delaware Trustee, the Property Trustee
and the Prior Administrative Trustee desire to amend and restate the
Original Trust Agreement in its entirety as set forth herein to provide
for, among other things, (i) the issuance of the Common Securities by the
Trust to the Depositor, (ii) the issuance and sale of the Preferred
Securities by the Trust pursuant to the Underwriting Agreement, (iii) the
acquisition by the Trust from the Depositor of all of the right, title and
interest in the Debentures and (iv) the appointment of an additional
Administrative Trustee;
NOW THEREFORE, in consideration of the agreements and obligations
set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, each party, for the benefit of
the other parties and for the benefit of the Securityholders, hereby amends
and restates the Original Trust Agreement in its entirety and agrees as
follows:
<PAGE>
ARTICLE I
Defined Terms
Section 101. Definitions.
For all purposes of this Trust Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) unless the context otherwise requires, any reference to
an "Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole and not to
any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 608.
"Additional Amount" means, with respect to Trust Securities of a
given Liquidation Amount and/or a given period, the amount of additional
interest accrued on interest in arrears and paid by the Depositor on a Like
Amount of Debentures for such period.
"Additional Sums" has the meaning specified in Section 5.05 of the
Third Supplemental Indenture.
"Administrative Trustee" means each of William E. Peressini and
John R. Stageberg, solely in his capacity as Administrative Trustee of the
Trust formed and continued hereunder and not in his individual capacity, or
such Administrative Trustee's successor in interest in such capacity, or
any successor trustee appointed as herein provided.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of
this definition, "control" when used with respect to any specified Person
means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
2
<PAGE>
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having
jurisdiction in the premises adjudging such Person a bankrupt or insolvent,
or approving as properly filed a petition seeking liquidation or
reorganization of or in respect of such Person under the Federal Bankruptcy
Code or any other similar applicable Federal or State law, and the
continuance of any such decree or order unvacated and unstayed for a period
of 90 days; or the commencement of an involuntary case under the Federal
Bankruptcy Code in respect of such Person, which shall continue undismissed
for a period of 90 days or entry of an order for relief in such case; or
the entry of a decree or order of a court having jurisdiction in the
premises for the appointment on the ground of insolvency or bankruptcy of a
receiver, custodian, liquidator, trustee or assignee in bankruptcy or
insolvency of such Person 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
(b) the institution by such Person of proceedings to be
adjudicated a voluntary bankrupt, or the consent by such Person to the
filing of a bankruptcy proceeding against it, or the filing by such Person
of a petition or answer or consent seeking liquidation or reorganization
under the Federal Bankruptcy Code or other similar applicable Federal or
State law, or the consent by such Person to the filing of any such petition
or 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 such Person or of its property, or shall make a general
assignment for the benefit of creditors.
"Bankruptcy Laws" has the meaning specified in Section 1009.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor's Board of Directors, or such committee of the
Board of Directors or officers of the Company to which authority to act on
behalf of the Board of Directors has been delegated, and to be in full
force and effect on the date of such certification, and delivered to the
appropriate Trustee.
"Book Entry Preferred Securities Certificates" means certificates
representing Preferred Securities issued in global, fully registered form
to the Clearing Agency as described in Section 511.
"Business Day" means a day other than (a) a Saturday or Sunday,
(b) a day on which banking institutions in The City of New York are
authorized or required by law or executive order to remain closed, or (c) a
day on which the Property Trustee's Corporate Trust Office or the Corporate
Trust Office of the Debenture Trustee is closed for business.
3
<PAGE>
"Certificate Depository Agreement" means the agreement among the
Trust, the Depositor and The Depository Trust Company, as the initial
Clearing Agency, dated as of the Closing Date, relating to the Trust
Securities Certificates, substantially in the form attached as Exhibit B,
as the same may be amended and supplemented from time to time.
"Certificate of Trust" means the certificate of trust filed with
the Secretary of State of the State of Delaware with respect to the Trust,
as amended or restated from time to time.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The Depository Trust Company will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
"Closing Date" means the date of execution and delivery of this
Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this instrument
such Commission is not existing and performing the duties now assigned to
it under the Trust Indenture Act, then the body performing such duties at
such time.
"Common Security" means an undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount of $25 and having the
rights provided therefor in this Trust Agreement, including the right to
receive Distributions and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as
Exhibit C.
"Corporate Trust Office" means the principal corporate trust
office of the Property Trustee located at 101 Barclay Street, 21W, in New
York, New York 10286.
"Debenture Event of Default" means an "Event of Default" as
defined in the Indenture.
"Debenture Redemption Date" means, with respect to any Debentures
to be redeemed under the Indenture, the date fixed for redemption under the
Indenture.
"Debenture Tax Event" means a "Tax Event" as defined in the Indenture.
4
<PAGE>
"Debenture Trustee" means The Bank of New York, a New York banking
corporation organized under the laws of the State of New York and any
successor thereto, as trustee under the Indenture.
"Debentures" means the $___________ aggregate principal amount of
the Depositor's _____% Junior Subordinated Deferrable Interest Debentures,
Series C, issued pursuant to the Indenture.
"Definitive Preferred Securities Certificates" means either or
both (as the context requires) of (a) Preferred Securities Certificates
issued as Book-Entry Preferred Securities Certificates as provided in
Section 511(a) and (b) Preferred Securities Certificates issued in
certificated, fully registered form as provided in Section 513.
"Delaware Bank" has the meaning specified in the preamble to this
Trust Agreement.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. (ss.) 3801, et seq., as it may be amended from
time to time.
"Delaware Trustee" means the commercial bank or trust company
identified as the "Delaware Trustee" in the preamble to this Trust
Agreement solely in its capacity as Delaware Trustee of the Trust formed
and continued hereunder and not in its individual capacity, or its
successor in interest in such capacity, or any successor trustee appointed
as herein provided.
"Depositor" has the meaning specified in the preamble to this
Trust Agreement.
"Distribution Date" has the meaning specified in Section 401(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 401.
"Event of Default" means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Trust in the payment of any Distribution
when it becomes due and payable, and continuation of such default for a
period of 30 days; or
(c) default by the Trust in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
5
<PAGE>
(d) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Trustees in this Trust
Agreement (other than a covenant or warranty a default in the performance
of which or the breach of which is dealt with in clause (b) or (c), above)
and continuation of such default or breach for a period of 60 days after
there has been given, by registered or certified mail, to the defaulting
Trustee or Trustees by the Holders of at least 25% in aggregate liquidation
preference of the Outstanding Preferred Securities a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the
Property Trustee and the failure by the Depositor to appoint a successor
Property Trustee within 60 days thereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities between the Depositor and the Trust, substantially in the form
attached as Exhibit D, as amended from time to time.
"Expiration Date" has the meaning specified in Section 901.
"Extension Period" has the meaning specified in Section 4.01 of
the Third
Supplemental Indenture.
"Global Debenture" has the meaning specified in the Indenture.
"Guarantee" means the Guarantee Agreement executed and delivered
by the Depositor and The Bank of New York, as trustee, contemporaneously
with the execution and delivery of this Trust Agreement, for the benefit of
the holders of the Preferred Securities, as amended from time to time.
"Indenture" means the Indenture, dated as of May 1, 1995, as
supplemented by a First Supplemental Indenture, dated as of May 1, 1995, a
Second Supplemental Indenture, dated as of October 1, 1995 and a Third
Supplemental Indenture, dated as of May __, 1996 between the Depositor and
the Debenture Trustee, as trustee, as amended or supplemented from time to
time.
"Investment Company Event" means the receipt by the Trust of an
Opinion of Counsel, rendered by a law firm having a recognized national tax
and securities law practice, to the effect that, as a result of the
occurrence of a change in law or regulation or a change in interpretation
or application of law or regulation by any legislative body, court,
governmental agency or regulatory authority (a "Change in 1940 Act Law"),
the Trust is or will be considered an "investment Company" that is required
to be registered under the 1940
6
<PAGE>
Act, which Change in 1940 Act Law becomes effective on or after the date of
original issuance of the Preferred Securities under this Trust Agreement.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed
of trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to the
principal amount of Debentures to be contemporaneously redeemed in
accordance with the Indenture and the proceeds of which will be used to pay
the Redemption Price of such Trust Securities and (b) with respect to a
distribution of Debentures to Holders of Trust Securities in connection
with a termination or liquidation of the Trust, Debentures having a
principal amount equal to the Liquidation Amount of the Trust Securities of
the Holder to whom such Debentures are distributed.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
"Liquidation Date" means the date on which Debentures are to
distributed to Holders of Trust Securities in connection with a termination
and liquidation of the Trust pursuant to Section 904(a).
"Liquidation Distribution" has the meaning specified in Section 904(d).
"1940 Act" means the Investment Company Act of 1940, as amended.
"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 Depositor, and delivered to the appropriate
Trustee. One of the officers signing an Officers' Certificate given
pursuant to Section 816 shall be the principal executive, financial or
accounting officer of the Depositor. Any Officers' Certificate delivered
with respect to compliance with a condition or covenant provided for in
this Trust Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering the
Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is necessary to
enable such officer to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
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(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Trust, the Property Trustee, the Delaware Trustee or the
Depositor, but not an employee of any thereof, and who shall be reasonably
acceptable to the Property Trustee.
"Original Trust Agreement" has the meaning specified in the
recitals to this Trust
Agreement.
"Outstanding", when used with respect to Preferred Securities,
means, as of the date of determination, all Preferred Securities
theretofore executed and delivered under this Trust Agreement, except:
(a) Preferred Securities theretofore cancelled by the
Property Trustee or delivered to the Property Trustee for cancellation;
(b) Preferred Securities for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Property Trustee or any Paying Agent for the Holders of such Preferred
Securities; provided that, if such Preferred Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this Trust
Agreement; and
(c) Preferred Securities which have been paid or in exchange
for or in lieu of which other Preferred Securities have been executed and
delivered pursuant to Sections 504, 505, 511 and 513;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Preferred Securities owned by the Depositor, any Trustee or any
Affiliate of the Depositor or any Trustee shall be disregarded and deemed
not to be Outstanding, except that (a) in determining whether any Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Preferred Securities that such
Trustee knows to be so owned shall be so disregarded and (b) the foregoing
shall not apply at any time when all of the outstanding Preferred
Securities are owned by the Depositor, one or more of the Trustees and/or
any such Affiliate. Preferred Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to
the satisfaction of the Administrative Trustees the pledgee's right so to
act with respect to such Preferred Securities and that the pledgee is not
the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a Book
Entry Preferred Securities Certificate as reflected in the records of the
Clearing Agency or, if a Clearing Agency Participant is not the Owner, then
as reflected in the records of a Person maintaining
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an account with such Clearing Agency (directly or indirectly, in accordance
with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 509 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee with the Bank in
its trust department for the benefit of the Securityholders in which all
amounts paid in respect of the Debentures will be held and from which the
Property Trustee shall make payments to the Securityholders in accordance
with Sections 401 and 402.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability Company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount of $25 and having the
rights provided therefor in this Trust Agreement, including the right to
receive Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as
Exhibit E.
"Property Trustee" means the commercial bank or trust Company
identified as the "Property Trustee" in the preamble to this Trust
Agreement solely in its capacity as Property Trustee of the Trust
heretofore formed and continued hereunder and not in its individual
capacity, or its successor in interest in such capacity, or any successor
property trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date and the stated
maturity of the Debentures shall be a Redemption Date for a Like Amount of
Trust Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the
premium, if any, paid by the Depositor upon the concurrent redemption of a
Like Amount of Debentures, allocated on a pro rata basis (based on
Liquidation Amounts) among the Trust Securities.
"Relevant Trustee" shall have the meaning specified in Section 810.
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"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 504.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or Securities is registered in the Securities Register; any such
Person is a beneficial owner within the meaning of the Delaware Business
Trust Act.
"Tax Event" means the receipt by the Trust of an Opinion of
Counsel, rendered by a law firm having a recognized national tax and
securities practice, to the effect that, as a result of any amendment to,
or change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision
or taxing authority thereof or therein, or as a result of any official
administrative pronouncement or judicial decision interpreting or applying
such laws or regulations, which amendment or change is effective or which
pronouncement or decision is announced on or after the date of issuance of
the Preferred Securities under this Trust Agreement, there is more than an
insubstantial risk that (i) the Trust is, or will be within 90 days after
the date of such Opinion of Counsel, subject to United States federal
income tax with respect to income received or accrued on the Debentures,
(ii) interest payable by the Depositor on the Debentures is not, or within
90 days after the date of such Opinion of Counsel, will not be, deductible
by the Depositor, in whole or in part, for United States federal income tax
purposes or (iii) the Trust is, or will be within 90 days after the date of
such Opinion of Counsel, subject to more than a de minimis amount of other
taxes, duties, assessments or other governmental charges.
"Third Supplemental Indenture" means the Third Supplemental
Indenture dated as of May ___, 1996 between the Depositor and the Debenture
Trustee, as Trustee.
"Trust" means the Delaware business trust created and continued
hereby and identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement,
as the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including all exhibits hereto, including, for
all purposes of this Trust Agreement and any such modification, amendment
or supplement, the provisions of the Trust Indenture Act that are deemed to
be a part of and govern this Trust Agreement and any such modification,
amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after
such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) the rights of the
Property Trustee under the Guarantee, (c) any cash on deposit in, or owing
to, the Payment Account and
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(d) all proceeds and rights in respect of the foregoing and any other
property and assets for the time being held or deemed to be held by the
Property Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities or the
Preferred
Securities.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the Delaware
Trustee and the Administrative Trustees.
"Underwriting Agreement" means the Underwriting Agreement, dated
as of ___________________, 1996, among the Trust, the Depositor and the
Underwriters named therein.
ARTICLE II
Establishment of the Trust
Section 201. Name.
The Trust created and continued hereby shall be known as
"PacifiCorp Capital I," as such name may be modified from time to time by
the Administrative Trustees following written notice to the Holders of
Trust Securities and the other Trustees, in which name the Trustees may
conduct the business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and sue and be sued.
Section 202. Office of the Delaware Trustee; Principal Place of
Business.
The address of the Delaware Trustee in the State of Delaware is
c/o The Bank of New York (Delaware), 23 White Clay Center, Newark, Delaware
19711, Attention: Corporate Trust Administration, or such other address in
the State of Delaware as the Delaware Trustee may designate by written
notice to the Securityholders and the Depositor. The principal executive
office of the Trust is c/o PacifiCorp, 700 NE Multnomah, Suite 1600,
Portland, Oregon 97232.
Section 203. Initial Contribution of Trust Property;
Organizational Expenses.
The Trustees acknowledge receipt in trust from the Depositor in
connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay
organizational expenses of the Trust as they arise or shall, upon request
of any Trustee, promptly reimburse such Trustee for any such expenses paid
by such
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Trustee. The Depositor shall make no claim upon the Trust Property for the
payment of such expenses.
Section 204. Issuance of the Preferred Securities.
On May __, 1996 the Depositor and an Administrative Trustee, on
behalf of the Trust and pursuant to the Original Trust Agreement, executed
and delivered the Underwriting Agreement. Contemporaneously with the
execution and delivery of this Trust Agreement, an Administrative Trustee,
on behalf of the Trust, shall execute in accordance with Section 502 and
deliver in accordance with the Underwriting Agreement Preferred Securities
Certificates, registered in the name of the nominee of the initial Clearing
Agency, in an aggregate amount of _____________ Preferred Securities having
an aggregate Liquidation Amount of $____________, against receipt of the
aggregate purchase price of such Preferred Securities of
$__________________, which amount such Administrative Trustee shall
promptly deliver to the Property Trustee.
Section 205. Issuance of the Common Securities; Subscription and
Purchase of Debentures.
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Trust, shall execute
in accordance with Section 502 and deliver to the Depositor Common
Securities Certificates, registered in the name of the Depositor, in an
aggregate amount of _____________ Common Securities having an aggregate
Liquidation Amount of $__________ against payment by the Depositor of such
amount. Contemporaneously therewith, an Administrative Trustee, on behalf
of the Trust, shall subscribe to and purchase from the Depositor
Debentures, registered in the name of the Property Trustee on behalf of the
Trust and having an aggregate principal amount equal to $___________, and,
in satisfaction of the purchase price for such Debentures, the Property
Trustee, on behalf of the Trust, shall deliver to the Depositor the sum of
$__________.
Section 206. Declaration of Trust.
The exclusive purposes and functions of the Trust are (a) to issue
and sell Trust Securities and use the proceeds from such sale to acquire
the Debentures, and (b) to engage in those activities necessary, convenient
or incidental thereto. The Depositor hereby appoints the Trustees as
trustees of the Trust, to have all the rights, powers and duties to the
extent set forth herein, and the Trustees hereby accept such appointment.
The Property Trustee hereby declares that it will hold the Trust Property
in trust upon and subject to the conditions set forth herein for the
benefit of the Securityholders. The Administrative Trustees shall have all
rights, powers and duties set forth herein and in accordance with
applicable law with respect to accomplishing the purposes of the Trust. The
Delaware Trustee shall not be entitled to exercise any powers, nor shall
the Delaware Trustee have any of the duties and responsibilities, of the
Property Trustee or the Administrative Trustees set forth herein. The
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Delaware Trustee shall be one of the Trustees of the Trust for the sole and
limited purpose of fulfilling the requirements of Section 3807 of the
Delaware Business Trust Act.
Section 207. Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in
accordance with the terms of this Trust Agreement. Subject to the
limitations set forth in paragraph (b) of this Section and Article VIII,
and in accordance with the following provisions (i) and (ii), the
Administrative Trustees shall have the authority to enter into all
transactions and agreements determined by the Administrative Trustees to be
appropriate in exercising the authority, express or implied, otherwise
granted to the Administrative Trustees under this Trust Agreement, and to
perform all acts in furtherance thereof, including without limitation, the
following:
(i) As among the Trustees, each Administrative Trustee,
acting singly or jointly, shall have the power and authority to act on
behalf of the Trust with respect to the following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to
execute, deliver and perform on behalf of the Trust, the Expense Agreement
and the Certificate Depository Agreement and such other agreements or
documents as may be necessary or desirable in connection with the purposes
and function of the Trust;
(C) assisting in the registration of the Preferred
Securities under the Securities Act of 1933, as amended, and under state
securities or blue sky laws, and the qualification of this Trust Agreement
as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred
Securities upon such securities exchange or exchanges as shall be
determined by the Depositor and the registration of the Preferred
Securities under the Securities Exchange Act of 1934, as amended, and the
preparation and filing of all periodic and other reports and other
documents pursuant to the foregoing;
(E) the sending of notices (other than notices of
default) and other information regarding the Trust Securities and the
Debentures to the Securityholders in accordance with this Trust Agreement;
(F) the appointment of a Paying Agent,
authenticating agent and Securities Registrar in accordance with this Trust
Agreement;
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(G) to the extent provided in this Trust Agreement,
the winding up of the affairs of and liquidation of the Trust and the
preparation, execution and filing of the certificate of cancellation with
the Secretary of State of the State of Delaware;
(H) to take all action that may be necessary or
appropriate for the preservation and the continuation of the Trust's valid
existence, rights, franchises and privileges as a statutory business trust
under the laws of the State of Delaware and of each other jurisdiction in
which such existence is necessary to protect the limited liability of the
Holders of the Preferred Securities or to enable the Trust to effect the
purposes for which the Trust was created; and
(H) the taking of any action incidental to the
foregoing as the Administrative Trustees may from time to time determine is
necessary or advisable to give effect to the terms of this Trust Agreement
for the benefit of the Securityholders (without consideration of the effect
of any such action on any particular Securityholder).
(ii) As among the Trustees, the Property Trustee shall
have the power, duty and authority to act on behalf of the Trust with
respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any
other payments made in respect of the Debentures in the Payment Account;
(D) the distribution of amounts owed to the
Securityholders in respect of the Trust Securities in accordance with the
terms of this Trust Agreement;
(E) the exercise of all of the rights, powers and
privileges of a holder of the Debentures;
(F) the sending of notices of default and other
information regarding the Trust Securities and the Debentures to the
Securityholders in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement,
the winding up of the affairs of and liquidation of the Trust;
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(I) after an Event of Default the taking of any
action incidental to the foregoing as the Property Trustee may from time to
time determine is necessary or advisable to give effect to the terms of
this Trust Agreement and protect and conserve the Trust Property for the
benefit of the Securityholders (without consideration of the effect of any
such action on any particular Securityholder);
(J) registering transfers of the Trust Securities
in accordance with this Trust Agreement; and
(K) except as otherwise provided in this Section
207(a)(ii), the Property Trustee shall have none of the duties,
liabilities, powers or the authority of the Administrative Trustees set
forth in Section 207(a)(i).
(b) So long as this Trust Agreement remains in effect, the
Trust (or the Trustees acting on behalf of the Trust) shall not undertake
any business, activities or transaction except as expressly provided herein
or contemplated hereby. In particular, the Trustees shall not (i) acquire
any investments or engage in any activities not authorized by this Trust
Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off
or otherwise dispose of any of the Trust Property or interests therein,
including to Securityholders, except as expressly provided herein, (iii)
take any action that would cause the Trust to fail or cease to qualify as a
"grantor trust" for United States federal income tax purposes, (iv) incur
any indebtedness for borrowed money or issue any other debt or (v) take or
consent to any action that would result in the placement of a Lien on any
of the Trust Property. The Administrative Trustees shall defend all claims
and demands of all Persons at any time claiming any Lien on any of the
Trust Property adverse to the interest of the Trust or the Securityholders
in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred
Securities, the Depositor shall have the right and responsibility to assist
the Trust with respect to, or effect on behalf of the Trust, the following
(and any actions taken by the Depositor in furtherance of the following
prior to the date of this Trust Agreement are hereby ratified and confirmed
in all respects):
(i) the preparation and filing by the Trust with the
Commission and the execution on behalf of the Trust of a registration
statement on the appropriate form in relation to the Preferred Securities
and the Debentures, including any amendments thereto;
(ii) the determination of the states in which to take
appropriate action to qualify or register for sale all or part of the
Preferred Securities and to do any and all such acts, other than actions
which must be taken by or on behalf of the Trust, and advise the Trustees
of actions they must take on behalf of the Trust, and prepare for execution
and filing any documents to be executed and filed by the Trust or on behalf
of the Trust, as the Depositor deems necessary or advisable in order to
comply with the applicable laws of any such States;
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(iii) the preparation for filing by the Trust and
execution on behalf of the Trust of an application to the New York Stock
Exchange or any other national stock exchange or other organizations for
listing upon notice of issuance of any Preferred Securities and to file or
cause an Administrative Trustee to file thereafter with such exchange or
organization such notifications and documents as may be necessary from time
to time;
(iv) the preparation for filing by the Trust with the
Commission and the execution on behalf of the Trust of a registration
statement on Form 8-A relating to the registration of the Preferred
Securities under Section 12(b) or 12(g) of the Exchange Act, including any
amendments thereto;
(v) the negotiation of the terms of, and the execution
and delivery of, the Underwriting Agreement providing for the sale of the
Preferred Securities; and
(vi) the taking of any other actions necessary or
desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs
of the Trust and to operate the Trust so that the Trust will not be deemed
to be an "investment Company" required to be registered under the 1940 Act,
will be classified as a "grantor trust" and not as an association taxable
as a corporation for United States federal income tax purposes and so that
the Debentures will be treated as indebtedness of the Depositor for United
States federal income tax purposes. In this connection, subject to Section
1002, the Depositor and the Administrative Trustees are authorized to take
any action, not inconsistent with applicable law or this Trust Agreement,
that each of the Depositor and the Administrative Trustees determines in
their discretion to be necessary or desirable for such purposes.
