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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 30, 1999
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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PORTLAND GENERAL ELECTRIC COMPANY
(Exact name of registrant as specified in its charter)
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OREGON 93-0256820
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
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121 SW SALMON STREET
PORTLAND, OREGON 97204
(503) 464-8000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
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ALVIN ALEXANDERSON Copy to:
GENERAL COUNSEL GARY ORLOFF
PORTLAND GENERAL ELECTRIC COMPANY BRACEWELL & PATTERSON, L.L.P.
17TH FLOOR, ONE WORLD TRADE CENTER 711 LOUISIANA STREET, SUITE 2900
121 SW SALMON STREET HOUSTON, TX 77002-2781
PORTLAND OR 97204
(503) 464-7401
(Name, address including zip code, and
telephone number including area code, of
agent for service)
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: After the
effective date of the Registration Statement as determined by market conditions
and other factors.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of this prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE FEE
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Debt Securities.......... $200,000,000(1) 100%(2) $200,000,000(1) $55,600.00(3)
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(1) In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this registration statement exceed
$200,000,000. If any of the securities are issued at an original issue
discount, the aggregate initial offering price as so discounted will not
exceed $200,000,000, even though the stated principal amount of the
securities may exceed that amount.
(2) The proposed maximum initial offering price per unit will be determined from
time to time in connection with the issuance of the securities registered
hereunder.
(3) Estimated pursuant to Rule 457(o), solely for the purpose of calculating the
Registration Fee.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED APRIL 30, 1999
[PGE LOGO]
PORTLAND GENERAL ELECTRIC COMPANY
121 S.W. SALMON STREET
PORTLAND, OREGON 97204
(503) 464-8000
BY THIS PROSPECTUS, WE OFFER UP TO
$200,000,000
OF
DEBT SECURITIES
which may be
- secured first mortgage bonds, including
secured medium term notes, or
- unsecured debt securities
We will provide specific terms of these securities in supplements to this
prospectus. This prospectus may not be used to consummate sales of these
securities unless accompanied by a prospectus supplement. You should read this
prospectus and the supplements carefully before you invest.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
THE DATE OF THIS PROSPECTUS IS
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TABLE OF CONTENTS
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Where You Can Find More Information......................... 2
Forward-Looking Statements.................................. 3
Portland General Electric Company........................... 3
Use of Proceeds............................................. 3
Ratio of Earnings to Fixed Charges.......................... 3
Description of Debt Securities.............................. 4
Plan of Distribution........................................ 13
Validity of Securities...................................... 14
Experts..................................................... 14
</TABLE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission. Our SEC filings are
available to the public over the Internet at the SEC's web site at
http://www.sec.gov. You may also read and copy any document we file at the SEC's
public reference rooms in Washington, D.C., New York, New York and Chicago,
Illinois. Please call the SEC at 1-800-SEC-0330 for further information on the
public reference rooms. Reports, proxy statements and other information
concerning Portland General Electric Company can also be inspected and copied at
the offices of the New York Stock Exchange at 20 Broad Street, New York, New
York 10005.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you be
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934
until we sell all of the securities.
- Annual Report on Form 10-K for the fiscal year ended December 31, 1998.
You may request a copy of these filings at no cost by writing or
telephoning us at the following address:
William J. Valach
Assistant Treasurer
Portland General Electric Company
121 S.W. Salmon Street
Portland, Oregon 97204
Telephone: (503) 464-7395
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of these securities in any state where the offer is not permitted. You
should not assume that the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the front of those
documents.
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FORWARD-LOOKING STATEMENTS
The statements in this document and the documents incorporated by reference
that relate to matters that are not historical facts are "forward-looking
statements" within the meaning of Section 27A of the Securities Act of 1933 and
Section 21E of the Securities Exchange Act of 1934. When used in this document
and the documents incorporated by reference, words such as "anticipate,"
"believe," "expect," "plan," "intend," "estimate," "project," "will," "could,"
"may," "predict," and similar expressions are intended to identify
forward-looking statements. Future events and actual results may differ
materially from the results set forth in or implied in the forward-looking
statements. Factors that might cause such a difference include:
- fluctuations in local and regional prices and demand for electricity;
- the existence of competitors, technological changes and developments in
the electric power industry;
- the existence of operating risks inherent in the electric power industry;
- the existence of regulatory uncertainties with respect to our electric
power business; and
- year 2000 issues and general economic conditions.