Section 208. Assets of Trust.
The assets of the Trust shall consist of the Trust Property.
Section 209. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in
the Property Trustee (in its capacity as such) and shall be held and
administered by the Property Trustee for the benefit of the Securityholders
in accordance with this Trust Agreement.
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ARTICLE III
Payment Account
Section 301. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee
shall establish the Payment Account. The Property Trustee and any agent of
the Property Trustee shall have exclusive control and sole right of
withdrawal with respect to the Payment Account for the purpose of making
deposits in withdrawals from the Payment Account in accordance with this
Trust Agreement. All monies and other property deposited or held from time
to time in the Payment Account shall be held by the Property Trustee in the
Payment Account for the exclusive benefit of the Securityholders and for
distribution as herein provided, including (and subject to) any priority of
payments provided for herein.
(b) The Property Trustee shall deposit in the Payment
Account, promptly upon receipt, all payments of principal of or interest
on, and any other payments or proceeds with respect to, the Debentures.
Amounts held in the Payment Account shall not be invested by the Property
Trustee pending distribution thereof.
ARTICLE IV
Distributions; Redemption
Section 401. Distributions.
(a) Distributions on the Trust Securities shall be
cumulative, and will accumulate whether or not there are funds of the Trust
available for the payment of Distributions. Distributions shall accumulate
from __________________, 1996, and, except during any Extension Period with
respect to the Debentures, shall be payable quarterly in arrears on March
31, June 30, September 30 and December 31 of each year, commencing on June
30, 1996. If any date on which a Distribution is otherwise payable on the
Trust Securities is not a Business Day, then the payment of such
Distribution shall be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect of any such
delay) except that, if such Business Day is in the next succeeding calendar
year, payment of such Distribution shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if
made on such date (each date on which distributions are payable in
accordance with this Section 401(a) a "Distribution Date").
(b) The Trust Securities represent undivided beneficial
interests in the Trust Property, and, as a practical matter, the
Distributions on the Trust Securities shall be payable at a rate of
_______% per annum of the Liquidation Amount of the Trust Securities. The
amount of Distributions payable for any full period shall be computed on
the basis of a 360-day year of twelve 30-day months. The amount of
Distributions for any partial period
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shall be computed on the basis of the number of days elapsed in a 360-day
year of twelve 30- day months. During any Extension Period with respect to
the Debentures, Distributions on the Preferred Securities will be deferred
for a period equal to the Extension Period. The amount of Distributions
payable for any period shall include the Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be made
by the Property Trustee solely from the Payment Account and shall be
payable on each Distribution Date only to the extent that the Trust has
funds then on hand and immediately available in the Payment Account for the
payment of such Distributions.
(d) Distributions on the Trust Securities with respect to
a Distribution Date shall be payable to the Holders thereof as they appear
on the Securities Register for the Trust Securities on the relevant record
date, which shall be one Business Day prior to such Distribution Date;
provided, however, that in the event that the Preferred Securities do not
remain in book-entry-only form, the relevant record date shall be the date
15 days prior to the relevant Distribution Date.
Section 402. Redemption.
(a) On each Debenture Redemption Date and on the stated
maturity of the Debentures, the Trust will be required to redeem a Like
Amount of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed not less than 30 nor
more than 60 days prior to the Redemption Date to each Holder of Trust
Securities to be redeemed, at such Holder's address appearing in the
Security Register. The Trustee shall have no responsibility for the
accuracy of any CUSIP number contained in such notice. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust
Securities are to be redeemed, the identification and the total Liquidation
Amount of the particular Trust Securities to be redeemed; and
(v) that on the Redemption Date the Redemption
Price will become due and payable upon each such Trust Security to be
redeemed and that distributions thereon will cease to accumulate on and
after said date.
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(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price with the proceeds from the
contemporaneous redemption of Debentures. Redemptions of the Trust
Securities shall be made and the Redemption Price shall be payable on each
Redemption Date only to the extent that the Trust has immediately available
funds then on hand and available in the Payment Account for the payment of
such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in
respect of any Preferred Securities, then, by 12:00 noon, New York City
time, on the Redemption Date, subject to Section 402(c), the Property
Trustee will, so long as the Preferred Securities are in book-entry-only
form, deposit with the Clearing Agency for the Preferred Securities funds
sufficient to pay the applicable Redemption Price and will give such
Clearing Agency irrevocable instructions and authority to pay the
Redemption Price to the holders thereof. If the Preferred Securities are no
longer in book-entry-only form, the Property Trustee, subject to Section
402(c), will deposit with the Paying Agent funds sufficient to pay the
applicable Redemption Price and will give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price to the Holders
thereof upon surrender of their Preferred Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be
payable to the Holders of such Trust Securities as they appear on the
Register for the Trust Securities on the relevant record dates for the
related Distribution Dates. If notice of redemption shall have been given
and funds deposited as required, then upon the date of such deposit, all
rights of Securityholders holding Trust Securities so called for redemption
will cease, except the right of such Securityholders to receive the
Redemption Price and any Distribution payable on or prior to the Redemption
Date, but without interest, and such Securities will cease to be
Outstanding. In the event that any date on which any Redemption Price is
payable is not a Business Day, then payment of the Redemption Price payable
on such date will be made on the next succeeding day that is a Business Day
(and without any interest or other payment in respect of any such delay),
except that, if such Business Day falls in the next calendar year, such
payment will be made on the immediately preceding Business Day, in each
case, with the same force and effect as if made on such date. In the event
that payment of the Redemption Price in respect of any Trust Securities
called for redemption is improperly withheld or refused and not paid either
by the Trust or by the Depositor pursuant to the Guarantee, Distributions
on such Trust Securities will continue to accumulate, at the then
applicable rate, from the Redemption Date originally established by the
Trust for such Trust Securities to the date such Redemption Price is
actually paid, in which case the actual payment date will be the date fixed
for redemption for purposes of calculating the Redemption Price.
(e) Payment of the Redemption Price on the Trust Securities
shall be made to the recordholders thereof as they appear on the Securities
Register for the Trust Securities on the relevant record date, which shall
be one Business Day prior to the relevant Redemption Date; provided,
however, that in the event that the Preferred Securities do not
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remain in book-entry-only form, the relevant record date shall be the date
fifteen days prior to the relevant Redemption Date.
(f) Subject to Section 403(a), if less than all the
Outstanding Trust Securities are to be redeemed on a Redemption Date, then
the aggregate Liquidation Amount of Trust Securities to be redeemed shall
be allocated on a pro rata basis (based on Liquidation Amounts) among the
Common Securities and the Preferred Securities. The particular Preferred
Securities to be redeemed shall be selected not more than 60 days prior to
the Redemption Date by the Property Trustee from the Outstanding Preferred
Securities not previously called for redemption, by such method (including,
without limitation, by lot) as the Property Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of
portions (equal to $25 or an integral multiple of $25 in excess thereof) of
the Liquidation Amount of Preferred Securities of a denomination larger
than $25. The Property Trustee shall promptly notify the Security Registrar
in writing of the Preferred Securities selected for redemption and, in the
case of any Preferred Securities selected for partial redemption, the
Liquidation Amount thereof to be redeemed. For all purposes of this Trust
Agreement, unless the context otherwise requires, all provisions relating
to the redemption of Preferred Securities shall relate, in the case of any
Preferred Securities redeemed or to be redeemed only in part, to the
portion of the Liquidation Amount of Preferred Securities which has been or
is to be redeemed.
Section 403. Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts,
if applicable) on, and the Redemption Price of, the Trust Securities, as
applicable, shall be made, subject to Section 402(f), pro rata among the
Common Securities and the Preferred Securities based on the Liquidation
Amount of the Trust Securities; provided, however, that if on any
Distribution Date or Redemption Date any Event of Default resulting from a
Debenture Event of Default shall have occurred and be continuing, no
payment of any Distribution (including Additional Amounts, if applicable)
on, or Redemption Price of, any Common Security, and no other payment on
account of the redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all accumulated
and unpaid Distributions (including Additional Amounts, if applicable) on
all Outstanding Preferred Securities for all Distribution periods
terminating on or prior thereto, or in the case of payment of the
Redemption Price the full amount of such Redemption Price on all
Outstanding Preferred Securities then called for redemption, shall have
been made or provided for, and all funds immediately available to the
Property Trustee shall first be applied to the payment in full in cash of
all Distributions (including Additional Amounts, if applicable) on, or the
Redemption Price of, Preferred Securities then due and payable.
(b) In the case of the occurrence of any Event of Default
resulting from a Debenture Event of Default, the Holder of Common
Securities will be deemed to have waived any right to act with respect to
any such Event of Default under this Trust Agreement until the effect of
all such Events of Default with respect to the Preferred Securities shall
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have been cured, waived or otherwise eliminated. Until any such Event of
Default under this Trust Agreement with respect to the Preferred Securities
shall have been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the Holders of the Preferred
Securities and not the Holder of the Common Securities, and only the
Holders of the Preferred Securities will have the right to direct the
Property Trustee to act on their behalf.
Section 404. Payment Procedures.
Payments of Distributions (including Additional Amounts, if
applicable) in respect of the Preferred Securities shall be made by check
mailed to the address of the Person entitled thereto as such address shall
appear on the Securities Register or, if the Preferred Securities are held
by a Clearing Agency, such Distributions shall be made to the Clearing
Agency in immediately available funds, which shall credit the relevant
Persons' accounts at such Clearing Agency on the applicable distribution
dates. Payments in respect of the Common Securities shall be made in such
manner as shall be mutually agreed between the Property Trustee and the
Common Securityholder.
Section 405. Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be
prepared), at the Depositor's expense, and file all United States federal,
state and local tax and information returns and reports required to be
filed by or in respect of the Trust. In this regard, the Administrative
Trustees shall (a) prepare and file (or cause to be prepared and filed) the
appropriate Internal Revenue Service Form required to be filed in respect
of the Trust in each taxable year of the Trust and (b) prepare and furnish
(or cause to be prepared and furnished) to each Securityholder the
appropriate Internal Revenue Service form required to be furnished to such
Securityholder or the information required to be provided on such form. The
Administrative Trustees shall provide the Depositor with a copy of all such
returns and reports promptly after such filing or furnishing. The Property
Trustee shall comply with United States federal withholding and backup
withholding tax laws and information reporting requirements with respect to
any payments to Securityholders under the Trust Securities.
Section 406. Payment of Taxes, Duties, Etc. of the Trust.
Upon receipt under the Debentures of Additional Sums (as defined
in the Indenture), the Property Trustee at the direction of an
Administrative Trustee or Depositor shall promptly pay any taxes, duties or
governmental charges of whatsoever nature (other than withholding taxes)
imposed on the Trust by the United States or any other taxing authority.
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Section 407. Payments under Indenture.
Any amount payable hereunder to any Holder of Preferred Securities
shall be reduced by the amount of any corresponding payment such Holder has
directly received under the Indenture pursuant to Section 514(b) or (c)
hereof.
ARTICLE V
Trust Securities Certificates
Section 501. Initial Ownership.
Upon the creation of the Trust and the contribution by the
Depositor pursuant to Section 203 and until the issuance of the Trust
Securities, and at any time during which no Trust Securities are
outstanding, the Depositor shall be the sole beneficial owner of the Trust.
Section 502. The Trust Securities Certificates.
The Preferred Securities Certificates shall be issued in minimum
denominations of $25 Liquidation Amount and integral multiples of $25 in
excess thereof, and the Common Securities Certificates shall be issued in
denominations of $25 Liquidation Amount and integral multiples thereof. The
Trust Securities Certificates shall be executed on behalf of the Trust by
manual signature of at least one Administrative Trustee. Trust Securities
Certificates bearing the manual signatures of individuals who were, at the
time when such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall be validly issued and entitled to the benefits
of this Trust Agreement, notwithstanding that such individuals or any of
them shall have ceased to be so authorized prior to the delivery of such
Trust Securities Certificates or did not hold such offices at the date of
delivery of such Trust Securities Certificates. A transferee of a Trust
Securities Certificate shall become a Security-holder, and shall be
entitled to the rights and subject to the obligations of a Securityholder
hereunder, upon due registration of such Trust Securities Certificate in
such transferee's name pursuant to Sections 504, 511 and 513.
Section 503. Execution and Delivery of Trust Securities
Certificates.
On the Closing Date, the Administrative Trustees shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 204 and 205, to be executed on behalf of the Trust by at least one
of the Administrative Trustees and delivered to or upon the written order
of the Depositor, signed by its President, any Vice President, the
Treasurer or any Assistant Treasurer without further corporate action by
the Depositor, in authorized denominations.
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Section 504. Registration of Transfer and Exchange of Preferred
Securities Certificates.
The Depositor shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 508, a register or registers for the
purpose of registering Trust Securities Certificates and transfers and
exchanges of Preferred Securities Certificates (herein referred to as the
"Securities Register") in which the registrar designated by the Depositor
(the "Securities Registrar"), subject to such reasonable regulations as it
may prescribe, shall provide for the registration of Preferred Securities
Certificates and Common Securities Certificates (subject to Section 510 in
the case of the Common Securities Certificates) and registration of
transfers and exchanges of Preferred Securities Certificates as herein
provided. The Property Trustee shall be the initial Securities Registrar.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to
Section 508, the Administrative Trustees or any one of them shall execute
and deliver, in the name of the designated transferee or transferees, one
or more new Preferred Securities Certificates in authorized denominations
of a like aggregate Liquidation Amount dated the date of execution by such
Administrative Trustee or Trustees. The Securities Registrar shall not be
required to register the transfer of any Preferred Securities that have
been called for redemption. At the option of a Holder, Preferred Securities
Certificates may be exchanged for other Preferred Securities Certificates
in authorized denominations of the same class and of a like aggregate
Liquidation Amount upon surrender of the Preferred Securities Certificates
to be exchanged at the office or agency maintained pursuant to Section 508.
Every Preferred Securities Certificate presented or surrendered
for registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Property Trustee and the
Securities Registrar duly executed by the Holder or his attorney duly
authorized in writing. Each Preferred Securities Certificate surrendered
for registration of transfer or exchange shall be cancelled and
subsequently disposed of by the Property Trustee in accordance with its
customary practice. The Trust shall not be required to (i) issue, register
the transfer of, or exchange any Preferred Securities during a period
beginning at the opening of business 15 calendar days before the date of
mailing of a notice of redemption of any Preferred Securities called for
redemption and ending at the close of business on the day of such mailing
or (ii) register the transfer of or exchange any Preferred Securities so
selected for redemption, in whole or in part, except the unredeemed portion
of any such Preferred Securities being redeemed in part.
No service charge shall be made for any registration of transfer
or exchange of Preferred Securities Certificates, but the Securities
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Preferred Securities Certificates.
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Section 505. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.
If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities Registrar
shall receive evidence to its satisfaction of the destruction, loss or
theft of any Trust Securities Certificate and (b) there shall be delivered
to the Securities Registrar and the Administrative Trustees such security
or indemnity as may be required by them to save each of them harmless, then
in the absence of notice that such Trust Securities Certificate shall have
been acquired by a bona fide purchaser, the Administrative Trustees, or any
one of them, on behalf of the Trust shall execute and make available for
delivery, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Trust Securities Certificate, a new Trust Securities Certificate
of like class, tenor and denomination. In connection with the issuance of
any new Trust Securities Certificate under this Section, the Administrative
Trustees or the Securities Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith. Any duplicate Trust Securities Certificate
issued pursuant to this Section shall constitute conclusive evidence of an
undivided beneficial interest in the assets of the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
Section 506. Persons Deemed Securityholders.
The Trustees, the Paying Agent and the Securities Registrar shall
treat the Person in whose name any Trust Securities Certificate shall be
registered in the Securities Register as the owner of such Trust Securities
Certificate for the purpose of receiving Distributions and for all other
purposes whatsoever, and neither the Trustees nor the Securities Registrar
shall be bound by any notice to the contrary.
Section 507. Access to List of Securityholders' Names and
Addresses.
At any time when the Property Trustee is not also acting as the
Securities Registrar, the Administrative Trustees or the Depositor shall
furnish or cause to be furnished (a) to the Property Trustee, semi-annually
on or before January 15 and July 15 in each year, a list, in such form as
the Property Trustee may reasonably require, of the names and addresses of
the Securityholders as of the most recent Record Date and (b) to the
Property Trustee, promptly after receipt by any Administrative Trustee or
the Depositor of a request therefor from the Property Trustee in order to
enable the Property Trustee to discharge its obligations under this Trust
Agreement, in each case to the extent such information is in the possession
or control of the Administrative Trustees or the Depositor and is not
identical to a previously supplied list or has not otherwise been received
by the Property Trustee in its capacity as Securities Registrar. The rights
of Securityholders to communicate with other Securityholders with respect
to their rights under this Trust Agreement or under the Trust Securities,
and the corresponding rights of the Trustee shall be as provided in the
Trust Indenture Act. Each Holder, by receiving and holding a Trust
Securities Certificate, and
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each owner shall be deemed to have agreed not to hold the Depositor, the
Property Trustee or the Administrative Trustees accountable by reason of
the disclosure of its name and address, regardless of the source from which
such information was derived.
Section 508. Maintenance of Office or Agency.
The Administrative Trustees shall maintain in The City of New
York, an office or offices or agency or agencies where Preferred Securities
Certificates may be surrendered for registration of transfer or exchange
and where notices and demands to or upon the Trustees in respect of the
Trust Securities Certificates may be served. The Administrative Trustees
initially designate the principal corporate trust office of the Property
Trustee, 101 Barclay Street, New York, NY 10286, as the principal corporate
trust office for such purposes. The Administrative Trustees shall give
prompt written notice to the Depositor and to the Securityholders of any
change in the location of the Securities Register or any such office or
agency.
Section 509. Appointment of Paying Agent.
The Paying Agent shall make distributions to Securityholders from
the Payment Account and shall report the amounts of such distributions to
the Property Trustee and the Administrative Trustees. Any Paying Agent
shall have the revocable power to withdraw funds from the Payment Account
for the purpose of making the Distributions referred to above. The
Administrative Trustees may revoke such power and remove the Paying Agent
if such Trustees determine in their sole discretion that the Paying Agent
shall have failed to perform its obligations under this Trust Agreement in
any material respect. The Paying Agent shall initially be the Property
Trustee, and any co-paying agent chosen by the Property Trustee, and
acceptable to the Administrative Trustees and the Depositor. Any Person
acting as Paying Agent shall be permitted to resign as Paying Agent upon 30
days' written notice to the Administrative Trustees, the Property Trustee
and the Depositor. In the event that the Property Trustee shall no longer
be the Paying Agent or a successor Paying Agent shall resign or its
authority to act be revoked, the Administrative Trustees shall appoint a
successor that is acceptable to the Property Trustee and the Depositor to
act as Paying Agent (which shall be a bank or trust company). The
Administrative Trustees shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Administrative Trustees to execute
and deliver to the Trustees an instrument in which such successor Paying
Agent or additional Paying Agent shall agree with the Trustees that as
Paying Agent, such successor Paying Agent or additional Paying Agent will
hold all sums, if any, held by it for payment to the Securityholders in
trust for the benefit of the Securityholders entitled thereto until such
sums shall be paid to such Securityholders. The Paying Agent shall return
all unclaimed funds to the Property Trustee and upon removal of a Paying
Agent such Paying Agent shall also return all funds in its possession to
the Property Trustee. The provisions of Sections 801, 803 and 806 shall
apply to the Property Trustee also in its role as Paying Agent, for so long
as the Property Trustee shall act as Paying Agent and, to the extent
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applicable, to any other paying agent appointed hereunder. Any reference in
this Agreement to the Paying Agent shall include any co-paying agent unless
the context requires otherwise.
Section 510. Ownership of Common Securities by Depositor.
On the Closing Date, the Depositor shall acquire and retain
beneficial and record ownership of the Common Securities. To the fullest
extent permitted by law, any attempted transfer of the Common Securities
(other than a transfer in connection with a merger or consolidation of the
Depositor into another corporation pursuant to Section 10.01 of the
Indenture) shall be void. The Administrative Trustees shall cause each
Common Securities Certificate issued to the Depositor to contain a legend
stating "THIS CERTIFICATE IS NOT TRANSFERABLE".
Section 511. Book-Entry Preferred Securities Certificates; Common
Securities Certificate.
(a) The Preferred Securities Certificates, upon original
issuance, will be issued in the form of a typewritten Preferred Securities
Certificate or Certificates representing Book-Entry Preferred Securities
Certificates, to be delivered to or held on behalf of The Depository Trust
Company, the initial Clearing Agency, by, or on behalf of, the Trust. Such
Book-Entry Preferred Securities Certificate or Certificates shall initially
be registered on the Securities Register in the name of Cede & Co., the
nominee of the initial Clearing Agency, and no beneficial owner will
receive a Definitive Preferred Securities Certificate representing such
beneficial owner's interest in such Preferred Securities, except as
provided in Section 513. Unless and until Definitive Preferred Securities
Certificates have been issued to beneficial owners pursuant to Section 513:
(i) the provisions of this Section 511(a) shall be in
full force and effect;
(ii) the Securities Registrar, the Paying Agent and the
Trustees shall be entitled to deal with the Clearing Agency for all
purposes of this Trust Agreement relating to the Book Entry Preferred
Securities Certificates (including the payment of the Liquidation Amount of
and Distributions on the Book-Entry Preferred Securities) as the sole
Holder of Book-Entry Preferred Securities and shall have no obligations to
the Owners thereof;
(iii) to the extent that the provisions of this Section
511 conflict with any other provisions of this Trust Agreement, the
provisions of this Section 511 shall control; and
(iv) the rights of the Owners of the Book-Entry
Preferred Securities Certificates shall be exercised only through the
Clearing Agency and shall be limited to those established by law and
agreements between such Owners and the Clearing Agency and/or the Clearing
Agency Participants. Pursuant to the Certificate Depository Agreement,
unless and
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until Definitive Preferred Securities Certificates are issued pursuant to
Section 513, the initial Clearing Agency will make book-entry transfers
among the Clearing Agency Participants and receive and transmit payments on
the Preferred Securities to such Clearing Agency Participants. Any Clearing
Agency designated pursuant hereto will not be deemed an agent of the
Trustees for any purpose.
(b) A single Common Securities Certificate representing the
Common Securities shall be issued to the Depositor in the form of a
definitive Common Securities Certificate.
Section 512. Notices to Clearing Agency.
To the extent that a notice or other communication to the Owners
is required under this Trust Agreement, unless and until Definitive
Preferred Securities Certificates shall have been issued to Owners pursuant
to Section 513, the Trustees shall give all such notices and communications
specified herein to be given to Owners to the Clearing Agency, and shall
have no obligations to the Owners.
Section 513. Definitive Preferred Securities Certificates.
If (a) the Depositor advises the Trustees in writing that the
Clearing Agency is no longer willing or able to properly discharge its
responsibilities with respect to the Preferred Securities Certificates, and
the Depositor is unable to locate a qualified successor, (b) the Depositor
at its option advises the Trustees in writing that it elects to terminate
the book-entry system through the Clearing Agency, or (c) after the
occurrence of a Debenture Event of Default, Owners of Preferred Securities
Certificates representing beneficial interests aggregating at least a
majority of the Liquidation Amount advise the Property Trustee in writing
that the continuation of a book-entry system through the Clearing Agency is
no longer in the best interests of the Owners of Preferred Securities
Certificates, then the Property Trustee shall notify the Clearing Agency,
and the Clearing Agency shall notify all Owners of Preferred Securities
Certificates, of the occurrence of any such event and of the availability
of the Definitive Preferred Securities Certificates to Owners of such class
or classes, as applicable, requesting the same. Upon surrender to the
Property Trustee of the typewritten Preferred Securities Certificate or
Certificates representing the Book-Entry Preferred Securities Certificates
by the Clearing Agency, accompanied by registration instructions, the
Administrative Trustees, or any one of them, shall execute the Definitive
Preferred Securities Certificates in accordance with the instructions of
the Clearing Agency. Neither the Securities Registrar nor the Trustees
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Preferred Securities
Certificates, the Trustees shall recognize the Holders of the Definitive
Preferred Securities Certificates as Securityholders. The Definitive
Preferred Securities Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as is reasonably
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acceptable to the Administrative Trustees, as evidenced by the execution
thereof by the Administrative Trustees or any one of them.
Section 514. Rights of Securityholders.
(a) The legal title to the Trust Property is vested
exclusively in the Property Trustee (in its capacity as such) in accordance
with Section 209, and the Securityholders shall not have any right or title
therein other than the undivided beneficial interest in the assets of the
Trust conferred by their Trust Securities and they shall have no right to
call for any partition or division of property, profits or rights of the
Trust except as described below. The Trust Securities shall be personal
property giving only the rights specifically set forth therein and in this
Trust Agreement. The Trust Securities shall have no preemptive or similar
rights. When issued and delivered to Holders of the Preferred Securities
against payment of the purchase price therefor, the Preferred Securities
will be fully paid and nonassessable interests in the Trust. The Holders of
the Preferred Securities, in their capacities as such, shall be entitled to
the same limitation of personal liability extended to stockholders of
private corporations for profit organized under the General Corporation Law
of the State of Delaware.
(b) For so long as any Preferred Securities remain
Outstanding, if, upon a Debenture Event of Default, the Debenture Trustee
fails or the holders of not less than 25% in principal amount of the
outstanding Debentures fail to declare the principal of all of the
Debentures to be immediately due and payable, the Holders of at least 25%
in Liquidation Amount of the Preferred Securities then Outstanding shall
have such right by a notice in writing to the Depositor and the Debenture
Trustee; and upon any such declaration such principal amount of and the
accrued interest on all of the Debentures shall become immediately due and
payable, provided that the payment of principal and interest on such
Debentures shall remain subordinated to the extent provided in the
Indenture.
(c) For so long as any Preferred Securities remain
Outstanding, if, upon a Debenture Event of Default, the Debenture Trustee
fails to exercise directly any remedy available to the Holders of the
Debentures for 60 days, the Holders of at least 25% in Liquidation Amount
of the Preferred Securities then Outstanding shall, to the fullest extent
permitted by law, have the right to directly institute proceedings for
enforcement of payment to such Holders of principal of or interest on the
Debentures having a principal amount equal to the Liquidation Amount of the
Preferred Securities of such Holders.
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ARTICLE VI
Acts of Securityholders; Meetings; Voting
Section 601. Limitations on Voting Rights.
(a) Except as provided in this Section, in Sections 514, 810
and 1002 and in the Indenture and as otherwise required by law, no Holder
of Preferred Securities shall have any right to vote or in any manner
otherwise control the administration, operation and management of the Trust
or the obligations of the parties hereto, nor shall anything herein set
forth, or contained in the terms of the Trust Securities Certificates, be
construed so as to constitute the Securityholders from time to time as
partners or members of an association.
(b) So long as any Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Debenture
Trustee, or executing any trust or power conferred on the Debenture Trustee
with respect to such Debentures, (ii) waive any past default which is
waivable under Article Six of the Indenture, (iii) exercise any right to
rescind or annul a declaration that the principal of all the Debentures
shall be due and payable or (iv) consent to any amendment, modification or
termination of the Indenture or the Debentures, where such consent shall be
required, without, in each case, obtaining the prior approval of the
Holders of at least a majority in Liquidation Amount of all Outstanding
Preferred Securities; provided, however, that where a consent under the
Indenture would require the consent of each Holder of Outstanding
Debentures affected thereby, no such consent shall be given by the Property
Trustee without the prior written consent of each holder of Preferred
Securities. The Trustees shall not revoke any action previously authorized
or approved by a vote of the Holders of the Outstanding Preferred
Securities, except by a subsequent vote of the Holders of the Outstanding
Preferred Securities. The Property Trustee shall notify each Holder of the
Outstanding Preferred Securities of any notice of default received from the
Debenture Trustee with respect to the Debentures. In addition to obtaining
the foregoing approvals of the Holders of the Preferred Securities, prior
to taking any of the foregoing actions, the Trustees shall, at the expense
of the Depositor, obtain an Opinion of Counsel experienced in such matters
to the effect that the Trust will continue to be classified as a grantor
trust and not as an association taxable as a corporation for United States
federal income tax purposes on account of such action.
(c) If any proposed amendment to the Trust Agreement provides
for, or the Trustees otherwise propose to effect, (i) any action that would
adversely affect in any material respect the powers, preferences or special
rights of the Preferred Securities, whether by way of amendment to the
Trust Agreement or otherwise, or (ii) the dissolution, winding-up or
termination of the Trust, other than pursuant to the terms of this Trust
Agreement, then the Holders of Outstanding Preferred Securities as a class
will be entitled to vote on such amendment or proposal and such amendment
or proposal shall not be effective except with the approval of the Holders
of at least a majority in Liquidation Amount of the Outstanding Preferred
Securities. No amendment to this Trust Agreement may be made if,
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as a result of such amendment, the Trust would cease to be classified as a
grantor trust or would be classified as an association taxable as a
corporation for United States federal income tax purposes.
Section 602. Notice of Meetings.
Notice of all meetings of the Preferred Securityholders, stating
the time, place and purpose of the meeting, shall be given by the Property
Trustee pursuant to Section 1008 to each Preferred Securityholder of
record, at his registered address, at least 15 days and not more than 90
days before the meeting. At any such meeting, any business properly before
the meeting may be so considered whether or not stated in the notice of the
meeting. Any adjourned meeting may be held as adjourned without further
notice.
Section 603. Meetings of Preferred Securityholders.
No annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of Securityholders
to vote on any matter upon the written request of the Preferred
Securityholders of 25% of the Preferred Securities (based upon their
aggregate Liquidation Amount) and the Administrative Trustees or the
Property Trustee may, at any time in their discretion, call a meeting of
Preferred Securityholders to vote on any matters as to which the Preferred
Securityholders are entitled to vote.
Preferred Securityholders of record of 50% of the Outstanding
Preferred Securities (based upon their aggregate Liquidation Amount),
present in person or by proxy, shall constitute a quorum at any meeting of
Securityholders.
If a quorum is present at a meeting, an affirmative vote by the
Preferred Securityholders of record present, in person or by proxy, holding
more than a majority of the Preferred Securities (based upon their
aggregate Liquidation Amount) held by the Preferred Securityholders of
record present, either in person or by proxy, at such meeting shall
constitute the action of the Securityholders, unless this Trust Agreement
requires a greater number of affirmative votes.
Section 604. Voting Rights.
Securityholders shall be entitled to one vote for each $25 of
Liquidation Amount represented by their Trust Securities in respect of any
matter as to which such Securityholders are entitled to vote.
Section 605. Proxies, etc.
At any meeting of Securityholders, any Securityholder entitled to
vote thereat may vote by proxy, provided that no proxy shall be voted at
any meeting unless it shall have been placed on file with the
Administrative Trustees, or with such other officer or agent of the
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Trust as the Administrative Trustees may direct, for verification prior to
the time at which such vote shall be taken. When Trust Securities are held
jointly by several persons, any one of them may vote at any meeting in
person or by proxy in respect of such Trust Securities, but if more than
one of them shall be present at such meeting in person or by proxy, and
such joint owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust Securities.
A proxy purporting to be executed by or on behalf of a Securityholder shall
be deemed valid unless challenged at or prior to its exercise, and, the
burden of proving invalidity shall rest on the challenger. No proxy shall
be valid more than three years after its date of execution.
Section 606. Securityholder Action by Written Consent.
Any action which may be taken by Securityholders at a meeting may
be taken without a meeting if Securityholders holding more than a majority
of all Outstanding Trust Securities (based upon their aggregate Liquidation
Amount) entitled to vote in respect of such action (or such larger
proportion thereof as shall be required by any express provision of this
Trust Agreement) shall consent to the action in writing (based upon their
aggregate Liquidation Amount).
Section 607. Record Date for Voting and Other Purposes.
For the purposes of determining the Securityholders who are
entitled to notice of and to vote at any meeting or by written consent, or
to participate in any Distribution on the Trust Securities in respect of
which a record date is not otherwise provided for in this Trust Agreement,
or for the purpose of any other action, the Administrative Trustees may
from time to time fix a date, not more than 90 days prior to the date of
any meeting of Securityholders or the payment of Distribution or other
action, as the case may be, as a record date for the determination of the
identity of the Securityholders of record for such purposes.
Section 608. Acts of Securityholders.
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Trust Agreement to be
given, made or taken by Securityholders or Owners may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed
by such Securityholders or Owners in person or by an agent duly appointed
in writing; and, except as otherwise expressly provided herein, such action
shall become effective when such instrument or instruments are delivered to
an Administrative Trustee. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Securityholders or Owners signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Trust
Agreement and (subject to Section 801) conclusive in favor of the Trustees,
if made in the manner provided in this Section.
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The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall
also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which any
Trustee receiving the same deems sufficient.
The ownership of Preferred Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Securityholder of any Trust Security shall bind
every future Securityholder of the same Trust Security and the
Securityholder of every Trust Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustees or the Trust
in reliance thereon, whether or not notation of such action is made upon
such Trust Security.
Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any particular Trust
Security may do so with regard to all or any part of the Liquidation Amount
of such Trust Security or by one or more duly appointed agents each of
which may do so pursuant to such appointment with regard to all or any part
of such liquidation amount.
A Securityholder may institute a legal proceeding directly against
the Depositor under the Guarantee to enforce its rights under the Guarantee
without first instituting a legal proceeding against the Guarantee Trustee
(as defined in the Guarantee), the Trust or any Person.
Section 609. Inspection of Records.
Upon reasonable notice to the Administrative Trustees and the
Property Trustee, the records of the Trust shall be open to inspection by
Securityholders during normal business hours for any purpose reasonably
related to such Securityholder's interest as a Securityholder.
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ARTICLE VII
Representations and Warranties
Section 701. Representations and Warranties of the Bank and the
Property Trustee.
The Bank and the Property Trustee, each severally on behalf of and
as to itself, as of the date hereof, and each Successor Property Trustee at
the time of the Successor Property Trustee's acceptance of its appointment
as Property Trustee hereunder (the term "Bank" being used to refer to such
Successor Property Trustee in its separate corporate capacity) hereby
represents and warrants (as applicable) for the benefit of the Depositor
and the Securityholders that:
(a) the Bank is a New York banking corporation duly
organized, validly existing and in good standing under the laws of the
State of New York;
(b) the Bank has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust
Agreement and has taken all necessary action to authorize the execution,
delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed
and delivered by the Property Trustee and constitutes the valid and legally
binding agreement of the Property Trustee enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
(d) the execution, delivery and performance by the Property
Trustee of this Trust Agreement has been duly authorized by all necessary
corporate or other action on the part of the Property Trustee and does not
require any approval of stockholders of the Bank and such execution,
delivery and performance will not (i) violate the Bank's charter or
by-laws, (ii) violate any provision of, or constitute, with or without
notice or lapse of time, a default under, or result in the creation or
imposition of, any Lien on any properties included in the Trust Property
pursuant to the provisions of, any indenture, mortgage, credit agreement,
license or other agreement or instrument to which the Property Trustee or
the Bank is a party or by which it is bound, or (iii) violate any law,
governmental rule or regulation of the United States or the State of New
York , as the case may be, governing the banking or trust powers of the
Bank or the Property Trustee (as appropriate in context) or any order,
judgment or decree applicable to the Property Trustee or the Bank;
(e) neither the authorization, execution or delivery by the
Property Trustee of this Trust Agreement nor the consummation of any of the
transactions by the Property Trustee contemplated herein or therein
requires the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect to any
governmental authority or agency under any existing federal law governing
the banking or
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trust powers of the Bank or the Property Trustee, as the case may be, under
the laws of the United States or the State of New York; and
(f) there are no proceedings pending or, to the best of the
Property Trustee's knowledge, threatened against or affecting the Bank or
the Property Trustee in any court or before any governmental authority,
agency or arbitration board or tribunal which, individually or in the
aggregate, would materially and adversely affect the Trust or would
question the right, power and authority of the Property Trustee to enter
into or perform its obligations as one of the Trustees under this Trust
Agreement.
Section 702. Representations and Warranties of the Delaware Bank
and the Delaware Trustee.
The Delaware Bank and the Delaware Trustee, each severally on
behalf of and as to itself, as of the date hereof, and each Successor
Delaware Trustee at the time of the Successor Delaware Trustee's acceptance
of appointment as Delaware Trustee hereunder (the term "Delaware Bank"
being used to refer to such Successor Delaware Trustee in its separate
corporate capacity), hereby represents and warrants (as applicable) for the
benefit of the Depositor and the Securityholders that:
(a) the Delaware Bank is a Delaware banking corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware;
(b) the Delaware Bank has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this
Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed
and delivered by the Delaware Trustee and constitutes the valid and legally
binding agreement of the Delaware Trustee enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
(d) the execution, delivery and performance by the Delaware
Trustee of this Trust Agreement has been duly authorized by all necessary
corporate or other action on the part of the Delaware Trustee and does not
require any approval of stockholders of the Delaware Bank and such
execution, delivery and performance will not (i) violate the Delaware
Bank's charter or by-laws, (ii) violate any provision of, or constitute,
with or without notice or lapse of time, a default under, or result in the
creation or imposition of, any Lien on any properties included in the Trust
Property pursuant to the provisions of, any indenture, mortgage, credit
agreement, license or other agreement or instrument to which the Delaware
Bank or the Delaware Trustee is a party or by which it is bound, or (iii)
violate any law, governmental rule or regulation of the United States or
the State of Delaware, as
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the case may be, governing the banking or trust powers of the Delaware Bank
or the Delaware Trustee (as appropriate in context) or any order, judgment
or decree applicable to the Delaware Bank or the Delaware Trustee;
(e) neither the authorization, execution or delivery by the
Delaware Trustee of this Trust Agreement nor the consummation of any of the
transactions by the Delaware Trustee contemplated herein or therein
requires the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect to any
governmental authority or agency under any existing federal law governing
the banking or trust powers of the Delaware Bank or the Delaware Trustee,
as the case may be, under the laws of the United States or the State of
Delaware; and
(f) there are no proceedings pending or, to the best of the
Delaware Trustee's knowledge, threatened against or affecting the Delaware
Bank or the Delaware Trustee in any court or before any governmental
authority, agency or arbitration board or tribunal which, individually or
in the aggregate, would materially and adversely affect the Trust or would
question the right, power and authority of the Delaware Trustee to enter
into or perform its obligations as one of the Trustees under this Trust
Agreement.
Section 703. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of
the Securityholders that:
(a) the Trust Securities Certificates issued on the Closing
Date on behalf of the Trust have been duly authorized and will have been,
duly and validly executed, issued and delivered by the Administrative
Trustees pursuant to the terms and provisions of, and in accordance with
the requirements of, this Trust Agreement and the Securityholders will be,
as of such date, entitled to the benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges
payable by the Trust (or the Trustees on behalf of the Trust) under the
laws of the State of Delaware or any political subdivision thereof in
connection with the execution, delivery and performance by the Bank, the
Property Trustee or the Delaware Trustee, as the case may be, of this Trust
Agreement.
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ARTICLE VIII
The Trustees
Section 801. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees shall be
as provided by this Trust Agreement and, in the case of the Property
Trustee, by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Trust Agreement shall require the Trustees to expend or
risk their own funds or otherwise incur any financial liability in the
performance of any of their duties hereunder, or in the exercise of any of
their rights or powers, if they shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of this Trust Agreement relating to the
conduct or affecting the liability of or affording protection to the
Trustees shall be subject to the provisions of this Section. To the extent
that, at law or in equity, an Administrative Trustee has duties (including
fiduciary duties) and liabilities relating thereto to the Trust or to the
Securityholders, such Administrative Trustee shall not be liable to the
Trust or to any Securityholder for such Trustee's good faith reliance on
the provisions of this Trust Agreement. The provisions of this Trust
Agreement, to the extent that they restrict the duties and liabilities of
the Administrative Trustees otherwise existing at law or in equity, are
agreed by the Depositor and the Securityholders to replace such other
duties and liabilities of the Administrative Trustees.
(b) All payments made by the Property Trustee or a Paying
Agent in respect of the Trust Securities shall be made only from the
revenue and proceeds from the Trust Property and only to the extent that
there shall be sufficient revenue or proceeds from the Trust Property to
enable the Property Trustee or a Paying Agent to make payments in
accordance with the terms hereof. Each Securityholder, by its acceptance of
a Trust Security, agrees that it will look solely to the revenue and
proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that the Trustees are not
personally liable to it for any amount distributable in respect of any
Trust Security or for any other liability in respect of any Trust Security.
This Section 801(b) does not limit the liability of the Trustees expressly
set forth elsewhere in this Trust Agreement or, in the case of the Property
Trustee, in the Trust Indenture Act.
(c) No provision of this Trust Agreement shall be construed
to relieve the Property Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct,
except that:
(i) the Property Trustee shall not be liable for any
error of judgment made in good faith by an authorized officer of the
Property Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
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(ii) the Property Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a majority in
Liquidation Amount of the Trust Securities relating to the time, method and
place of conducting any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power conferred upon the Property
Trustee under this Trust Agreement;
(iii) the Property Trustee's sole duty with respect to
the custody, safe keeping and physical preservation of the Debentures and
the Payment Account shall be to deal with such Property in a similar manner
as the Property Trustee deals with similar property for its own account,
subject to the protections and limitations on liability afforded to the
Property Trustee under this Trust Agreement and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree with
the Depositor and money held by the Property Trustee need not be segregated
from other funds held by it except in relation to the Payment Account
maintained by the Property Trustee pursuant to Section 301 and except to
the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the Depositor
with their respective duties under this Trust Agreement, nor shall the
Property Trustee be liable for the negligence, default or misconduct of the
Administrative Trustees or the Depositor.
Section 802. Certain Notices.
(a) Within 15 Business Days after the occurrence of any Event
of Default actually known to the Property Trustee, the Property Trustee
shall transmit, in the manner and to the extent provided in Section 1008,
notice of such Event of Default to the Securityholders, the Administrative
Trustees and the Depositor, unless such Event of Default shall have been
cured or waived. For purposes of this Section the term "Event of Default"
means any event that is, or after notice or lapse of time or both would
become, an Event of Default.
(b) The Administrative Trustees shall transmit, to the
Securityholders in the manner and to the extent provided in Section 1008,
notice of the Depositor's election to begin or further extend an Extension
Period on the Debentures (unless such election shall have been revoked)
within the time specified for transmitting such notice to the holders of
the Debentures pursuant to the Indenture as originally executed.
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Section 803. Certain Rights of Property Trustee.
Subject to the provisions of Section 801:
(a) the Property Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any resolution, Opinion
of Counsel, certificate, written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties.
(b) if (i) in performing its duties under this Trust
Agreement the Property Trustee is required to decide between alternative
courses of action or (ii) in construing any of the provisions of this Trust
Agreement the Property Trustee finds the same ambiguous or inconsistent
with other provisions contained herein or (iii) the Property Trustee is
unsure of the application of any provision of this Trust Agreement, then,
except as to any matter as to which the Preferred Securityholders are
entitled to vote under the terms of this Trust Agreement, the Property
Trustee shall deliver a notice to the Depositor requesting written
instructions of the Depositor as to the course of action to be taken and
the Property Trustee shall take such action, or refrain from taking such
action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor; provided, however, that if the
Property Trustee does not receive such instructions of the Depositor within
ten Business Days after it has delivered such notice, or such reasonably
shorter period of time set forth in such notice (which to the extent
practicable shall not be less than two Business Days), it may, but shall be
under no duty to, take or refrain from taking such action not inconsistent
with this Trust Agreement as it shall deem advisable and in the best
interests of the Securityholders, in which event the Property Trustee shall
have no liability except for its own bad faith, negligence or willful
misconduct;
(c) any direction or act of the Depositor or the
Administrative Trustees contemplated by this Trust Agreement shall be
sufficiently evidenced by an Officer's Certificate;
(d) whenever in the administration of this Trust Agreement,
the Property Trustee shall deem it desirable that a matter be established
before undertaking, suffering or omitting any action hereunder, the
Property Trustee (unless other evidence is herein specifically prescribed)
may, in the absence of bad faith on its part, request and conclusively rely
upon an Officer's Certificate which, upon receipt of such request, shall be
promptly delivered by the Depositor or the Administrative Trustees;
(e) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any
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filing under tax or securities laws) or any filing under tax or securities
laws) or any rerecording, refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel of its
choice (which counsel may be counsel to the Depositor or any of its
Affiliates) and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon and in
accordance with such advice, such counsel may be counsel to the Depositor
or any of its Affiliates, and may include any of its employees; the
Property Trustee shall have the right at any time to seek instructions
concerning the administration of this Trust Agreement from any court of
competent jurisdiction;
(g) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust Agreement
at the request or direction of any of the Securityholders pursuant to this
Trust Agreement, unless such Securityholders shall have offered to the
Property Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(h) the Property 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, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing to do
so by one or more Securityholders, but the Property Trustee may make such
further inquiry or investigation into such facts or matters as it may see
fit;
(i) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through its agents or attorneys, provided that the Property Trustee shall
be responsible for its own negligence or recklessness with respect to
selection of any agent or attorney appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement
the Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder the Property Trustee (i) may request instructions from the
Holders of the Trust Securities which instructions may only be given by the
Holders of the same proportion in Liquidation Amount of the Trust
Securities as would be entitled to direct the Property Trustee under the
terms of the Trust Securities in respect of such remedy, right or action,
(ii) may refrain from enforcing such remedy or right or taking such other
action until such instructions are received, and (iii) shall be protected
in acting in accordance with such instructions; and
(k) except as otherwise expressly provided by this Trust
Agreement, the Property Trustee shall not be under any obligation to take
any action that is discretionary under the provisions of this Trust
Agreement.