PORTLAND GENERAL ELECTRIC COMPANY
Portland General Electric Company is an electric utility engaged in the
generation, purchase, transmission, distribution and sale of electricity
primarily in the State of Oregon. Our service area is 3,170 square miles,
including 54 incorporated cities of which Portland and Salem are the largest,
within a State approved service area allocation of 4,070 square miles. A portion
of the City of Portland is serviced by another Oregon utility. We estimate that
the population of our service area at December 31, 1998 was approximately 1.5
million, constituting approximately 44% of the State's population. At December
31, 1998, we served more than 704,000 customers.
We are a wholly owned subsidiary of Enron Corp. and subject to control by
the Board of Directors of Enron. We were incorporated in Oregon in 1930. Our
principal offices are located at 121 S.W. Salmon Street, Portland, Oregon 97204.
Our telephone number is 503/464-8000. In this prospectus, Portland General
Electric Company is sometimes referred to as "Portland General" or "PGE."
USE OF PROCEEDS
The net proceeds from the sale of the offered securities will be used by us
for refunding fixed and variable rate securities, reducing short-term debt and
other corporate purposes, including our construction program. Other uses may be
stated in a prospectus supplement.
RATIO OF EARNINGS TO FIXED CHARGES
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YEARS ENDED DECEMBER 31,
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1998 1997 1996 1995 1994
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Ratio of Earnings to Fixed Charges (unaudited).......... 3.41 3.15 3.91 2.64 3.14
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The ratios of earnings to fixed charges are based on continuing operations.
"Earnings" is determined by adding:
- the pre-tax income of Portland General Electric Company and its majority
owned subsidiaries,
- Portland General's share of pre-tax income of its 50% owned companies,
- any income actually received from less than 50% owned companies, and
- fixed charges, net of interest capitalized.
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"Fixed charges" represent (1) interest (whether expensed or capitalized), (2)
amortization of debt discount and expense (including amounts capitalized), and
(3) that portion of rentals considered to be representative of the interest
factor.
DESCRIPTION OF DEBT SECURITIES
The following description highlights the general terms and provisions of
the debt securities which may be offered and to which any prospectus supplement
may relate. When debt securities are offered in the future, the prospectus
supplement will explain the particular terms of those securities and the extent
to which these general provisions may apply.
We may offer debt securities which are secured or unsecured obligations.
Secured obligations will be issued under the Indenture of Mortgage and Deed of
Trust, dated July 1, 1945, between Portland General Electric Company and The
Marine Midland Trust Company of New York (now HSBC Bank USA), as Trustee, as
supplemented. These secured obligations may be either "First Mortgage Bonds" or
"Medium Term Notes." The Indenture of Mortgage and Deed of Trust as supplemented
is referred to in this prospectus as the "Mortgage." Unsecured obligations will
be issued under an Indenture between Portland General and HSBC Bank USA, as
Trustee, dated April 30, 1999, as supplemented by one or more additional
supplemental indentures. This Indenture as supplemented is referred to in this
prospectus as the "Indenture."
The following description is a summary of selected provisions of the
Mortgage and the Indenture. The summary is not complete. We have filed the form
of the Mortgage and the form of the Indenture as exhibits to the registration
statement of which this prospectus is a part and you should read the Mortgage
and the Indenture because these documents, and not this description, define your
rights as a holder of the debt securities. In the summary below, we have
included references to certain section numbers of the Mortgage and of the
Indenture so that you can locate these provisions. Capitalized terms used in the
summary below have the meanings specified in the Mortgage and the Indenture.
SECURED OBLIGATIONS
Debt securities which are secured obligations will rank equally with all of
our other senior debt obligations and will have priority with respect to the
mortgaged assets. The secured obligations will be issued under the Mortgage and
will be secured equally with all other debt securities which have been or may be
issued under the Mortgage by a direct first lien on substantially all of our now
owned or hereafter acquired property (except cash, securities, contracts and
accounts receivable, motor vehicles, materials and supplies, fuel, certain
minerals and mineral rights and certain other assets) subject, however, to
certain permitted encumbrances and to various exceptions, reservations,
reversions, easements and minor irregularities and deficiencies in title which
will not interfere with the proper operation and development of the mortgaged
property.