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No provision of this Trust Agreement shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts or exercise
any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property
Trustee shall be construed to be a duty.
Section 804. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the Trust, and the
Trustees do not assume any responsibility for their correctness. The
Trustees shall not be accountable for the use or application by the
Depositor of the proceeds of the Debentures.
Section 805. May Hold Securities.
Any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 808 and 813 and except as provided in
the definition of the term "Outstanding" in Article I, may otherwise deal
with the Trust with the same rights it would have if it were not a Trustee
or such other agent.
Section 806. Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay to the Trustees from time to time reasonable
compensation for all services rendered by them hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse
the Trustees upon request for all reasonable expenses, disbursements and
advances incurred or made by the Trustees in accordance with any provision
of this Trust Agreement (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to such Trustee's
negligence, bad faith or willful misconduct (or, in the case of the
Administrative Trustees, any such expense, disbursement or advance as may
be attributable to his or her gross negligence, bad faith or willful
misconduct); and
(c) to indemnify each of the Trustees or any predecessor Trustee
for, and to hold the Trustees harmless against, any loss, damage, claims,
liability, penalty or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of this Trust Agreement, including the costs and expenses of
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defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
No Trustee may claim any lien or charge on any Trust Property as a
result of any amount due pursuant to this Section 806.
Section 807. Corporate Property Trustee Required; Eligibility of
Trustees.
(a) There shall at all times be a Property Trustee hereunder
with respect to the Trust Securities. The Property Trustee shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such
and has a combined capital and surplus of at least $50,000,000. If any such
Person publishes reports of condition at least annually, pursuant to law or
to the requirements of its supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time the Property
Trustee with respect to the Trust Securities shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each
Administrative Trustee shall be either a natural person who is at least 21
years of age or a legal entity that shall act through one or more persons
authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall either be (i) a
natural person who is at least 21 years of age and a resident of the State
of Delaware or (ii) a legal entity with its principal place of business in
the State of Delaware and that otherwise meets the requirements of
applicable Delaware law that shall act through one or more persons
authorized to bind such entity.
Section 808. Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Property
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 Trust Agreement.
Section 809. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be continuing,
at any time or times, for the purpose of meeting the legal requirements of
the Trust Indenture Act or of any jurisdiction in which any part of the
Trust Property may at the time be located, the Depositor shall have power
to appoint, and upon the written request of the Property Trustee, the
Depositor shall for such purpose join with the Property Trustee in the
execution, delivery and
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performance of all instruments and agreements necessary or proper to
appoint, one or more Persons approved by the Property Trustee either to act
as co-trustee, jointly with the Property Trustee, of all or any part of
such Trust Property, or to the extent required by law to act as separate
trustee of any such property, in either case with such powers as may be
provided in the instrument of appointment, and to vest in such Person or
Persons in the capacity aforesaid, any property, title, right or power
deemed necessary or desirable, subject to the other provisions of this
Section. If the Depositor does not join in such appointment within 15 days
after the receipt by it of a request so to do, or in case a Debenture Event
of Default has occurred and is continuing, the Property Trustee alone shall
have power to make such appointment. Any co-trustee or separate trustee
appointed pursuant to this Section shall either be (i) a natural person who
is at least 21 years of age and a resident of the United States or (ii) a
legal entity with its principal place of business in the United States that
shall act through one or more persons authorized to bind such entity.
Should any written instrument from the Depositor be required by
any co-trustee or separate trustee so appointed for more fully confirming
to such co-trustee or separate trustee such property, title, right, or
power, any and all such instruments shall, on request, be executed,
acknowledged, and delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the
following terms, namely:
(a) The Trust Securities shall be executed and delivered
and all rights, powers, duties and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustees specified hereunder,
shall be exercised, solely by such Trustees and not by such co-trustee or
separate trustee.
(b) The rights, powers, duties and obligations hereby
conferred or imposed upon the Property Trustee in respect of any property
covered by such appointment shall be conferred or imposed upon and
exercised or performed by the Property Trustee or by the Property Trustee
and such co-trustee or separate trustee jointly, as shall be provided in
the instrument appointing such co-trustee or separate trustee, except to
the extent that under any law of any jurisdiction in which any particular
act is to be performed, the Property Trustee shall be incompetent or
unqualified to perform such act, in which event such rights, powers, duties
and obligations shall be exercised and performed by such co-trustee or
separate trustee.
(c) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the Depositor, may
accept the resignation of or remove any co-trustee or separate trustee
appointed under this Section, and, in case a Debenture Event of Default has
occurred and is continuing, the Property Trustee shall have power to accept
the resignation of, or remove, any such co-trustee or separate trustee
without the concurrence of the Depositor. Upon the written request of the
Property Trustee, the
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Depositor shall join with the Property Trustee in the execution, delivery
and performance of all instruments and agreements necessary or proper to
effectuate such resignation or removal. A successor to any co-trustee or
separate trustee so resigned or removed may be appointed in the manner
provided in this Section 809.
(d) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property Trustee
or any other trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any
act of a co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee
shall be deemed to have been delivered to each such co-trustee and separate
trustee.
Section 810. Resignation and Removal; Appointment of Successor.
No resignation or removal of any Trustee (the "Relevant Trustee")
and no appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of Section 811.
Subject to the immediately preceding paragraph, the Relevant
Trustee may resign at any time with respect to the Trust Securities by
giving written notice thereof to the Securityholders. If the instrument of
acceptance by the successor Trustee required by Section 811 shall not have
been delivered to the Relevant Trustee within 30 days after the giving of
such notice of resignation, the Relevant Trustee may petition, at the
expense of the Company, any court of competent jurisdiction for the
appointment of a successor Relevant Trustee with respect to the Trust
Securities.
Unless a Debenture Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Common
Securityholder. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them,
may be removed at such time by Act of the Holders of a majority in
Liquidation Amount of the Preferred Securities, delivered to the Relevant
Trustee (in its individual capacity and on behalf of the Trust). An
Administrative Trustee may be removed by the Common Securityholder at any
time.
If any Trustee shall resign, be removed or become incapable of
acting as Trustee, or if a vacancy shall occur in the office of any Trustee
for any cause, at a time when no Debenture Event of Default shall have
occurred and be continuing, the Common Securityholder, by Act of the Common
Securityholder delivered to the retiring Trustee, shall promptly appoint a
successor Trustee or Trustees with respect to the Trust Securities and the
Trust, and the successor Trustee shall comply with the applicable
requirements of Section 811. If the Property Trustee or the Delaware
Trustee shall resign, be removed or become
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incapable of continuing to act as the Property Trustee or the Delaware
Trustee, as the case may be, at a time when a Debenture Event of Default
shall have occurred and is continuing, the Preferred Securityholders, by
Act of the Securityholders of a majority in Liquidation Amount of the
Preferred Securities then Outstanding delivered to the retiring Relevant
Trustee, shall promptly appoint a successor Relevant Trustee or Trustees
with respect to the Trust Securities and the Trust, and such successor
Trustee shall comply with the applicable requirements of Section 811. If an
Administrative Trustee shall resign, be removed or become incapable of
acting as Administrative Trustee, at a time when a Debenture Event of
Default shall have occurred and be continuing, the Common Securityholder,
by Act of the Common Securityholder delivered to an Administrative Trustee,
shall promptly appoint a successor Administrative Trustee or Administrative
Trustees with respect to the Trust Securities and the Trust, and such
successor Administrative Trustee or Administrative Trustees shall comply
with the applicable requirements of Section 811. If no successor Relevant
Trustee with respect to the Trust Securities shall have been so appointed
by the Common Securityholder or the Preferred Securityholders and accepted
appointment in the manner required by Section 811, any Securityholder who
has been a Securityholder of Trust Securities for at least six months may,
on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Relevant
Trustee with respect to the Trust Securities.
The Property Trustee shall give notice of each resignation and
each removal of a Trustee and each appointment of a successor Trustee to
all Securityholders in the manner provided in Section 1008 and shall give
notice to the Depositor. Each notice shall include the name of the
successor Relevant Trustee and the address of its Corporate Trust Office if
it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee
who is a natural person dies or becomes, in the opinion of the Depositor,
incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by (a) the unanimous act of
remaining Administrative Trustees if there are at least two of them or (b)
otherwise by the Depositor (with the successor in each case being a Person
who satisfies the eligibility requirement for Administrative Trustees set
forth in Section 807).
Section 811. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Relevant
Trustee with respect to the Trust Securities and the Trust, the retiring
Relevant Trustee and each successor Relevant Trustee with respect to the
Trust Securities shall execute and deliver an amendment hereto wherein each
successor Relevant Trustee shall accept such appointment and which (a)
shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Relevant Trustee
all the rights, powers, trusts and duties of the retiring Relevant Trustee
with respect to the Trust Securities and the Trust and (b) shall add to or
change any of the provisions of this Trust Agreement as shall be necessary
to provide
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for or facilitate the administration of the trusts hereunder by more than
one Relevant Trustee, it being understood that nothing herein or in such
amendment shall constitute such Relevant Trustees co-trustees of the same
trust and that each such Relevant Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Relevant Trustee and upon the execution and
delivery of such amendment the resignation or removal of the retiring
Relevant Trustee shall become effective to the extent provided therein and
each such successor Relevant Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Relevant Trustee with respect to the Trust
Securities and the Trust; but, on request of the Trust or any successor
Relevant Trustee such retiring Relevant Trustee shall duly assign, transfer
and deliver to such successor Relevant Trustee all Trust Property, all
proceeds thereof and money held by such retiring Relevant Trustee hereunder
with respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust
shall execute any and all instruments for more fully and certainly vesting
in and confirming to such successor Relevant Trustee all such rights,
powers and trusts referred to in the immediately preceding paragraph, as
the case may be.
No successor Relevant Trustee shall accept its appointment unless
at the time of such acceptance such successor Relevant Trustee shall be
qualified and eligible under this Article.
Section 812. Merger, Conversion, Consolidation or Succession to
Business.
Any Person into which the Property Trustee, the Delaware Trustee
or any Administrative Trustee may be merged or converted or with which it
may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which such Relevant Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust
business of such Relevant Trustee, shall be the successor of such Relevant
Trustee hereunder, provided such Person shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper
or any further act on the part of any of the parties hereto.
Section 813. Preferential Collection of Claims Against Depositor
or Trust.
If and when the Property Trustee or the Delaware Trustee shall be
or become a creditor of the Depositor or the Trust (or any other obligor
upon the Debentures or the Trust Securities), the Property Trustee or the
Delaware Trustee, as the case may be, shall be subject to and shall take
all actions necessary in order to comply with the provisions of the Trust
Indenture Act regarding the collection of claims against the Depositor or
Trust (or any such other obligor).
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Section 814. Reports by Property Trustee.
(a) Not later than July 15 of each year commencing with
July 15, 1997 the Property Trustee shall transmit to all Securityholders in
accordance with Section 1008, and to the Depositor, a brief report dated as
of such December 31 with respect to:
(i) its eligibility under Section 807 or, in
lieu thereof, if to the best of its knowledge it has continued to
be eligible under said Section, a written statement to such
effect; and
(ii) any change in the property and funds in its
possession as Property Trustee since the date of its last report
and any action taken by the Property Trustee in the performance of
its duties hereunder which it has not previously reported and
which in its opinion materially affects the Trust Securities.
(b) In addition the Property Trustee shall transmit to
Securityholders such reports concerning the Property Trustee and its
actions under this Trust Agreement as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with each
national securities exchange or other organization upon which the Trust
Securities are listed, with the Commission and with the Depositor.
Section 815. Reports to the Property Trustee.
The Depositor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such documents, reports and
information as required by Section 314 of the Trust Indenture Act (if any)
and the compliance certificate required by Section 314(a) of the Trust
Indenture Act in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act.
Section 816. Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrative Trustees on behalf of
the Trust shall provide to the Property Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Trust Agreement
that relate to any of the matters set forth in Section 314 (c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an
officer pursuant to Section 314(c)(1) of the Trust Indenture Act shall be
given in the form of an Officers' Certificate.
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Section 817. Number of Trustees.
(a) The number of Trustees shall be four, provided that
the Holder of all of the Common Securities by written instrument may
increase or decrease the number of Administrative Trustees. The Property
Trustee and the Delaware Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and
the number of Administrative Trustees is not reduced pursuant to Section
817(a), or if the number of Trustees is increased pursuant to Section
817(a), a vacancy shall occur. The vacancy shall be filled with a Trustee
appointed in accordance with Section 810.
(c) The death, resignation, retirement, removal,
bankruptcy, incompetence or incapacity to perform the duties of a Trustee
shall not operate to annul the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 810,
the Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all the
duties imposed upon the Administrative Trustees by this Trust Agreement.
Section 818. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person over
the age of 21 his or her power for the purpose of executing any documents
contemplated in Section 207(a); and
(b) The Administrative Trustees shall have power to
delegate from time to time to such of their number or to the Depositor the
doing of such things and the execution of such instruments either in the
name of the Trust or the names of the Administrative Trustees or otherwise
as the Administrative Trustees may deem expedient, to the extent such
delegation is not prohibited by applicable law or contrary to the
provisions of the Trust, as set forth herein.
Section 819. Voting.
Except as otherwise provided in this Trust Agreement, the consent
or approval of the Administrative Trustees shall require consent or
approval by not less than a majority of the Administrative Trustees.
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ARTICLE IX
Termination, Liquidation and Merger
Section 901. Termination Upon Expiration Date.
Unless earlier terminated, the Trust shall automatically terminate
on May __, 2041 (the "Expiration Date") subject to distribution of the
Trust Property in accordance with Section 904.
Section 902. Early Termination.
The first to occur of any of the following events is an "Early
Termination Event":
(a) the occurrence of a Bankruptcy Event in respect of,
or the dissolution or liquidation of, the Depositor;
(b) delivery of written direction to the Property
Trustee by the Depositor at any time (which direction is wholly optional
and within the discretion of the Depositor) to terminate the Trust and
distribute the Debentures to Securityholders in exchange for the Preferred
Securities in accordance with Section 904;
(c) the redemption of all of the Preferred Securities in
connection with the redemption of all of the Debentures; and
(d) an order for dissolution of the Trust shall have
been entered by a court of competent jurisdiction.
Section 903. Termination.
The respective obligations and responsibilities of the Trustees
and the Trust created and continued hereby shall terminate upon the latest
to occur of the following: (a) the distribution by the Property Trustee to
Securityholders upon the liquidation of the Trust pursuant to Section 904,
or upon the redemption of all of the Trust Securities pursuant to Section
402, of all amounts required to be distributed hereunder upon the final
payment of the Trust Securities; (b) the payment of any expenses owed by
the Trust; and (c) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
Section 904. Liquidation.
(a) If an Early Termination Event specified in clause
(a), (b), or (d) of Section 902 occurs or upon the Expiration Date, the
Trust shall be liquidated by the Trustees as expeditiously as the Trustees
determine to be possible by distributing, after satisfaction of
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liabilities to creditors of the Trust as provided by applicable law, to
each Securityholder a Like Amount of Debentures, subject to Section 904(d).
Notice of liquidation shall be given by the Property Trustee by first-class
mail, postage prepaid, mailed not later than 30 nor more than 60 days prior
to the Liquidation Date to each Holder of Trust Securities at such Holder's
address appearing in the Securities Register. All notices of liquidation
shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation
Date, the Trust Securities will no longer be deemed to be Outstanding and
any Trust Securities Certificates not surrendered for exchange will be
deemed to represent a Like Amount of Debentures; and
(iii) provide such information with respect to the
mechanics by which Holders may exchange Trust Securities certificates for
Debentures, or if Section 904(d) applies receive a Liquidation
Distribution, as the Administrative Trustees or the Property Trustee shall
deem appropriate.
(b) Except where Section 902(c) or 904(d) applies, in
order to effect the liquidation of the Trust and distribution of the
Debentures to Securityholders, the Property Trustee shall establish a
record date for such distribution (which shall be not more than 45 days
prior to the Liquidation Date) and, either itself acting as exchange agent
or through the appointment of a separate exchange agent, shall establish
such procedures as it shall deem appropriate to effect the distribution of
Debentures in exchange for the Outstanding Trust Securities Certificates.
(c) Except where Section 902(c) or 904(d) applies, after
the Liquidation Date, (i) the Trust Securities will no longer be deemed to
be Outstanding, (ii) certificates (or, at the election of the Depositor a
Global Debenture, subject to the provisions of the Indenture) representing
a Like Amount of Debentures will be issued to holders of Trust Securities
Certificates upon surrender of such certificates to the Administrative
Trustees or their agent for exchange, (iii) the Depositor shall use its
reasonable efforts to have the Debentures listed on the New York Stock
Exchange or on such other securities exchange or other organization as the
Preferred Securities are then listed or traded, (iv) any Trust Securities
Certificates not so surrendered for exchange will be deemed to represent a
Like Amount of Debentures, accruing interest at the rate provided for in
the Debentures from the last Distribution Date on which a Distribution was
made on such Trust Securities Certificates until such certificates are so
surrendered (and until such certificates are so surrendered, no payments of
interest or principal will be made to holders of Trust Securities
Certificates with respect to such Debentures) and (v) all rights of
Securityholders holding Trust Securities will cease, except the right of
such Securityholders to receive Debentures upon surrender of Trust
Securities Certificates.
(d) In the event that, notwithstanding the other
provisions of this Section 904, whether because of an order for dissolution
entered by a court of competent jurisdiction
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or otherwise, distribution of the Debentures in the manner provided herein
is determined by the Property Trustee not to be practical, the Trust
Property shall be liquidated, and the Trust shall be dissolved, wound-up or
terminated, by the Property Trustee in such manner as the Property Trustee
determines. In such event, on the date of the dissolution, winding-up or
other termination of the Trust, Securityholders will be entitled to receive
out of the assets of the Trust available for distribution to
Securityholders, after satisfaction of liabilities to creditors of the
Trust as provided by applicable law, an amount equal to the Liquidation
Amount per Trust Security plus accumulated and unpaid Distributions thereon
to the date of payment (such amount being the "Liquidation Distribution").
If, upon any such dissolution, winding-up or termination, the Liquidation
Distribution can be paid only in part because the Trust has insufficient
assets available to pay in full the aggregate Liquidation Distribution,
then, subject to the next succeeding sentence, the amounts payable by the
Trust on the Trust Securities shall be paid on a pro rata basis (based upon
Liquidation Amounts). The holder of the Common Securities will be entitled
to receive Liquidation Distributions upon any such dissolution, winding-up
or termination pro rata (determined as aforesaid) with Holders of Preferred
Securities, except that, if a Debenture Event of Default has occurred and
is continuing, the Preferred Securities shall have a priority over the
Common Securities.
Section 905. Mergers, Consolidations, Amalgamations or
Replacements of the Trust.
The Trust may not merge with or into, consolidate, amalgamate, or
be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other Person, except
pursuant to this Section 905. At the request of the Depositor, with the
consent of the Administrative Trustees and without the consent of the
holders of the Preferred Securities, the Trust may merge with or into,
consolidate, amalgamate, be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to a trust organized as
such under the laws of any state; provided, that (i) such successor entity
either (a) expressly assumes all of the obligations of the Trust with
respect to the Preferred Securities or (b) substitutes for the Preferred
Securities other securities having substantially the same terms as the
Preferred Securities (the "Successor Securities) so long as the Successor
Securities rank the same as the Preferred Securities rank in priority with
respect to distributions and payments upon liquidation, redemption and
otherwise, (ii) the Depositor expressly appoints a trustee of such
successor entity possessing substantially the same powers and duties as the
Property Trustee as the holder of the Debentures, (iii) the Successor
Securities are listed or traded, or any Successor Securities will be listed
or traded upon notification of issuance, on any national securities
exchange or other organization on which the Preferred Securities are then
listed, if any, (iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Preferred Securities
(including any Successor Securities) to be downgraded by any nationally
recognized statistical rating organization, (v) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the holders of the
Preferred Securities (including any Successor Securities) in any material
respect, (vi) such successor entity has a purpose substantially identical
to that of the Trust, (vii) prior to such merger, consolidation,
amalgamation, replacement,
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conveyance, transfer or lease, the Depositor has received an Opinion of
Counsel to the effect that (a) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the
rights, preferences and privileges of the holders of the Preferred
Securities (including any Successor Securities) in any material respect,
and (b) following such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, neither the Trust nor such successor entity
will be required to register as an investment Company under the 1940 Act
and (viii) the Depositor owns all of the Common Securities of such
successor entity and guarantees the obligations of such successor entity
under the Successor Securities at least to the extent provided by the
Guarantee. Notwithstanding the foregoing, the Trust shall not, except with
the consent of holders of 100% in Liquidation Amount of the Preferred
Securities, consolidate, amalgamate, merge with or into, or be replaced by
or convey, transfer or lease its properties and assets substantially as an
entirety to any other Person or permit any other Person to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger or replacement would cause the Trust or the successor
entity to be classified as other than a grantor trust for United States
federal income tax purposes.
ARTICLE X
Miscellaneous Provisions
Section 1001. Limitation of Rights of Securityholders.
The death or incapacity of any Person having an interest,
beneficial or otherwise, in Trust Securities shall not operate to terminate
this Trust Agreement, nor entitle the legal representatives or heirs of
such Person or any Securityholder for such Person, to claim an accounting,
take any action or bring any proceeding in any court for a partition or
winding-up of the arrangements contemplated hereby, nor otherwise affect
the rights, obligations and liabilities of the parties hereto or any of
them.
Section 1002. Amendment.
(a) This Trust Agreement may be amended from time to time
by the Trustees and the Depositor, without the consent of any
Securityholders, (i) as provided in Section 811 with respect to acceptance
of appointment by a successor Trustee, (ii) to cure any ambiguity, correct
or supplement any provision herein or therein which may be inconsistent
with any other provision herein or therein, or to make any other provisions
with respect to matters or questions arising under this Trust Agreement,
that shall not be inconsistent with the other provisions of this Trust
Agreement, or (iii) to modify, eliminate or add to any provisions of this
Trust Agreement to such extent as shall be necessary to ensure that the
Trust will be classified for United States federal income tax purposes as a
grantor trust at all times that any Trust Securities are outstanding or to
ensure that the Trust will not be required to register as an "investment
Company" under the 1940 Act; provided, however, that in the case of clause
(ii), such action shall not adversely affect in any material
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respect the interests of any Securityholder, and any amendments of this
Trust Agreement shall become effective when notice thereof is given to the
Securityholders.
(b) Except as provided in Section 601(c) or Section
1002(c) hereof, any provision of this Trust Agreement may be amended by the
Trustees and the Depositor (i) with the consent of Trust Securityholders
representing not less than a majority (based upon Liquidation Amounts) of
the Trust Securities then Outstanding and (ii) upon receipt by the Trustees
of an Opinion of Counsel to the effect that such amendment or the exercise
of any power granted to the Trustees in accordance with such amendment will
not affect the Trust's status as a grantor trust for United States federal
income tax purposes or the Trust's exemption from status of an "investment
Company" under the 1940 Act.
(c) In addition to and notwithstanding any other
provision in this Trust Agreement, without the consent of each affected
Securityholder (such consent being obtained in accordance with Section 603
or 606 hereof), this Trust Agreement may not be amended to (i) change the
amount or timing of any Distribution on the Trust Securities or otherwise
adversely affect the amount of any Distribution required to be made in
respect of the Trust Securities as of a specified date or (ii) restrict the
right of a Securityholder to institute suit for the enforcement of any such
payment on or after such date; notwithstanding any other provision herein,
without the unanimous consent of the Securityholders (such consent being
obtained in accordance with Section 603 or 606 hereof), this paragraph (c)
of this Section 1002 may not be amended.
(d) Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any amendment to this
Trust Agreement which would cause the Trust to fail or cease to qualify for
the exemption from status of an "investment Company" under the 1940 Act or
to fail or cease to be classified as a grantor trust for United States
federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to
the contrary, without the consent of the Depositor, this Trust Agreement
may not be amended in a manner which imposes any additional obligation on
the Depositor.
(f) In the event that any amendment to this Trust
Agreement is made, the Administrative Trustees shall promptly provide to
the Depositor a copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee
shall be required to enter into any amendment to this Trust Agreement which
affects its own rights, duties or immunities under this Trust Agreement.
The Property Trustee shall be entitled to receive an Opinion of Counsel and
an officer's Certificate stating that any amendment to this Trust Agreement
is in compliance with this Trust Agreement.
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Section 1003. Separability.
In case any provision in this Trust Agreement or in the Trust
Securities Certificates shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 1004. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS TRUST
AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES).
Section 1005. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a
day that is not a Business Day, then such payment need not be made on such
date but may be made on the next succeeding day which is a Business Day
(except as otherwise provided in Sections 401(a) and 402(d)), with the same
force and effect as though made on the date fixed for such payment, and no
distribution shall accumulate thereon for the period after such date.
Section 1006. Successors.
This Trust Agreement shall be binding upon and shall inure to the
benefit of any successor to the Depositor, the Trust or the Relevant
Trustee, including any successor by operation of law. Except in connection
with a consolidation, merger or sale involving the Depositor that is
permitted under Article Ten of the Indenture and pursuant to which the
assignee agrees in writing to perform the Depositor's obligations
hereunder, the Depositor shall not assign its obligations hereunder.
Section 1007. Headings.
The Article and Section headings are for convenience only and
shall not affect the construction of this Trust Agreement.
Section 1008. Reports, Notices and Demands.
Any report, notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given or
served to or upon any Securityholder or the Depositor may be given or
served in writing by deposit thereof, first-class postage prepaid, in the
United States mail, hand delivery or facsimile transmission, in each case,
addressed, (a) in the case of a Preferred Securityholder, to such Preferred
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Securityholder as such Securityholder's name and address may appear on the
Securities Register; and (b) in the case of the Common Securityholder or
the Depositor, to PacifiCorp, 700 NE Multnomah, Suite 1600, Portland,
Oregon 97232, Attention: Treasurer, facsimile no.: (503) 731-2092. Any
notice to Preferred Securityholders shall also be given to such owners as
have, within two years preceding the giving of such notice, filed their
names and addresses with the Property Trustee for that purpose. Such
notice, demand or other communication to or upon a Securityholder shall be
deemed to have been sufficiently given or made, for all purposes, upon hand
delivery, mailing or transmission.
Any notice, demand or other communication which by any provision
of this Trust Agreement is required or permitted to be given or served to
or upon the Trust, the Property Trustee or the Administrative Trustees
shall be given in writing addressed (until another address is published by
the Trust) as follows: (a) with respect to the Property Trustee to The Bank
of New York, 101 Barclay Street, New York, New York 10286, Attention:
Corporate Trust Trustee Administration; (b) with respect to the Delaware
Trustee, to 23 White Clay Center, Newark, New Castle County, Delaware
19711, Attention: Corporate Trust Trustee Administration; and (c) with
respect to the Administrative Trustees, to them at the address above for
notices to the Depositor, marked "Attention: Administrative Trustees of
PacifiCorp Capital I." Such notice, demand or other communication to or
upon the Trust or the Property Trustee shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by the
Trust or the Property Trustee.
Section 1009. Agreement Not to Petition.
Each of the Trustees and the Depositor agree for the benefit of
the Securityholders that, until at least one year and one day after the
Trust has been terminated in accordance with Article IX, they shall not
file, or join in the filing of, a petition against the Trust under any
bankruptcy, insolvency, reorganization or other similar law (including,
without limitation, the United States Bankruptcy Code) (collectively,
"Bankruptcy Laws") or otherwise join in the commencement of any proceeding
against the Trust under any Bankruptcy Law. In the event the Depositor
takes action in violation of this Section 1009, the Property Trustee
agrees, for the benefit of Securityholders, that at the expense of the
Depositor (which expense shall be paid prior to the filing), it shall file
an answer with the bankruptcy court or otherwise properly contest the
filing of such petition by the Depositor against the Trust or the
commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and
precluded therefrom. The provisions of this Section 1009 shall survive the
termination of this Trust Agreement.
Section 1010. Trust Indenture Act; Conflict with Trust Indenture
Act.
(a) This Trust Agreement is subject to the provisions of
the Trust Indenture Act that are required to be part of this Trust
Agreement and shall, to the extent applicable, be governed by such
provisions.
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(b) The Property Trustee shall be the only Trustee which
is a trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or
conflicts with another provision hereof which is required to be included in
this Trust Agreement by any of the provisions of the Trust Indenture Act,
such required provision shall control. If any provision of this Trust
Agreement modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed
to apply to this Trust Agreement as so modified or to be excluded, as the
case may be.
(d) The application of the Trust Indenture Act to this
Trust Agreement shall not affect the nature of the Securities as equity
securities representing undivided beneficial interests in the assets of the
Trust.
Section 1011. Acceptance of Terms of Trust Agreement, Guarantee
and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER,
WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE
THE UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A
BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS
OF THIS TRUST AGREEMENT AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND
OTHER TERMS OF THE GUARANTEE AND THE INDENTURE, AND SHALL CONSTITUTE THE
AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS
AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND
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EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH
OTHERS.
PACIFICORP
By:
-------------------------------
Name:
Title:
THE BANK OF NEW YORK
as Property Trustee
By:
-------------------------------
Name:
Title:
THE BANK OF NEW YORK (DELAWARE)
as Delaware Trustee
By:
-------------------------------
Name:
Title:
-------------------------------
as Administrative Trustee
-------------------------------
as Administrative Trustee
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EXHIBIT A
CERTIFICATE OF TRUST
OF
PACIFICORP CAPITAL I
THIS CERTIFICATE OF TRUST of PacifiCorp Capital I (the "Trust"),
dated May __, 1996, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act
(12 Del. C. ss. 3801 et seq.).
1. Name. The name of the business trust being formed hereby is
PacifiCorp Capital I.
2. Delaware Trustee. The name and business address of the trustee
of the Trust with a principal place of business in the State of Delaware
are The Bank of New York (Delaware), 23 White Clay Center, Newark, New
Castle County, Delaware 19711.
3. Counterparts. This Certificate of Trust may be executed in one
or more counterparts, all of which together constitute one and the same
instrument.
4. Effective Date. This Certificate of Trust shall be effective as
of its filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
THE BANK OF NEW YORK,
as Trustee
- ---------------------------------- By:
William E. Peressini, as Trustee -------------------------------
Name:
Title:
A-1
<PAGE>
THE BANK OF NEW YORK (DELAWARE)
as Trustee
By:
-------------------------------
Name:
Title:
A-2
<PAGE>
EXHIBIT B
__________ ____, 1996
The Depository Trust Company,
55 Water Street, 49th Floor,
New York, New York 10041-0099.
Attention: ________________________
General Counsel's Office
Re: PacifiCorp Capital I Cumulative
Quarterly Income Preferred Securities, Series A
Ladies and Gentlemen:
The purpose of this letter is to set forth certain matters
relating to the issuance and deposit with The Depository Trust Company
("DEPOSITORY TRUST COMPANY") of PacifiCorp Capital I _______% Cumulative
Quarterly Income Preferred Securities, Series A (the "Preferred
Securities"), of PacifiCorp Capital I, a Delaware business trust (the
"Issuer"),created pursuant to a Trust Agreement between PacifiCorp, an
Oregon corporation ("PacifiCorp"), The Bank of New York, as Property
Trustee, The Bank of New York (Delaware), as Delaware Trustee and the
Administrative Trustees named therein. The payment of distributions on the
Preferred Securities and payments due upon liquidation of Issuer or
redemption of the Preferred Securities, to the extent the Issuer has funds
available for the payment thereof, are guaranteed by PacifiCorp to the
extent set forth in a Guarantee Agreement dated May __, 1996 by PacifiCorp
with respect to the Preferred Securities. PacifiCorp and the Issuer propose
to sell the Preferred Securities to certain Underwriters (the
"Underwriters") pursuant to an Underwriting Agreement dated May __, 1996 by
and among the Underwriters, the Issuer and PacifiCorp, and the Underwriters
wish to take delivery of the Preferred Securities through DEPOSITORY TRUST
COMPANY. The Bank of New York acting as transfer agent and registrar with
respect to the Preferred Securities (the "Transfer Agent and Registrar").
To induce DEPOSITORY TRUST COMPANY to accept the Preferred
Securities as eligible for deposit at DEPOSITORY TRUST COMPANY, and to act
in accordance with DEPOSITORY TRUST COMPANY's rules with respect to the
Preferred Securities, the
B-1
<PAGE>
Issuer, the Transfer Agent and Registrar and DEPOSITORY TRUST COMPANY agree
among each other as follows:
1. Prior to the closing of the sale of the Preferred Securities to
the Underwriters, which is expected to occur on or about May __, 1996,
there shall be deposited with DEPOSITORY TRUST COMPANY one or more global
certificates (individually and collectively, the "Global Certificate")
registered in the name of DEPOSITORY TRUST COMPANY's Preferred Securities
nominee, Cede & Co., representing an aggregate of ________________
Preferred Securities and bearing the following legend:
Unless this certificate is presented by an
authorized representative of The Depository Trust
Company, a New York corporation ("DEPOSITORY TRUST
COMPANY"), to Issuer or its agent for registration
of transfer, exchange, or payment, and any
certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by
an authorized representative of DEPOSITORY TRUST
COMPANY (and any payment is made to Cede & Co. or
to such other entity as is requested by an
authorized representative of DEPOSITORY TRUST
COMPANY), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof,
Cede & Co., has an interest herein.
2. The Amended and Restated Trust Agreement of the Issuer provides
for the voting by holders of the Preferred Securities under certain limited
circumstances. The Issuer shall establish a record date for such purposes
and shall, to the extent possible, give DEPOSITORY TRUST COMPANY notice of
such record date not less than 15 calendar days in advance of such record
date.
3. In the event of a stock split, conversion, recapitalization,
reorganization or any other similar transaction resulting in the
cancellation of all or any part of the Preferred Securities outstanding,
the Issuer or the Transfer Agent and Registrar shall send DEPOSITORY TRUST
COMPANY a notice of such event at least 5 business days prior to the
effective date of such event.
4. In the event of distribution on, or an offering or issuance of
rights with respect to, the Preferred Securities outstanding, the Issuer or
the Transfer Agent and Registrar shall send DEPOSITORY TRUST COMPANY a
notice specifying: (a) the amount of and conditions, if any, applicable to
the payment of any such distribution or any such offering or issuance of
rights; (b) any applicable expiration or deadline date, or any date by
which any action on the part of the holders of Preferred Securities is
required; and (c) the date any required notice is to be mailed by or on
behalf of the Issuer to holders of Preferred Securities or published by or
on behalf of the Issuer (whether by mail or publication, the "Publication
B-2
<PAGE>
Date"). Such notice shall be sent to DEPOSITORY TRUST COMPANY by a secure
means (e.g., legible telecopy, registered or certified mail, overnight
delivery) in a timely manner designed to assure that such notice is in
DEPOSITORY TRUST COMPANY's possession no later than the close of business
on the business day before the Publication Date. The Issuer or the Transfer
Agent and Registrar will forward such notice either in a separate secure
transmission for each CUSIP number or in a secure transmission of multiple
CUSIP numbers (if applicable) that includes a manifest or list of each
CUSIP number submitted in that transmission. (The party sending such notice
shall have a method to verify subsequently the use of such means and the
timeliness of such notice.) The Publication Date shall be not less than 30
calendar days nor more than 60 calendar days prior to the payment of any
such distribution or any such offering or issuance of rights with respect
to the Preferred Securities. After establishing the amount of payment to be
made on the Preferred Securities, the Issuer or the Transfer Agent and
Registrar will notify DEPOSITORY TRUST COMPANY's Dividend Department of
such payment 5 business days prior to payment date. Notices to DEPOSITORY
TRUST COMPANY's Dividend Department by telecopy shall be sent to (212)
709-1723. Such notices by mail or by any other means shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
The Issuer or the Transfer Agent and Registrar shall confirm
DEPOSITORY TRUST COMPANY's receipt of such telecopy by telephoning the
Dividend Department at (212) 709- 1270.
5. In the event of a redemption by the Issuer of the Preferred
Securities, notice specifying the terms of the redemption and the
Publication Date of such notice shall be sent by the Issuer or the Transfer
Agent and Registrar to DEPOSITORY TRUST COMPANY not less than 30 calendar
days prior to such event by a secure means in the manner set forth in
paragraph 4. Such redemption notice shall be sent to DEPOSITORY TRUST
COMPANY's Call Notification Department at (516) 227-4164 or (516) 227-4190,
and receipt of such notice shall be confirmed by telephoning (516)
227-4070. Notice by mail or by any other means shall be sent to:
Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, New York 11530-4719
6. In the event of any invitation to tender the Preferred
Securities, notice specifying the terms of the tender and the Publication
Date of such notice shall be sent by the Issuer or the Transfer Agent and
Registrar to DEPOSITORY TRUST COMPANY by a
B-3
<PAGE>
secure means and in a timely manner as described in paragraph 4. Notices to
DEPOSITORY TRUST COMPANY pursuant to this paragraph and notices of other
corporate actions (including mandatory tenders, exchanges and capital
changes), shall be sent, unless noti-
fication to another department is expressly provided for herein, by
telecopy to DEPOSITORY TRUST COMPANY's Reorganization Department at (212)
709-1093 or (212) 709-1094 and receipt of such notice shall be confirmed by
telephoning (212) 709-6884, or by mail or any other means to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
7. All notices and payment advices sent to DEPOSITORY TRUST
COMPANY shall contain the CUSIP number or numbers of the Preferred
Securities and the accompanying designation of the Preferred Securities,
which, as of the date of this letter, is "PacifiCorp Capital I % Cumulative
Quarterly Income Preferred Securities, Series A."
8. Distribution payments or other cash payments with respect to
the Preferred Securities evidenced by the Global Certificate shall be
received by Cede & Co., as nominee of DEPOSITORY TRUST COMPANY, or its
registered assigns in next day funds on each payment date (or in accordance
with existing arrangements between the Issuer or the Transfer Agent and
Registrar and DEPOSITORY TRUST COMPANY). Such payments shall be made
payable to the order of Cede & Co., and shall be addressed as follows:
NDFS Redemption Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
9. DEPOSITORY TRUST COMPANY may by prior written notice direct the
Issuer and the Transfer Agent and Registrar to use any other telecopy
number or address of DEPOSITORY TRUST COMPANY as the number or address to
which notices or payments may be sent.
10. In the event of a conversion, redemption, or any other similar
transaction (e.g., tender made and accepted in response to the Issuer's or
the Transfer Agent and Registrar's invitation) necessitating a reduction in
the aggregate number of Preferred Securities outstanding evidenced by the
Global Certificate, DEPOSITORY TRUST COMPANY, in its discretion: (a) may
request the Issuer or the Transfer Agent and Registrar to issue and
countersign a new Global Certificate; or (b) may make an appropriate
notation on the Global Certificate indicating the date and amount of such
reduction.
B-4
<PAGE>
11. DEPOSITORY TRUST COMPANY may discontinue its services as a
securities depositary with respect to the Preferred Securities at any time
by giving at least 90 days' prior written notice to the Issuer and the
Transfer Agent and Registrar (at which time DEPOSITORY TRUST COMPANY will
confirm with the Issuer or the Transfer Agent and Registrar the aggregate
number of Preferred Securities deposited with it) and discharging its
responsibilities with respect thereto under applicable law. Under such
circumstances, the Issuer may determine to make alternative arrangements
for book-entry settlement for the Preferred Securities, make available one
or more separate global certificates evidencing Preferred Securities to any
Participant having Preferred Securities credited to its DEPOSITORY TRUST
COMPANY account, or issue definitive Preferred Securities to the beneficial
holders thereof, and in any such case, DEPOSITORY TRUST COMPANY agrees to
cooperate fully with the Issuer and the Transfer Agent and Registrar and to
return the Global Certificate, duly endorsed for transfer as directed by
the Issuer or the Transfer Agent and Registrar, together with any other
documents of transfer reasonably requested by the Issuer or the Transfer
Agent and Registrar.
12. In the event that the Issuer determines that beneficial owners
of Preferred Securities shall be able to obtain definitive Preferred
Securities, the Issuer or the Transfer Agent and Registrar shall notify
DEPOSITORY TRUST COMPANY of the availability of certificates. In such
event, the Issuer or the Transfer Agent and Registrar shall issue, transfer
and exchange certificates in appropriate amounts, as required by DEPOSITORY
TRUST COMPANY and others, and DEPOSITORY TRUST COMPANY agrees to cooperate
fully with the Issuer and the Transfer Agent and Registrar and to return
the Global Certificate, duly endorsed for transfer as directed by the
Issuer or the Transfer Agent and Registrar, together with any other
documents of transfer reasonably requested by the Issuer or the Transfer
Agent and Registrar.
13. This letter may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original, but all
such counterparts shall together constitute but one and the same
instrument.
Nothing herein shall be deemed to require the Transfer Agent and
Registrar to advance funds on behalf of PacifiCorp Capital I .
Very truly yours,
PACIFICORP CAPITAL I
(As Issuer)
By
--------------------------------
Name:
Title: Administrative Trustee
B-5
<PAGE>
THE BANK OF NEW YORK,
AS PROPERTY TRUSTEE
-----------------------------------
(As Transfer Agent and Registrar)
By
--------------------------------
Name:
Title:
RECEIVED AND ACCEPTED:
THE DEPOSITORY TRUST COMPANY
By
-------------------------------
Authorized Officer
B-6
<PAGE>
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
C-1
Certificate Evidencing Common Securities
of
PacifiCorp Capital I
______% Common Securities
(liquidation amount $25 per Common Security)
PacifiCorp Capital I, a statutory business trust created under the
laws of the State of Delaware (the "Trust") hereby certifies that
PacifiCorp (the "Holder") is the registered owner of
______________________________________________ (_______________) common
securities of the Trust representing undivided beneficial interests in the
assets of the Trust and designated the ______% Common Securities
(liquidation amount $25 per Common Security) (the "Common Securities"). In
accordance with Section 510 of the Trust Agreement (as defined below) the
Common Securities are not transferable and any attempted transfer hereof
shall be void. The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Common Securities are set
forth in, and this certificate and the Common Securities represented hereby
are issued and shall in all respects be subject to the terms and provisions
of, the Amended and Restated Trust Agreement of the Trust dated as of May
__, 1996, as the same may be amended from time to time (the "Trust
Agreement"), including the designation of the terms of the Common
Securities as set forth therein. The Trust will furnish a copy of the Trust
Agreement to the Holder without charge upon written request to the Trust at
its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this certificate this ________ day of ______, _____.
PACIFICORP CAPITAL I
By:
-------------------------------
Name:
Administrative Trustee
C-1
<PAGE>
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of May __, 1996, between PacifiCorp, an Oregon
corporation ("PacifiCorp"), and PacifiCorp Capital I, a Delaware business
trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the
"Common Securities") to, and receive Debentures from, PacifiCorp and to
issue and sell ______% Cumulative Quarterly Income Preferred Securities,
Series A (the "Preferred Securities") with such powers, preferences and
special rights and restrictions as are set forth in the Amended and
Restated Trust Agreement of the Trust dated as of May __, 1996 as the same
may be amended from time to time (the "Trust Agreement");
WHEREAS, PacifiCorp will directly or indirectly own all of the
Common Securities of Trust and will issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each holder of
the Preferred Securities, which purchase PacifiCorp hereby agrees shall
benefit PacifiCorp and which purchase PacifiCorp acknowledges will be made
in reliance upon the execution and delivery of this Agreement, PacifiCorp,
including in its capacity as holder of the Common Securities, and the Trust
hereby agree as follows:
ARTICLE I
Section 1.1. Guarantee by PacifiCorp.
Subject to the terms and conditions hereof, PacifiCorp, including
in its capacity as holder of the Common Securities, hereby irrevocably and
unconditionally guarantees to each person or entity to whom the Trust is
now or hereafter becomes indebted or liable (the "Beneficiaries") the full
payment, when and as due, of any and all Obligations (as hereinafter
defined) to such Beneficiaries. As used herein, "Obligations" means any
costs, expenses or liabilities of the Trust, other than obligations of the
Trust to pay to holders of any Preferred Securities or other similar
interests in the Trust the amounts due such holders pursuant to the terms
of the Preferred Securities or such other similar interests, as the case
may be. This Agreement is intended to be for the benefit of, and to be
enforceable by, all such Beneficiaries, whether or not such Beneficiaries
have received notice hereof.
D-1
<PAGE>
Section 1.2. Term of Agreement.
This Agreement shall terminate and be of no further force and
effect upon the later of (a) the date on which full payment has been made
of all amounts payable to all holders of all the Preferred Securities
(whether upon redemption, liquidation, exchange or otherwise) and (b) the
date on which there are no Beneficiaries remaining; provided, however, that
this Agreement shall continue to be effective or shall be reinstated, as
the case may be, if at any time any holder of Preferred Securities or any
Beneficiary must restore payment of any sums paid under the Preferred
Securities, under any Obligation, under the Guarantee Agreement dated the
date hereof by PacifiCorp and The Bank of New York as guarantee trustee or
under this Agreement for any reason whatsoever. This Agreement is
continuing, irrevocable, unconditional and absolute.
Section 1.3. Waiver of Notice.
PacifiCorp hereby waives notice of acceptance of this Agreement
and of any Obligation to which it applies or may apply, and PacifiCorp
hereby waives presentment, demand for payment, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices
and demands.
Section 1.4. No Impairment.
The obligations, covenants, agreements and duties of PacifiCorp
under this Agreement shall in no way be affected or impaired by reason of
the happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all
or any portion of the Obligations or for the performance of any other
obligation under, arising out of, or in connection with, the obligations;
(b) any failure, omission, delay or lack of diligence on the
part of the Beneficiaries to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Beneficiaries with respect to
the Obligations or any action on the part of the Trust granting indulgence
or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy, assignment
for the benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Trust
or any of the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice to, or
obtain the consent of, PacifiCorp with respect to the happening of any of
the foregoing.
D-2
<PAGE>
Section 1.5. Enforcement.
A Beneficiary may enforce this Agreement directly against
PacifiCorp and PacifiCorp waives any right or remedy to require that any
action be brought against the Trust or any other person or entity before
proceeding against PacifiCorp.
ARTICLE II
Section 2.1. Binding Effect.
All guarantees and agreements contained in this Agreement shall
bind the successors, assigns, receivers, trustees and representatives of
PacifiCorp and shall inure to the benefit of the Beneficiaries.
Section 2.2. Amendment.
So long as there remains any Beneficiary or any Preferred
Securities of any series are outstanding, this Agreement shall not be
modified or amended in any manner adverse to such Beneficiary or to the
holders of the Preferred Securities.
Section 2.3. Notices.
Any notice, request or other communication required or permitted
to be given hereunder shall be given in writing by delivering the same
against receipt therefor by facsimile transmission (confirmed by mail),
telex or by registered or certified mail, addressed as follows (and if so
given, shall be deemed given when mailed or upon receipt of an answer-back,
if sent by telex):
PacifiCorp Capital I
c/o The Bank of New York
101 Barclay Street
New York, NY 10286
Facsimile No.: (212) 815-5915
Attention: Corporate Trust Trustee Administration
PacifiCorp
700 NE Multnomah, Suite 1600
Portland, Oregon 97232
Facsimile No.: (503) 731-2092
Attention: Treasurer
Section 2.4 This agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of New York (without
regard to conflict of laws principles).
D-3
<PAGE>
THIS AGREEMENT is executed as of the day and year first above
written.
PACIFICORP
By:
-------------------------------
Name:
Title:
PACIFICORP CAPITAL I
By:
-------------------------------
Name:
Administrative Trustee
D-4
<PAGE>
EXHIBIT E
IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT
This Preferred Security is a Global Certificate within the meaning of the
Trust Agreement hereinafter referred to and is registered in the name of
The Depository Trust Company (the "Depository") or a nominee of the
Depository. This Preferred Security is exchangeable for Preferred
Securities registered in the name of a person other than the Depository or
its nominee only in the limited circumstances described in the Trust
Agreement (as defined below) and no transfer of this Preferred Security
(other than a transfer of this Preferred Security as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository
to the Depository or another nominee of the Depository) may be registered
except in limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York)
to PacifiCorp Capital I or its agent for registration of transfer, exchange
or payment, and any Preferred Security issued is registered in the name of
Cede & Co. or such other name as requested by an authorized representative
of The Depository Trust Company and any payment hereon is made to Cede &
Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A
PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has
an interest herein.
Certificate Number Number of Preferred Securities
P-
CUSIP NO.
Certificate Evidencing Preferred Securities
of
PacifiCorp Capital I
____% Cumulative Quarterly Income Preferred Securities,
Series A
(liquidation amount $25 per Preferred Security)
PacifiCorp Capital I, a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that
_____________ (the "Holder") is the registered owner of ________ (______)
preferred securities of the Trust representing an undivided beneficial
interest in the assets of the Trust and designated PacifiCorp Capital I %
Cumulative Quarterly Income Preferred Securities, Series A (liquidation
amount $25 per Preferred Security) (the "Preferred Securities"). The
Preferred Securities are transferable on the books and records of the
Trust, in person or by a duly authorized attorney, upon
E-1
<PAGE>
surrender of this certificate duly endorsed and in proper form for transfer
as provided in Section 504 of the Trust Agreement (as defined below). The
designations, rights, privileges, restrictions, preferences and other terms
and provisions of the Preferred Securities are set forth in, and this
certificate and the Preferred Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the
Amended and Restated Trust Agreement of the Trust dated as of May __, 1996,
as the same may be amended from time to time (the "Trust Agreement"),
including the designation of the terms of Preferred Securities as set forth
therein. The Holder is entitled to the benefits of the Guarantee Agreement
entered into by PacifiCorp, an Oregon corporation, and The Bank of New
York, as guarantee trustee, dated as of May __, 1996 (the "Guarantee"), to
the extent provided therein. The Trust will furnish a copy of the Trust
Agreement and the Guarantee to the Holder without charge upon written
request to the Trust at its principal place of business or registered
office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this certificate this__________ day of ___________,
_____.
PACIFICORP CAPITAL I
By:
-------------------------------
Name
Administrative Trustee
E-2
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
agent to transfer this Preferred Securities Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date: ____________________________
Signature: ______________________________________
(Sign exactly as your name appears on the other side of this Preferred
Securities Certificate)
Signature(s) Guaranteed:
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCK BROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT
TO SEC RULE 17Ad-15.
E-3
================================================================================
GUARANTEE AGREEMENT
Between
PacifiCorp
(as Guarantor)
and
The Bank of New York
(as Trustee)
dated as of
May __, 1996
================================================================================
<PAGE>
TABLE OF CONTENTS
------------------
Page
----
ARTICLE 1
DEFINITIONS
SECTION 101. Definitions..............................................1
ARTICLE II
TRUST INDENTURE ACT
SECTION 201. Trust Indenture Act; Application.........................4
SECTION 202. List of Holders..........................................5
SECTION 203. Reports by the Guarantee Trustee.........................5
SECTION 204. Periodic Reports to Guarantee Trustee....................5
SECTION 205. Evidence of Compliance with Conditions Precedent.........5
SECTION 206. Events of Default; Waiver................................6
SECTION 207. Event of Default; Notice.................................6
SECTION 208. Conflicting Interests....................................6
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 301. Powers and Duties of the Guarantee Trustee............... 6
SECTION 302. Certain Rights of Guarantee Trustee...................... 8
SECTION 303. Indemnity................................................10
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 401. Guarantee Trustee; Eligibility...........................10
SECTION 402. Appointment, Removal and Resignation of the
Guarantee Trustee........................................10
ARTICLE V
GUARANTEE
SECTION 501. Guarantee................................................11
SECTION 502. Waiver of Notice and Demand..............................11
SECTION 503. Obligations Not Affected.................................12
SECTION 504. Rights of Holders........................................13
SECTION 505. Guarantee of Payment.....................................13
SECTION 506. Subrogation..............................................13
i
<PAGE>
SECTION 507. Independent Obligations..................................13
ARTICLE VI
COVENANTS AND SUBORDINATION
SECTION 601. Subordination...........................................14
SECTION 602. Pari Passu Guarantees...................................14
ARTICLE VII
TERMINATION
SECTION 701. Termination.............................................14
ARTICLE VIII
MISCELLANEOUS
SECTION 801. Successors and Assigns..................................14
SECTION 802. Amendments..............................................15
SECTION 803. Notices.................................................15
SECTION 804. Benefit.................................................16
SECTION 805. Interpretation..........................................16
SECTION 806. Governing Law...........................................17
ii
<PAGE>
CROSS-REFERENCE TABLE*
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
- ------------------- ----------
310(a)........................................................... 401(a)
310(b............................................................ 401(c), 208
310(c)........................................................... Inapplicable
311(a)........................................................... 202(b)
311(b)........................................................... 202(b)
311(c)........................................................... Inapplicable
312(a)........................................................... 202(a)
312(b)........................................................... 202(b)
313.............................................................. 203
314(a)........................................................... 204
314(b)........................................................... Inapplicable
314(c)........................................................... 205
314(d)........................................................... Inapplicable
314(e)........................................................... 101, 205, 302
314(f)........................................................... 201, 302
315(a)........................................................... 301(d)
315(b)........................................................... 207
315(c)........................................................... 301
315(d)........................................................... 301(d)
316(a)........................................................... 101, 206, 504
316(b)........................................................... 503
316(c)........................................................... 802
317(a)........................................................... Inapplicable
317(b)........................................................... Inapplicable
318(a)........................................................... 201(b)
318(b)........................................................... 201
318(c)........................................................... 201(a)
- --------
* This Cross-Reference Table does not constitute part of the
Guarantee Agreement and shall not affect the interpretation of any
of its terms or provisions.
<PAGE>
GUARANTEE AGREEMENT
-------------------
This GUARANTEE AGREEMENT, dated as of May __, 1996, is executed
and delivered by PacifiCorp, an Oregon corporation (the "Guarantor"), and
The Bank of New York, a New York banking corporation organized under the
laws of the State of New York, as trustee (the "Guarantee Trustee"), for
the benefit of the Holders (as defined herein) from time to time of the
Preferred Securities (as defined herein) of PacifiCorp Capital I, a
Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Trust Agreement"), dated as of May __, 1996 among the Issuer Trustees
named therein, the Guarantor, as Depositor, and the Holders from time to
time of undivided beneficial interests in the assets of the Issuer, the
Issuer is issuing ____________ of its ____% Cumulative Quarterly Income
Preferred Securities, Series A (liquidation preference $25 per preferred
security) (the "Preferred Securities") representing preferred undivided
beneficial interests in the assets of the Issuer and having the terms set
forth in the Trust Agreement;
WHEREAS, the Preferred Securities will be issued by the Issuer and
the proceeds thereof, together with the proceeds from the issuance of the
Issuer's Common Securities (as defined below), will be used to purchase the
Debentures (as defined in the Trust Agreement) of the Guarantor which will
be deposited with The Bank of New York, as Property Trustee under the Trust
Agreement, as trust assets; and
WHEREAS, as incentive for the Holders to purchase Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree,
to the extent set forth herein, to pay to the Holders of the Preferred
Securities the Guarantee Payments (as defined herein) and to make certain
other payments on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor executes and delivers this Guarantee
Agreement for the benefit of the Holders from time to time of the Preferred
Securities.
ARTICLE I
DEFINITIONS
SECTION 101. Definitions.
As used in this Guarantee Agreement, the terms set forth below
shall, unless the context otherwise requires, have the following meanings.
Capitalized or otherwise defined terms used but not otherwise defined
herein shall have the meanings assigned to such terms in the Trust
Agreement as in effect on the date hereof.
1
<PAGE>
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person, provided, however, that
an Affiliate of the Guarantor shall not be deemed to include the Issuer.
For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms "controlling"
and "controlled" have meanings correlative to the foregoing.
"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Issuer.
"Debt" means, with respect to any Person, whether recourse is to
all or a portion of the assets of such Person and whether or not
contingent, (i) every obligation of such Person for money borrowed; (ii)
every obligation of such Person evidenced by bonds, debentures, notes or
other similar instruments, including obligations incurred in connection
with the acquisition of property, assets or businesses; (iii) every
reimbursement obligation of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of such
Person; (iv) every obligation of such Person issued or assumed as the
deferred purchase price of property or services (but excluding trade
accounts payable or accrued liabilities arising in the ordinary course of
business); (v) every capital lease obligation of such Person; and (vi)
every obligation of the type referred to in clauses (i) through (v) of
another Person and all dividends of another Person the payment of which, in
either case, such Person has guaranteed or is responsible or liable,
directly or indirectly, as obligor or otherwise.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Guarantee Agreement; provided,
however, that, except with respect to a default in payment of any Guarantee
Payments, the Guarantor shall have received notice of default and shall not
have cured such default within 60 days after receipt of such notice.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Preferred
Securities, to the extent not paid or made by or on behalf of the Issuer:
(i) any accumulated and unpaid Distributions (as defined in the Trust
Agreement) required to be paid on the Preferred Securities, to the extent
the Issuer shall have funds on hand available therefor at such time, (ii)
the redemption price, including all accrued and unpaid Distributions to the
date of redemption (the "Redemption Price"), with respect to the Preferred
Securities called for redemption by the Issuer to the extent the Issuer
shall have funds on hand available therefor at such time, and (iii) upon a
voluntary or involuntary termination, winding-up or liquidation of the
Issuer, unless Debentures are distributed to the Holders, the lesser of (a)
the aggregate of the liquidation preference of $25 per Preferred Security
plus accumulated and unpaid Distributions on the Preferred Securities to
the date of payment to the extent the Issuer shall have funds on hand
available to make such payment at
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such time and (b) the amount of assets of the Issuer remaining available
for distribution to Holders in liquidation of the Issuer (in either case,
the "Liquidation Distribution").
"Guarantee Trustee" means The Bank of New York, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment
pursuant to the terms of this Guarantee Agreement and thereafter means each
such Successor Guarantee Trustee.
"Holder" means any holder, as registered on the books and records
of the Issuer, of any Preferred Securities; provided, however, that in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder,
"Holder" shall not include the Guarantor, the Guarantee Trustee or any
Affiliate of the Guarantor or the Guarantee Trustee.
"Indenture" means the Indenture dated as of May 1, 1995, as
supplemented and amended between the Guarantor and The Bank of New York, as
trustee.
"List of Holders" has the meaning specified in Section 202(a).
"Majority in liquidation preference of the Preferred Securities"
means, except as provided by the Trust Indenture Act, a vote by the
Holder(s), voting separately as a class, of more than 50% of the
liquidation preference of all then outstanding Preferred Securities issued
by the Issuer.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman and Chief Executive Officer, President
or a Vice President, and by the Treasurer, an Associate Treasurer, an
Assistant Treasurer, the Controller, the Secretary or an Assistant
Secretary of such Person, and delivered to the Guarantee Trustee. Any
Officers' Certificate delivered with respect to compliance with a condition
or covenant provided for in this Guarantee Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
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"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other
entity of whatever nature.
"Responsible Officer" means, with respect to the Guarantee
Trustee, any Senior Vice President, any Vice President, any Assistant Vice
President, the Secretary, any Assistant Secretary, the Treasurer, any
Assistant Treasurer, any Trust Officer or Assistant Trust Officer or any
other officer of the Corporate Trust Department of the Guarantee Trustee
customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"Senior Indebtedness" means the principal of, and premium, if any,
and interest on and any other payment due pursuant to any of the following,
whether outstanding at the date of execution of this Guarantee or
thereafter incurred, created or assumed: (a) all indebtedness of the
Guarantor evidenced by notes, debentures, bonds or other securities sold by
the Guarantor 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 Guarantor or in effect guaranteed by the Guarantor 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 this Guarantee. Such
Senior Indebtedness shall continue to be Senior Indebtedness and entitled
to the benefits of the subordination provisions set forth in Article VI of
this Guarantee irrespective of any amendment, modification or waiver of any
term of such Senior Indebtedness.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section
401.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
ARTICLE II
TRUST INDENTURE ACT
SECTION 201. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of the
Trust Indenture Act that are required to be part of this
Guarantee Agreement and shall, to the extent applicable, be
governed by such provisions.
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(b) If and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties
imposed by Sections 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
SECTION 202. List of Holders.
(a) The Guarantor shall furnish or cause to be furnished to the
Guarantee Trustee (a) semiannually, on or before January 15
and July 15 of each year, a list, in such form as the
Guarantee Trustee may reasonably require, of the names and
addresses of the Holders ("List of Holders") as of a date
not more than 15 days prior to the delivery thereof, and (b)
at such other times as the Guarantee Trustee may request in
writing, within 30 days after the receipt by the Guarantor
of any such request, a List of Holders as of a date not more
than 15 days prior to the time such list is furnished, in
each case to the extent such information is in the
possession or control of the Guarantor and is not identical
to a previously supplied list of Holders or has not
otherwise been received by the Guarantee Trustee in its
capacity as such. The Guarantee Trustee may destroy any List
of Holders previously given to it on receipt of a new List
of Holders.
(b) The Guarantee Trustee shall comply with its obligations
under Section 311(a), Section 311(b) and Section 312(b) of
the Trust Indenture Act.
SECTION 203. Reports by the Guarantee Trustee.
Not later than July 15 of each year, commencing July 15, 1997, the
Guarantee Trustee shall provide to the Holders such reports as are required
by Section 313 of the Trust Indenture Act, if any, in the form and in the
manner provided by Section 313 of the Trust Indenture Act. The Guarantee
Trustee shall also comply with the requirements of Section 313(d) of the
Trust Indenture Act.
SECTION 204. Periodic Reports to Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee, the
Securities and Exchange Commission and the Holders such documents, reports
and information, if any, as required by Section 314 of the Trust Indenture
Act and the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act.
SECTION 205. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence
of compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate
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or opinion required to be given by an officer pursuant to Section 314(c)(1)
may be given inthe form of an Officers' Certificate.
SECTION 206. Events of Default: Waiver.
The Holders of a Majority in liquidation preference of the
Preferred Securities may, by vote, on behalf of the Holders, waive any past
Event of Default and its consequences. Upon such waiver, any such Event of
Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this Guarantee
Agreement, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent therefrom.
SECTION 207. Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first
class postage prepaid, to the Holders, notices of all Events
of Default known to the Guarantee Trustee, unless such
defaults have been cured before the giving of such notice,
provided, that, except in the case of a default in the
payment of a Guarantee Payment, the Guarantee 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
Guarantee Trustee in good faith determines that the
withholding of such notice is in the interests of the
Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge
of any Event of Default unless the Guarantee Trustee shall
have received written notice, or a Responsible Officer
charged with the administration of the Trust Agreement shall
have obtained written notice, of such Event of Default.
SECTION 208. Conflicting Interests.
The Trust Agreement shall be deemed to be specifically described
in this Guarantee Agreement for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 301. Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee
Trustee for the benefit of the Holders, and the Guarantee
Trustee shall not transfer this Guarantee Agreement to any
Person except a Holder exercising his or her
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rights pursuant to Section 504(iv) or to a Successor
Guarantee Trustee on acceptance by such Successor Guarantee
Trustee of its appointment to act as Successor Guarantee
Trustee. The right, title and interest of the Guarantee
Trustee shall automatically vest in any Successor Guarantee
Trustee, upon acceptance by such Successor Guarantee Trustee
of its appointment hereunder, and such vesting and cessation
of title shall be effective whether or not conveyancing
documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the
Guarantee Trustee shall enforce this Guarantee Agreement for
the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that
may have occurred, shall undertake to perform only such
duties as are specifically set forth in this Guarantee
Agreement, and no implied covenants shall be read into this
Guarantee Agreement against the Guarantee Trustee. In case
an Event of Default has occurred (that has not been cured or
waived pursuant to Section 206), the Guarantee Trustee shall
exercise such of the rights and powers vested in it by this
Guarantee Agreement, and use the same degree of care and
skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of
his or her own affairs.
(d) No provision of this Guarantee Agreement shall be construed
to relieve the Guarantee from liability for failure to act
or willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and
after the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Guarantee Trustee
shall be determined solely by the express provisions of this
Guarantee Agreement, and the Guarantee Trustee shall not be
liable except for the performance of such duties and obligations
as are specifically set forth in this Guarantee Agreement; and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to
the Guarantee Trustee and conforming to the requirements of this
Guarantee Agreement; but in the case of any such certificates or
opinions that by any provision hereof or of the Trust Indenture
Act are specifically required to be furnished to the Guarantee
Trustee, the Guarantee Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Guarantee Agreement;
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(ii) the Guarantee Trustee shall not be liable for any error
of judgment made in good faith by a Responsible officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was negligent
in ascertaining the pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a Majority in
liquidation preference of the Preferred Securities relating to the time,
method and place of conducting any proceeding for any remedy available to
the Guarantee Trustee, or exercising any trust or power conferred upon the
Guarantee Trustee under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require
the Guarantee Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if the Guarantee Trustee shall
have reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this Guarantee
Agreement or adequate indemnity against such risk or liability is not
reasonably assured to it.
SECTION 302. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 301:
(i) The Guarantee Trustee may rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document reasonably believed by it to be
genuine and to have been signed, sent or presented by the proper party or
parties.
(ii) Any direction or act of the Guarantor contemplated by
this Guarantee Agreement shall be sufficiently evidenced by an Officers'
Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a matter be
proved or established before taking, suffering or omitting to take any
action hereunder, the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and rely upon an Officers' Certificate which, upon receipt of such
request from the Guarantee Trustee, shall be promptly delivered by the
Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel of
its choice, and the written advice or opinion of such legal counsel with
respect to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be taken
by it hereunder in good faith and in accordance with such advice or
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opinion. Such legal counsel may be legal counsel to the Guarantor or any of
its Affiliates and may be one of its employees. The Guarantee Trustee shall
have the right at any time to seek instructions concerning the
administration of this Guarantee Agreement from any court of competent
jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee
Agreement at the request or direction of any Holder, unless such Holder
shall have provided to the Guarantee Trustee such adequate security and
indemnity as would satisfy a reasonable person in the position of the
Guarantee Trustee, against the costs, expenses (including attorneys' fees
and expenses) and liabilities that might be incurred by it in complying
with such request or direction, including such reasonable advances as may
be requested by the Guarantee Trustee; provided that nothing contained in
this Section 302(a)(v) shall be taken to relieve the Guarantee Trustee,
upon the occurrence of an Event of Default, of its obligation to exercise
the rights and powers vested in it by this Guarantee Agreement.
(vi) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through its agents or attorneys, and the Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent
or attorney appointed with due care by it hereunder.
(viii) Whenever in the administration of this Guarantee
Agreement the Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing, any remedy or right or taking any
other action hereunder, the Guarantee Trustee (A) may request instructions
from the Holders, (B) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (C)
shall be protected in acting in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to
impose any duty or obligation on the Guarantee Trustee to perform any act
or acts or exercise any right, power, duty or obligation conferred or
imposed on it in any jurisdiction in which it shall be illegal, or in which
the Guarantee Trustee shall be unqualified or incompetent in accordance
with applicable law, to perform any such act or acts or to exercise any
such right, power, duty or obligation. No permissive power or authority
available to the Guarantee Trustee shall be construed to be a duty to act
in accordance with such power and authority.
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SECTION 303. Indemnity.
The Guarantor agrees to indemnify the Guarantee Trustee for, and
to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Guarantee Trustee,
arising out of or in connection with the acceptance or administration of
this Guarantee Agreement, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The Guarantee Trustee
will not claim or exact any lien or charge on any Guarantee Payments as a
result of any amount due to it under this Guarantee Agreement.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 401. Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of at
least $50,000,000, and shall be a corporation meeting the requirements of
Section 310 (c) of the Trust Indenture Act. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority, then, for the
purposes of this Section and to the extent permitted by the Trust Indenture
Act, the combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent
report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be
eligible to so act under Section 401(a), the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section
402(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act,
the Guarantee Trustee and Guarantor shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.
SECTION 402. Appointment, Removal and Resignation of the Guarantee
Trustee.
(a) Subject to Section 402(b), the Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
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(b) The Guarantee Trustee shall not be removed until a Successor
Guarantee Trustee has appointed and has accepted such appointment by
written instrument executed by such Successor Guarantee Trustee and
delivered to the Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold office
until a Successor Guarantee Trustee shall have been appointed or until its
removal or resignation. The Guarantee Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in
writing executed by the Guarantee Trustee and delivered to the Guarantor,
which resignation shall not take effect until a Successor Guarantee Trustee
has been appointed and has accepted such appointment by instrument in
writing executed by such Successor Guarantee Trustee and delivered to the
Guarantor and the resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed
and accepted appointment as provided in this Section 402 within 60 days
after delivery to the Guarantor of an instrument of resignation, the
resigning Guarantee Trustee may petition, at the expense of the Guarantor,
any court of competent jurisdiction for appointment of a Successor
Guarantee Trustee. Such court may thereupon, after prescribing such notice,
if any, as it may deem proper, appoint a Successor Guarantee Trustee.
ARTICLE V
GUARANTEE
SECTION 501. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by or on behalf of the Issuer), as and when due,
regardless of any defense, right of set-off or counterclaim which the
Issuer may have or assert. The Guarantor's obligation to make a Guarantee
Payment may be satisfied by direct payment of the required amounts by the
Guarantor to the Holders or by causing the Issuer to pay such amounts to
the Holders.
SECTION 502. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of the Guarantee
Agreement and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first
against the Guarantee Trustee, Issuer or any other Person before proceeding
against the Guarantor, protest, notice of nonpayment, notice of dishonor,
notice of redemption and all other notices and demands.
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SECTION 503. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee Agreement shall in no way be affected or impaired by
reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of
the performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Preferred Securities
to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or
any portion of the Distributions (other than an extension of time for
payment of Distributions that results from the extension of any interest
payment period on the Debentures as so provided in the Indenture),
Redemption Price, Liquidation Distribution or any other sums payable under
the terms of the Preferred Securities or the extension of time for the
performance of any other obligation under, arising out of, or in connection
with, the Preferred Securities;
(c) any failure, omission, delay or lack of diligence on the part
of the Holders to enforce, assert or exercise any right, privilege, power
or remedy conferred on the Holders pursuant to the terms of the Preferred
Securities, or any action on the part of the Issuer granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Issuer
or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it
being the intent of this Section 503 that the obligations of the Guarantor
hereunder shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
the consent of, the Guarantor with respect to the happening of any of the
foregoing.
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SECTION 504. Rights of Holders.
The Guarantor expressly acknowledges that: (i) this Guarantee
Agreement will be deposited with the Guarantee Trustee to be held for the
benefit of the Holders; (ii) the Guarantee Trustee has the right to enforce
this Guarantee Agreement on behalf of the Holders; (iii) the Holders of a
Majority in liquidation preference of the Preferred Securities have the
right to direct the time, method and place of conducting any proceeding for
any remedy available to the Guarantee Trustee in respect of this Guarantee
Agreement or exercising any trust or power conferred upon the Guarantee
Trustee under this Guarantee Agreement; and (iv) any Holder may institute a
legal proceeding directly against the Guarantor to enforce its rights under
this Guarantee Agreement, without first instituting a legal proceeding
against the Guarantee Trustee, the Issuer or any other Person.
SECTION 505. Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not of
collection. This Guarantee Agreement will not be discharged except by
payment of the Guarantee Payments in full (without duplication of amounts
theretofore paid by the Issuer) or upon distribution of Debentures to
Holders as provided in the Trust Agreement.
SECTION 506. Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the
Holders against the Issuer in respect of any amounts paid to the Holders by
the Guarantor under this Guarantee Agreement and shall have the right to
waive payment by the Issuer pursuant to Section 501; provided, however,
that the Guarantor shall not (except to the extent required by mandatory
provisions of law) be entitled to enforce or exercise any rights which it
may acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Guarantee
Agreement, if, at the time of any such payment, any amounts are due and
unpaid under this Guarantee Agreement. If any amount shall be paid to the
Guarantor in violation of the preceding sentence, the Guarantor agrees to
hold such amount in trust for the Holders and to pay over such amount to
the Holders.
SECTION 507. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities and that the Guarantor shall be liable as principal and as
debtor hereunder to make Guarantee Payments pursuant to the terms of this
Guarantee Agreement notwithstanding the occurrence of any event referred to
in subsections (a) through (g), inclusive, of Section 503 hereof.
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ARTICLE VI
COVENANTS AND SUBORDINATION
SECTION 601. Subordination.
This Guarantee Agreement will constitute an unsecured obligation
of the Guarantor and will rank subordinate and junior in right of payment
to all Senior Indebtedness of the Guarantor.
SECTION 602. Pari Passu Guarantees.
This Guarantee Agreement shall rank pari passu with any similar
Guarantee Agreements issued by the Guarantor on behalf of the holders of
Preferred Securities issued by PacifiCorp Capital II.
ARTICLE VII
TERMINATION
SECTION 701. Termination.
This Guarantee Agreement shall terminate and be of no further
force and effect upon (i) full payment of the Redemption Price of all
Preferred Securities, (ii) the distribution of Debentures to the Holders in
exchange for all of the Preferred Securities or (iii) full payment of the
amounts payable in accordance with the Trust Agreement upon liquidation of
the Issuer. Notwithstanding the foregoing, this Guarantee Agreement will
continue to be effective or will be reinstated, as the case may be, if at
any time any Holder must restore payment of any sums paid with respect to
Preferred Securities or this Guarantee Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 801. Successors and Assigns.
All guarantees and agreements contained in this Guarantee
Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the
Holders of the Preferred Securities then outstanding. Except in connection
with a consolidation, merger or sale involving the Guarantor that is
permitted under Article Ten of the Indenture and pursuant to which the
assignee agrees in writing to perform the Guarantor's obligations
hereunder, the Guarantor shall not assign its obligations hereunder.
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SECTION 802. Amendments.
Except with respect to any changes which do not adversely affect
the rights of the Holders in any material respect (in which case no consent
of the Holders will be required), this Guarantee Agreement may only be
amended with the prior approval of the Holders of not less than a Majority
in liquidation preference of the Preferred Securities. The provisions of
Article VI of the Trust Agreement concerning meetings of the Holders shall
apply to the giving of such approval.
SECTION 803. Notices.
Any notice, request or other communication required or permitted
to be given hereunder shall be in writing, duly signed by the party giving
such notice, and delivered, telecopied or mailed by first class mail as
follows:
(a) if given to the Guarantor, to the address set forth below or
such other address as the Guarantor may give notice of to the Holders:
PacifiCorp
Suite 1600
700 NE Multnomah
Portland, Oregon 97232
Facsimile No.: (503) 731-2092
Attention: Treasurer
(b) if given to the Issuer, in care of the Guarantee Trustee, at
the Issuer's (and the Guarantee Trustee's) address set forth below or such
other address as the Guarantee Trustee on behalf of the Issuer may give
notice to the Holders:
PacifiCorp Capital I
c/o PacifiCorp
Suite 1600
700 NE Multnomah
Portland, OR 97232
Facsimile No.: (503) 731-2092
Attention: Treasurer
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with a copy to:
The Bank of New York
101 Barclay Street
21 West
New York, NY 10286
Facsimile No.: (212) 815-5915
Attention: Corporate Trust Trustee Administration
(c) if given to any Holder, at the address set forth on the books
and records of the Issuer.
All notices hereunder shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first
class mail, postage prepaid, except that if a notice or other document is
refused delivery or cannot be delivered because of a changed address of
which no notice was given, such notice or other document shall be deemed to
have been delivered on the date of such refusal or inability to deliver.
SECTION 804. Benefit.
This Guarantee Agreement is solely for the benefit of the Holders
and is not separately transferable from the Preferred Securities.
SECTION 805. Interpretation.
In this Guarantee Agreement, unless the context otherwise
requires:
(a) capitalized terms used in this Guarantee Agreement but not
defined in the preamble hereto have the respective meanings assigned to
them in Section 101;
(b) a term defined anywhere in this Guarantee Agreement has the
same meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or
amended from time to time;
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Guarantee Agreement unless otherwise defined in this
Guarantee Agreement or unless the context otherwise requires;
16
<PAGE>
(f) a reference to the singular includes the plural and vice
versa; and
(g) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
SECTION 806. GOVERNING LAW.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
THIS GUARANTEE AGREEMENT is executed as of the day and year first
above written.
PACIFICORP
By:
-------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Guarantee
Trustee
By:
-------------------------------
Name:
Title:
17
STOEL RIVES LLP
---------------
ATTORNEYS
Port of Portland Building
700 NE Multnomah, Suite 950
Portland, Oregon 97232-4109
Telephone (503) 294-9100 Fax (503) 230-1907
Internet:www.stoel.com
May 8, 1996
PacifiCorp
700 NE Multnomah, Suite 1600
Portland, OR 97232
PacifiCorp Capital I
c/o PacifiCorp
700 NE Multnomah, Suite 1600
Portland, OR 97232
PacifiCorp Capital II
c/o 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 $250,000,000 in aggregate
principal amount of Junior Subordinated Debentures (the "Debentures") to be
issued pursuant to an indenture between the Company and The Bank of New
York, as Trustee, as supplemented by two Supplemental Indentures
(collectively, the "Indenture"), and the proposed issuance and sale by
PacifiCorp Capital I and PacifiCorp Capital II, each a business trust
created under the laws of the State of Delaware (collectively, the "Issuer
Trusts"), from time to time of not to exceed $250,000,000 of their
preferred securities, representing preferred undivided beneficial interests
in the assets of such Issuer Trusts (the "Preferred Securities"), in one or
more series, all as contemplated by the Registration Statement on Form S-3
(the "Registration Statement") about to be filed by the Company and the
Issuer Trusts with the Securities and Exchange Commission for the
registration of the Debentures and Preferred Securities under the
Securities Act of 1933 (the "Act").
As described in the Registration Statement, the Company may issue the
Debentures to (a) the public or institutional investors or (b) the Issuer
Trusts in connection with the issuance of Preferred Securities. If
Preferred Securities are issued by the Issuer Trusts, the proceeds
therefrom, together with the capital contribution of the Company, as owner
<PAGE>
May 8, 1996
Page 2
of the common securities of each Issuer Trust, will be used to purchase
Debentures. The Company will guarantee the payment by each Issuer Trust of
distributions with respect to the Preferred Securities and of amounts due
upon liquidation of each Issuer Trust or redemption of the Preferred
Securities (collectively, the "Guarantees"), all to the extent such Issuer
Trust has funds available therefor as set forth in the Guarantees. The
Preferred Securities are to be issued by each Issuer Trust pursuant to a
Trust Agreement, each as amended and restated.
In connection with the foregoing, we are of the opinion that:
(a) All action necessary to make valid the proposed issuance of the
Debentures by the Company will have been taken when:
1. The Registration Statement, as it may be amended, shall have
become effective;
2. The Indenture shall have been qualified under the Trust
Indenture Act of 1939, as amended;
3. Appropriate orders authorizing the issuance of the
Debentures by the Company shall have been entered by the
Idaho Public Utilities Commission, the Montana Public
Service Commission, the Public Utility Commission of Oregon,
the Utah Public Service Commission and the Public Service
Commission of Wyoming 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
Debentures, fixing certain of the terms thereof, authorizing
the execution and delivery of one or more supplemental
indentures with respect to the Debentures, authorizing the
execution and delivery of the Debentures and authorizing or
ratifying such other corporate acts as may be necessary in
connection with the issuance and sale of the Debentures;
5. One or more supplemental indentures with respect to the
Debentures shall have been duly executed and delivered; and
6. The Debentures shall have been appropriately issued,
authenticated and delivered for the consideration
contemplated by, and otherwise
<PAGE>
May 8, 1996
Page 3
in conformity with, the acts, proceedings and documents referred to
above.
(b) When the steps set forth in paragraph (a) shall have been taken,
the Debentures will be legal, valid and binding obligations of
the Company enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or other laws limiting creditors' rights generally
or by equitable principles relating to the availability of
remedies; provided, however, that in rendering the above opinion,
we express no opinion as to the effect, if any, of the usury laws
of any state upon the enforceability of rights of the holders of
the Debentures.
(c) All action necessary to make valid the proposed issuance by the
Company of the Guarantees shall have been taken when:
1. The steps set forth in paragraph (a) above have been taken;
2. The Preferred Securities shall have been duly issued;
3. The Guarantees shall have been qualified under the Trust
Indenture Act of 1939, as amended;
4. Appropriate orders authorizing the Company to enter into the
Guarantees 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;
5. The Finance Committee or the Pricing Committee of the Board
of Directors of the Company shall have approved the terms of
the Guarantees in accordance with the resolutions adopted by
the Company's Board of Directors authorizing the execution
and delivery by the Company of the Guarantees; and
6. The Guarantees shall have been duly executed and delivered
in conformity with the acts, proceedings and documents
referred to above.
<PAGE>
May 8, 1996
Page 4
(d) When the steps set forth in paragraph (c) shall have been taken,
the Guarantees will be the 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.
We hereby authorize and consent to the use of this opinion as Exhibit
5(a) of the Registration Statement and authorize and consent to the
references to our firm in the Registration Statement and in the preliminary
Prospectus and the preliminary Prospectus Supplement constituting a part
thereof. In giving such consent, we do not thereby admit that we are within
the category of persons whose consent is required pursuant to Section 7 of
the Act or the rules and regulations of the Securities and Exchange
Commission.
Very truly yours,
STOEL RIVES LLP
[Letterhead of Richards, Layton & Finger]
May 8, 1996
PacifiCorp Capital I
c/o PacifiCorp
700 NE Multnomah, Suite 1600
Portland, Oregon 97232
Re: PacifiCorp Capital I
--------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for PacifiCorp, an
Oregon corporation (the "Company"), and PacifiCorp Capital I, a Delaware
business trust (the "Trust"), in connection with the matters set forth
herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals
or copies of the following:
(a) The Certificate of Trust of the Trust, dated May 3, 1996 (the
"Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on May 7, 1996;
(b) The Trust Agreement of the Trust, dated as of May 3, 1996,
among the Company, as Depositor, and the trustees of the Trust named
therein;
(c) The Registration Statement (the "Registration Statement") on
Form S-3, including a preliminary prospectus (the "Prospectus") and
preliminary prospectus supplement (the "Prospectus Supplement"), relating
to the __% Cumulative Quarterly Income Preferred Securities, Series A, of
the Trust representing preferred
<PAGE>
PacifiCorp Capital I
May 8, 1996
Page 2
undivided beneficial interests in the assets of the Trust (each, a
"Preferred Security" and collectively, the "Preferred Securities"), as
proposed to be filed by the Company, the Trust and others as set forth
therein with the Securities and Exchange Commission on or about May 8,
1996;
(d) A form of Amended and Restated Trust Agreement of the Trust,
to be entered into among the Company, as Depositor, the trustees of the
Trust named therein, and the holders, from time to time, of undivided
beneficial interests in the assets of the Trust (including Exhibits A, C
and E thereto) (the "Trust Agreement"), attached as an exhibit to the
Registration Statement; and
(e) A Certificate of Good Standing for the Trust, dated May 8,
1996, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined
are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents
other than the documents listed in paragraphs (a) through (e) above. In
particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have
assumed that there exists no provision in any document that we have not
reviewed that is inconsistent with the opinions stated herein. We have
conducted no independent factual investigation of our own but rather have
relied solely upon the foregoing documents, the statements and information
set forth therein and the additional matters recited or assumed herein, all
of which we have assumed to be true, complete and accurate in all material
respects.
With respect to all documents examined by us, we have assumed (i)
the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement and the Certificate are in full force and effect and have not
been amended, (ii) except to the extent provided in paragraph 1 below, the
due creation or due organization or due formation, as the case may be, and
valid existence in good standing of each party to the documents examined by
us under the laws of the jurisdiction governing its creation, organization
or formation, (iii) the legal capacity of natural persons who are parties
to the documents examined by us, (iv) that each of the parties to the
documents examined by us has the power and authority to execute and
deliver,
<PAGE>
PacifiCorp Capital I
May 8, 1996
Page 3
and to perform its obligations under, such documents, (v) the due
authorization, execution and delivery by all parties thereto of all
documents examined by us, (vi) the receipt by each Person to whom a
Preferred Security is to be issued by the Trust (collectively, the
"Preferred Security Holders") of a Preferred Securities Certificate for
such Preferred Security and the payment for the Preferred Security acquired
by it, in accordance with the Trust Agreement and the Registration
Statement, and (vii) that the Preferred Securities are issued and sold to
the Preferred Security Holders in accordance with the Trust Agreement and
the Registration Statement. We have not participated in the preparation of
the Registration Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our
opinions are rendered only with respect to Delaware laws and rules,
regulations and orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have
considered necessary or appropriate, and subject to the assumptions,
qualifications, limitations and exceptions set forth herein, we are of the
opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject to
the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under
the General Corporation Law of the State of Delaware. We note that the
Preferred Security Holders may be obligated to make payments as set forth
in the Trust Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading "Legal
Opinions" in the Prospectus and the Prospectus Supplement. In giving the
foregoing consents, we do not thereby admit that we come within the
category of Persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations of the
<PAGE>
PacifiCorp Capital I
May 8, 1996
Page 4
Securities and Exchange Commission thereunder. Except as stated above,
without our prior written consent, this opinion may not be furnished or
quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
RICHARDS, LAYTON & FINGER
PMA/BJK/ds
[Letterhead of Richards, Layton & Finger]
May 8, 1996
PacifiCorp Capital II
c/o PacifiCorp
700 NE Multnomah, Suite 1600
Portland, Oregon 97232
Re: PacifiCorp Capital II
---------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for PacifiCorp, an
Oregon corporation (the "Company"), and PacifiCorp Capital II, a Delaware
business trust (the "Trust"), in connection with the matters set forth
herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals
or copies of the following:
(a) The Certificate of Trust of the Trust, dated May 3, 1996 (the
"Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on May 7, 1996;
(b) The Trust Agreement of the Trust, dated as of May 3, 1996,
among the Company, as Depositor, and the trustees of the Trust named
therein;
(c) The Registration Statement (the "Registration Statement") on
Form S-3, including a preliminary prospectus (the "Prospectus"), relating
to the __% Cumulative Quarterly Income Preferred Securities of the Trust
representing preferred
<PAGE>
PacifiCorp Capital II
May 8, 1996
Page 2
undivided beneficial interests in the assets of the Trust (each, a
"Preferred Security" and collectively, the "Preferred Securities"), as
proposed to be filed by the Company, the Trust and others as set forth
therein with the Securities and Exchange Commission on or about May 8,
1996;
(d) A form of Amended and Restated Trust Agreement of the Trust,
to be entered into among the Company, as Depositor, the trustees of the
Trust named therein, and the holders, from time to time, of undivided
beneficial interests in the assets of the Trust (including Exhibits A, C
and E thereto) (the "Trust Agreement"), attached as an exhibit to the
Registration Statement; and
(e) A Certificate of Good Standing for the Trust, dated May 8,
1996, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined
are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents
other than the documents listed in paragraphs (a) through (e) above. In
particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have
assumed that there exists no provision in any document that we have not
reviewed that is inconsistent with the opinions stated herein. We have
conducted no independent factual investigation of our own but rather have
relied solely upon the foregoing documents, the statements and information
set forth therein and the additional matters recited or assumed herein, all
of which we have assumed to be true, complete and accurate in all material
respects.
With respect to all documents examined by us, we have assumed (i)
the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement and the Certificate are in full force and effect and have not
been amended, (ii) except to the extent provided in paragraph 1 below, the
due creation or due organization or due formation, as the case may be, and
valid existence in good standing of each party to the documents examined by
us under the laws of the jurisdiction governing its creation, organization
or formation, (iii) the legal capacity of natural persons who are parties
to the documents examined by us, (iv) that each of the parties to the
documents examined by us has the power and authority to execute and
deliver,
<PAGE>
PacifiCorp Capital II
May 8, 1996
Page 3
and to perform its obligations under, such documents, (v) the due
authorization, execution and delivery by all parties thereto of all
documents examined by us, (vi) the receipt by each Person to whom a
Preferred Security is to be issued by the Trust (collectively, the
"Preferred Security Holders") of a Preferred Securities Certificate for
such Preferred Security and the payment for the Preferred Security acquired
by it, in accordance with the Trust Agreement and the Registration
Statement, and (vii) that the Preferred Securities are issued and sold to
the Preferred Security Holders in accordance with the Trust Agreement and
the Registration Statement. We have not participated in the preparation of
the Registration Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our
opinions are rendered only with respect to Delaware laws and rules,
regulations and orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have
considered necessary or appropriate, and subject to the assumptions,
qualifications, limitations and exceptions set forth herein, we are of the
opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject to
the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under
the General Corporation Law of the State of Delaware. We note that the
Preferred Security Holders may be obligated to make payments as set forth
in the Trust Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading "Legal
Opinions" in the Prospectus. In giving the foregoing consents, we do not
thereby admit that we come within the category of Persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the
rules and regulations of the Securities and Exchange
<PAGE>
PacifiCorp Capital II
May 8, 1996
Page 4
Commission thereunder. Except as stated above, without our prior written
consent, this opinion may not be furnished or quoted to, or relied upon by,
any other Person for any purpose.
Very truly yours,
RICHARDS, LAYTON & FINGER
PMA/BJK/ds
STOEL RIVES LLP
---------------
ATTORNEYS
Port of Portland Building
700 NE Multnomah, Suite 950
Portland, Oregon 97232-4109
Telephone (503) 294-9100 Fax (503) 230-1907
Internet:www.stoel.com
May 8, 1996
PacifiCorp
Suite 1600
700 NE Multnomah
Portland, OR 97232
We have acted as counsel for you and for PacifiCorp Capital I and
PacifiCorp Capital II, each a statutory business trust created under the
laws of the State of Delaware (each, a "PacifiCorp Capital Trust"), in
connection with preparation of a Registration Statement on Form S-3 (the
"Registration Statement") about to be filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the "1933
Act"), relating to the public offering of up to $250,000,000 in the
aggregate of (i) debt securities representing junior unsecured deferrable
interest subordinated obligations of PacifiCorp, to be issued pursuant to
an Indenture dated as of May 1, 1995 between PacifiCorp and The Bank of New
York as trustee, (the "Junior Subordinated Debentures") and (ii) preferred
securities representing preferred undivided beneficial interests in the
assets of the respective PacifiCorp Capital Trusts. The proceeds of the
offering of preferred securities by a PacifiCorp Capital Trust may be
loaned to PacifiCorp (together with proceeds from issuance of common
securities in that PacifiCorp Capital Trust), and the loan may be evidenced
by Junior Subordinated Debentures. In addition, certain payment obligations
of a PacifiCorp Capital Trust with respect to the preferred securities will
be guaranteed by PacifiCorp to the extent set forth in a subordinated
guarantee.
In so acting, we have reviewed (i) the original Trust Agreement of
PacifiCorp Capital I and PacifiCorp Capital II, each dated as of May 3,
1996, and (ii) the form of the Amended and Restated Trust Agreement for the
PacifiCorp Capital Trusts (the "Amended Trust Agreement"), dated as of May
___, 1996. Our opinion is based upon the Internal Revenue Code of 1986, as
amended, and Treasury Regulations promulgated thereunder, administrative
pronouncements by the Internal Revenue Service, judicial decisions, and
such other legal authorities as we have deemed necessary or appropriate for
purposes of our opinion, as each exists on the date of this letter.
Existing tax laws may be changed by legislation or promulgation of
regulations or may be
<PAGE>
PacifiCorp
May 8, 1996
Page 2
interpreted differently than they are at present by the courts or the
Internal Revenue Service, and such changes may alter the conclusions set
forth in this letter.
In connection with issuance pursuant to the Registration Statement
of the preferred securities of the PacifiCorp Capital Trusts (the
"Preferred Securities"), you have requested that we render the opinion set
forth below. In rendering our opinion, we have examined and relied upon
representations and warranties as to factual matters made in or pursuant to
the documents referred to above and upon the originals, or copies certified
or otherwise identified to our satisfaction, of such records, documents,
certificates or other instruments as in our judgment are necessary or
appropriate to enable us to render the opinion expressed below. We have
not, however, undertaken any independent investigation of any factual
matter set forth in any of the foregoing. We also have assumed that the
Amended Trust Agreement will be duly executed and delivered substantially
in the form of Exhibit 4(i) to the Registration Statement, that the Amended
Trust Agreement will be valid and enforceable in accordance with its terms
and that the PacifiCorp Capital Trusts will at all times comply with the
Delaware Business Trust Act and the terms of the Amended Trust Agreement.
Our opinion addresses only the United States federal income tax
considerations of general application relevant to a beneficial owner
acquiring Preferred Securities upon original issue at the original offering
price that is (i) an individual citizen or resident of the United States,
(ii) a corporation or partnership created or organized in or under the laws
of the United States or any state thereof or the District of Columbia or
(iii) an estate or trust treated as a United States person for federal
income tax purposes.
Subject to the foregoing and to the qualifications and limitations
set forth herein, the statements relating to issuance of the Preferred
Securities set forth in the Prospectus Supplement, subject to completion,
dated May ___, 1996 (the "Prospectus Supplement"), under the caption
"Certain Federal Income Tax Considerations," to the extent they relate to
matters of law or legal conclusion, constitute our opinion.
Our opinion is limited to the United States federal income tax
matters addressed, and no opinion is rendered as to any other issue. In
addition, our conclusions are based upon United States federal income tax
law currently in effect, which is subject to change on a prospective or
retroactive basis, representations concerning relevant facts that exist as
of the date hereof and the assumptions described above. If any assumption
or representation described above is not true, correct and complete, or in
the event of a change in United States federal income tax law
<PAGE>
PacifiCorp
May 8, 1996
Page 3
adversely affecting the conclusions set forth in this letter or in the
Prospectus Supplement under "Certain Federal Income Tax Considerations,"
our opinion shall be void and of no force or effect. We undertake no
obligation to update our opinion at any time. Our opinion is not binding on
the courts or on any administrative agency, and a court or agency may hold
or act to the contrary.
This opinion is addressed solely to you, and no other person may
rely on it, provided, however, that we hereby consent to the filing of this
opinion as an exhibit to the Registration Statement and to the use of our
name under the captions "Certain Federal Income Tax Considerations" and
"Legal Opinions" in the Prospectus Supplement. In giving such consent, we
do not thereby concede that we are within the category of persons whose
consent is required under Section 7 of the 1933 Act or the Rules and
Regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
STOEL RIVES 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 headings "Selected Financial
Information" and "Experts" in the Prospectus, which is part of this
Registration Statement.
DELOITTE & TOUCHE LLP
May 8, 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 $250,000,000 of securities of
PacifiCorp in the form of subordinated debt and/or guarantees with respect
to preferred securities of one or more of its subsidiaries, 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: May 8, 1996.
KATHRYN A. BRAUN
-----------------------------------
Kathyrn 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 $250,000,000 of securities of
PacifiCorp in the form of subordinated debt and/or guarantees with respect
to preferred securities of one or more of its subsidiaries, 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: May 8, 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 $250,000,000 of securities of
PacifiCorp in the form of subordinated debt and/or guarantees with respect
to preferred securities of one or more of its subsidiaries, 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: May 8, 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 $250,000,000 of securities of
PacifiCorp in the form of subordinated debt and/or guarantees with respect
to preferred securities of one or more of its subsidiaries, 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: May 8, 1996.
RICHARD C. EDGLEY
-----------------------------------
Richard C. Edgley
<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 $250,000,000 of securities of
PacifiCorp in the form of subordinated debt and/or guarantees with respect
to preferred securities of one or more of its subsidiaries, 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: May 8, 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 $250,000,000 of securities of
PacifiCorp in the form of subordinated debt and/or guarantees with respect
to preferred securities of one or more of its subsidiaries, 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: May 8, 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 $250,000,000 of securities of
PacifiCorp in the form of subordinated debt and/or guarantees with respect
to preferred securities of one or more of its subsidiaries, 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: May 8, 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 $250,000,000 of securities of
PacifiCorp in the form of subordinated debt and/or guarantees with respect
to preferred securities of one or more of its subsidiaries, 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: May 8, 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 $250,000,000 of securities of
PacifiCorp in the form of subordinated debt and/or guarantees with respect
to preferred securities of one or more of its subsidiaries, 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: May 8, 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 $250,000,000 of securities of
PacifiCorp in the form of subordinated debt and/or guarantees with respect
to preferred securities of one or more of its subsidiaries, 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: May 8, 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 $250,000,000 of securities of
PacifiCorp in the form of subordinated debt and/or guarantees with respect
to preferred securities of one or more of its subsidiaries, 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: May 8, 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 $250,000,000 of securities of
PacifiCorp in the form of subordinated debt and/or guarantees with respect
to preferred securities of one or more of its subsidiaries, 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: May 8, 1996.
RICHARD T. O'BRIEN
-----------------------------------
Richard T. O'Brien
Exhibit 25(a)
================================================================================
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
(Address of principal executive offices) (Zip code)
----------------------
Junior Subordinated Deferrable Interest Debentures
(Title of the indenture securities)
================================================================================
<PAGE>
1. General information. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of 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.)
-2-
<PAGE>
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.
-3-
<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 1st day of May, 1996.
THE BANK OF NEW YORK
By: ROBERT F. MCINTYRE
-------------------------------
Name: ROBERT F. MCINTYRE
Title: VICE PRESIDENT
-4-
<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 December
31, 1995, published in accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions of the Federal Reserve
Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin............ $ 4,500,312
Interest-bearing balances .................................... 643,938
Securities:
Held-to-maturity securities .................................. 806,221
Available-for-sale securities ................................ 2,036,768
Federal funds sold and securities purchased under
agreements to resell in domestic offices of the bank:
Federal funds sold ............................................. 4,166,720
Securities purchased under agreements to resell................. 50,413
Loans and lease financing receivables:
Loans and leases, net of unearned income...........27,068,535
LESS: Allowance for loan and lease losses ......... 520,024
LESS: Allocated transfer risk reserve.............. 1,000
Loans and leases, net of unearned income and allowance,
and reserve 26,547,511
Assets held in trading accounts................................. 758,462
Premises and fixed assets (including capitalized leases) ....... 615,330
Other real estate owned ........................................ 63,769
Investments in unconsolidated subsidiaries and associated
companies..................................................... 223,174
Customers' liability to this bank on acceptances outstanding ... 900,795
Intangible assets............................................... 212,220
Other assets.................................................... 1,186,274
-----------
Total assets.................................................... $42,711,907
===========
LIABILITIES
Deposits:
In domestic offices...............................$21,248,127
Noninterest-bearing............................... 9,172,079
Interest-bearing.................................. 12,076,048
In foreign offices, Edge and Agreement subsidiaries,
and IBFs..........................................9,535,088
Noninterest-bearing................................. 64,417
Interest-bearing....................................9,470,671
Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of its
Edge and Agreement subsidiaries, and in IBFs:
Federal funds purchased....................................... 2,095,668
Securities sold under agreements to repurchase................ 69,212
Demand notes issued to the U.S. Treasury........................ 107,340
Trading liabilities............................................. 615,718
Other borrowed money:
With original maturity of one year or less.................... 1,638,744
With original maturity of more than one year.................. 120,863
Bank's liability on acceptances executed and outstanding........ 909,527
Subordinated notes and debentures............................... 1,047,860
Other liabilities............................................... 1,836,573
-----------
Total liabilities............................................... 39,224,720
-----------
EQUITY CAPITAL
Common stock.................................................... 942,284
Surplus......................................................... 525,666
Undivided profits and capital reserves.......................... 1,995,316
Net unrealized holding gains (losses) on available-for-sale
securities.................................................... 29,668
Cumulative foreign currency translation adjustments............. ( 5,747)
-----------
Total equity capital............................................ 3,487,187
-----------
Total liabilities and equity capital............................ $42,711,907
===========
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 |
Exhibit 25(b)
================================================================================
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 CAPITAL I
(Exact name of obligor as specified in its charter)
Delaware To be applied for
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
700 NE Multnomah, Suite 1600
Portland, Oregon 97232
(Address of principal executive offices) (Zip code)
----------------------
Guarantee of Preferred 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.)
-2-
<PAGE>
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.
-3-
<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 1st day of May, 1996.
THE BANK OF NEW YORK
By: LLOYD A. MCKENZIE
-------------------------------
Name: LLOYD A. MCKENZIE
Title: ASSISTANT VICE PRESIDENT
-4-
<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 December
31, 1995, published in accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions of the Federal Reserve
Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin............ $ 4,500,312
Interest-bearing balances .................................... 643,938
Securities:
Held-to-maturity securities .................................. 806,221
Available-for-sale securities ................................ 2,036,768
Federal funds sold and securities purchased under
agreements to resell in domestic offices of the bank:
Federal funds sold ............................................. 4,166,720
Securities purchased under agreements to resell................. 50,413
Loans and lease financing receivables:
Loans and leases, net of unearned income...........27,068,535
LESS: Allowance for loan and lease losses ......... 520,024
LESS: Allocated transfer risk reserve.............. 1,000
Loans and leases, net of unearned income and allowance,
and reserve 26,547,511
Assets held in trading accounts................................. 758,462
Premises and fixed assets (including capitalized leases) ....... 615,330
Other real estate owned ........................................ 63,769
Investments in unconsolidated subsidiaries and associated
companies..................................................... 223,174
Customers' liability to this bank on acceptances outstanding ... 900,795
Intangible assets............................................... 212,220
Other assets.................................................... 1,186,274
-----------
Total assets.................................................... $42,711,907
===========
LIABILITIES
Deposits:
In domestic offices...............................$21,248,127
Noninterest-bearing............................... 9,172,079
Interest-bearing.................................. 12,076,048
In foreign offices, Edge and Agreement subsidiaries,
and IBFs..........................................9,535,088
Noninterest-bearing................................. 64,417
Interest-bearing....................................9,470,671
Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of its
Edge and Agreement subsidiaries, and in IBFs:
Federal funds purchased....................................... 2,095,668
Securities sold under agreements to repurchase................ 69,212
Demand notes issued to the U.S. Treasury........................ 107,340
Trading liabilities............................................. 615,718
Other borrowed money:
With original maturity of one year or less.................... 1,638,744
With original maturity of more than one year.................. 120,863
Bank's liability on acceptances executed and outstanding........ 909,527
Subordinated notes and debentures............................... 1,047,860
Other liabilities............................................... 1,836,573
-----------
Total liabilities............................................... 39,224,720
-----------
EQUITY CAPITAL
Common stock.................................................... 942,284
Surplus......................................................... 525,666
Undivided profits and capital reserves.......................... 1,995,316
Net unrealized holding gains (losses) on available-for-sale
securities.................................................... 29,668
Cumulative foreign currency translation adjustments............. ( 5,747)
-----------
Total equity capital............................................ 3,487,187
-----------
Total liabilities and equity capital............................ $42,711,907
===========
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 |
Exhibit 25(c)
================================================================================
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 CAPITAL I
(Exact name of obligor as specified in its charter)
Delaware To be applied for
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
700 NE Multnomah, Suite 1600
Portland, Oregon 97232
(Address of principal executive offices) (Zip code)
----------------------
Preferred 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.)
-2-
<PAGE>
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.
-3-
<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 1st day of May, 1996.
THE BANK OF NEW YORK
By: ROBERT F. MCINTYRE
-------------------------------
Name: ROBERT F. MCINTYRE
Title: VICE PRESIDENT
-4-
<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 December
31, 1995, published in accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions of the Federal Reserve
Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin............ $ 4,500,312
Interest-bearing balances .................................... 643,938
Securities:
Held-to-maturity securities .................................. 806,221
Available-for-sale securities ................................ 2,036,768
Federal funds sold and securities purchased under
agreements to resell in domestic offices of the bank:
Federal funds sold ............................................. 4,166,720
Securities purchased under agreements to resell................. 50,413
Loans and lease financing receivables:
Loans and leases, net of unearned income...........27,068,535
LESS: Allowance for loan and lease losses ......... 520,024
LESS: Allocated transfer risk reserve.............. 1,000
Loans and leases, net of unearned income and allowance,
and reserve 26,547,511
Assets held in trading accounts................................. 758,462
Premises and fixed assets (including capitalized leases) ....... 615,330
Other real estate owned ........................................ 63,769
Investments in unconsolidated subsidiaries and associated
companies..................................................... 223,174
Customers' liability to this bank on acceptances outstanding ... 900,795
Intangible assets............................................... 212,220
Other assets.................................................... 1,186,274
-----------
Total assets.................................................... $42,711,907
===========
LIABILITIES
Deposits:
In domestic offices...............................$21,248,127
Noninterest-bearing............................... 9,172,079
Interest-bearing.................................. 12,076,048
In foreign offices, Edge and Agreement subsidiaries,
and IBFs..........................................9,535,088
Noninterest-bearing................................. 64,417
Interest-bearing....................................9,470,671
Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of its
Edge and Agreement subsidiaries, and in IBFs:
Federal funds purchased....................................... 2,095,668
Securities sold under agreements to repurchase................ 69,212
Demand notes issued to the U.S. Treasury........................ 107,340
Trading liabilities............................................. 615,718
Other borrowed money:
With original maturity of one year or less.................... 1,638,744
With original maturity of more than one year.................. 120,863
Bank's liability on acceptances executed and outstanding........ 909,527
Subordinated notes and debentures............................... 1,047,860
Other liabilities............................................... 1,836,573
-----------
Total liabilities............................................... 39,224,720
-----------
EQUITY CAPITAL
Common stock.................................................... 942,284
Surplus......................................................... 525,666
Undivided profits and capital reserves.......................... 1,995,316
Net unrealized holding gains (losses) on available-for-sale
securities.................................................... 29,668
Cumulative foreign currency translation adjustments............. ( 5,747)
-----------
Total equity capital............................................ 3,487,187
-----------
Total liabilities and equity capital............................ $42,711,907
===========
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 |
Exhibit 25(d)
================================================================================
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 CAPITAL II
(Exact name of obligor as specified in its charter)
Delaware To be applied for
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
700 NE Multnomah, Suite 1600
Portland, Oregon 97232
(Address of principal executive offices) (Zip code)
----------------------
Guarantee of Preferred 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.)
-2-
<PAGE>
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.
-3-
<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 1st day of May, 1996.
THE BANK OF NEW YORK
By: PAUL J. SCHMALZEL
-------------------------------
Name: PAUL J. SCHMALZEL
Title: ASSISTANT TREASURER
-4-
<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 December
31, 1995, published in accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions of the Federal Reserve
Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin............ $ 4,500,312
Interest-bearing balances .................................... 643,938
Securities:
Held-to-maturity securities .................................. 806,221
Available-for-sale securities ................................ 2,036,768
Federal funds sold and securities purchased under
agreements to resell in domestic offices of the bank:
Federal funds sold ............................................. 4,166,720
Securities purchased under agreements to resell................. 50,413
Loans and lease financing receivables:
Loans and leases, net of unearned income...........27,068,535
LESS: Allowance for loan and lease losses ......... 520,024
LESS: Allocated transfer risk reserve.............. 1,000
Loans and leases, net of unearned income and allowance,
and reserve 26,547,511
Assets held in trading accounts................................. 758,462
Premises and fixed assets (including capitalized leases) ....... 615,330
Other real estate owned ........................................ 63,769
Investments in unconsolidated subsidiaries and associated
companies..................................................... 223,174
Customers' liability to this bank on acceptances outstanding ... 900,795
Intangible assets............................................... 212,220
Other assets.................................................... 1,186,274
-----------
Total assets.................................................... $42,711,907
===========
LIABILITIES
Deposits:
In domestic offices...............................$21,248,127
Noninterest-bearing............................... 9,172,079
Interest-bearing.................................. 12,076,048
In foreign offices, Edge and Agreement subsidiaries,
and IBFs..........................................9,535,088
Noninterest-bearing................................. 64,417
Interest-bearing....................................9,470,671
Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of its
Edge and Agreement subsidiaries, and in IBFs:
Federal funds purchased....................................... 2,095,668
Securities sold under agreements to repurchase................ 69,212
Demand notes issued to the U.S. Treasury........................ 107,340
Trading liabilities............................................. 615,718
Other borrowed money:
With original maturity of one year or less.................... 1,638,744
With original maturity of more than one year.................. 120,863
Bank's liability on acceptances executed and outstanding........ 909,527
Subordinated notes and debentures............................... 1,047,860
Other liabilities............................................... 1,836,573
-----------
Total liabilities............................................... 39,224,720
-----------
EQUITY CAPITAL
Common stock.................................................... 942,284
Surplus......................................................... 525,666
Undivided profits and capital reserves.......................... 1,995,316
Net unrealized holding gains (losses) on available-for-sale
securities.................................................... 29,668
Cumulative foreign currency translation adjustments............. ( 5,747)
-----------
Total equity capital............................................ 3,487,187
-----------
Total liabilities and equity capital............................ $42,711,907
===========
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 |
Exhibit 25(e)
================================================================================
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 CAPITAL II
(Exact name of obligor as specified in its charter)
Delaware To be applied for
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
700 NE Multnomah, Suite 1600
Portland, Oregon 97232
(Address of principal executive offices) (Zip code)
----------------------
Preferred 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.)
-2-
<PAGE>
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.
-3-
<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 1st day of May, 1996.
THE BANK OF NEW YORK
By: LLOYD A. MCKENZIE
-------------------------------
Name: LLOYD A. MCKENZIE
Title: ASSISTANT VICE PRESIDENT
-4-
<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 December
31, 1995, published in accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions of the Federal Reserve
Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin............ $ 4,500,312
Interest-bearing balances .................................... 643,938
Securities:
Held-to-maturity securities .................................. 806,221
Available-for-sale securities ................................ 2,036,768
Federal funds sold and securities purchased under
agreements to resell in domestic offices of the bank:
Federal funds sold ............................................. 4,166,720
Securities purchased under agreements to resell................. 50,413
Loans and lease financing receivables:
Loans and leases, net of unearned income...........27,068,535
LESS: Allowance for loan and lease losses ......... 520,024
LESS: Allocated transfer risk reserve.............. 1,000
Loans and leases, net of unearned income and allowance,
and reserve 26,547,511
Assets held in trading accounts................................. 758,462
Premises and fixed assets (including capitalized leases) ....... 615,330
Other real estate owned ........................................ 63,769
Investments in unconsolidated subsidiaries and associated
companies..................................................... 223,174
Customers' liability to this bank on acceptances outstanding ... 900,795
Intangible assets............................................... 212,220
Other assets.................................................... 1,186,274
-----------
Total assets.................................................... $42,711,907
===========
LIABILITIES
Deposits:
In domestic offices...............................$21,248,127
Noninterest-bearing............................... 9,172,079
Interest-bearing.................................. 12,076,048
In foreign offices, Edge and Agreement subsidiaries,
and IBFs..........................................9,535,088
Noninterest-bearing................................. 64,417
Interest-bearing....................................9,470,671
Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of its
Edge and Agreement subsidiaries, and in IBFs:
Federal funds purchased....................................... 2,095,668
Securities sold under agreements to repurchase................ 69,212
Demand notes issued to the U.S. Treasury........................ 107,340
Trading liabilities............................................. 615,718
Other borrowed money:
With original maturity of one year or less.................... 1,638,744
With original maturity of more than one year.................. 120,863
Bank's liability on acceptances executed and outstanding........ 909,527
Subordinated notes and debentures............................... 1,047,860
Other liabilities............................................... 1,836,573
-----------
Total liabilities............................................... 39,224,720
-----------
EQUITY CAPITAL
Common stock.................................................... 942,284
Surplus......................................................... 525,666
Undivided profits and capital reserves.......................... 1,995,316
Net unrealized holding gains (losses) on available-for-sale
securities.................................................... 29,668
Cumulative foreign currency translation adjustments............. ( 5,747)
-----------
Total equity capital............................................ 3,487,187
-----------
Total liabilities and equity capital............................ $42,711,907
===========
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 |