Debt securities which are secured obligations may be either First Mortgage
Bonds or Medium Term Notes, either of which may be issued under the Mortgage and
will be equally secured with all other debt securities which have been or may be
issued under the Mortgage. We may issue First Mortgage Bonds or Medium Term
Notes in one or more transactions. First Mortgage Bonds will have a maturity of
three years to thirty years. Medium Term Notes will have a maturity from nine
months to thirty years. The proposed supplemental indenture for First Mortgage
Bonds is filed as an exhibit to the registration statement of which this
prospectus is a part. The proposed supplemental indenture for Medium Term Notes
is also filed as an exhibit to the registration statement of which this
prospectus is a part. The proposed supplemental indentures are referred to
herein as the "New Supplementals."
The Mortgage permits the acquisition of property subject to prior liens.
However, no property subject to prior liens (other than purchase money liens)
may be acquired (a) if at the date the property is acquired the principal amount
of indebtedness secured by prior liens, together with all of our other prior
lien indebtedness, is greater than 10% of the aggregate principal amount of debt
securities outstanding under the Mortgage, or (b) if at the date the property is
acquired the principal amount of indebtedness secured by prior liens is greater
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than 60% of the cost of such property to us, or (c) in certain cases of property
used by another entity in a business similar to ours, unless the net earnings of
such property meet certain tests. (Mortgage Section 8.11)
The term "bondable public utility property", as presently defined in the
Mortgage, means specified types of tangible property, including property in the
process of construction, which is now owned or may be acquired by Portland
General and subjected to the lien of the Mortgage as supplemented, modified or
amended now or in the future, which is located in the State of Oregon or in any
state contiguous thereto. (Mortgage Section 1.10A) When the holders of 75% in
principal amount of debt securities of all series then outstanding under the
Mortgage consent to the amendment, including the holders of not less than 60% in
principal amount of the debt securities then outstanding of each series which is
affected by the amendment, the term "bondable public utility property" will be
amended to include tangible property in Oregon, Washington, California, Arizona,
New Mexico, Idaho, Montana, Wyoming, Utah, Nevada and Alaska. Each holder of
secured debt securities offered by this prospectus, by accepting the secured
debt securities, shall be deemed to consent to the amendment. No further vote or
consent of holders of the secured debt securities shall be required to permit
the amendment to become effective; and in determining whether the holders of not
less than 75% of principal amount of bonds outstanding at the time the amendment
becomes effective have consented to the amendment, the holders of all secured
debt securities offered by this prospectus then outstanding shall be deemed to
have consented. (New Supplementals Section 1.08 and 1.07) Similar provisions are
contained in all recent Supplemental Indentures under which new series of
secured debt securities have been issued. Similar provisions amending the
definition of "bondable public utility property" to include all of the states
named above (other than Alaska) are included in certain prior Supplemental
Indentures, as well as in the New Supplementals.
We have covenanted, among other things,
- to not issue debt securities under the Mortgage in any manner other than
in accordance with the Mortgage;
- to keep the Mortgage a first priority lien on the property subject to it;
and
- except as permitted by the Mortgage, to not suffer any act or thing
whereby the property subject to it might or could be impaired. (Mortgage
Section 8.03)
The Mortgage does not contain any provisions that afford holders of secured debt
securities special protection in the event of a highly leveraged transaction by
Portland General; however the secured debt securities would continue to be
entitled to the benefit of a first priority lien on the property subject to the
Mortgage as described above. Any special provisions applicable to the secured
debt securities will be set forth in a prospectus supplement with respect to the
secured debt securities.
REDEMPTION AND PURCHASE OF SECURED DEBT SECURITIES
A prospectus supplement will disclose any special provisions for redemption
or purchase at the option of Portland General of any particular series of
secured debt securities. Under the Mortgage the secured debt securities will be
redeemable at any time at 100% of their principal amount, together with interest
accrued to the date of redemption, by the use of proceeds from the sale or
disposition of substantially all of our electric properties at Portland, Oregon.
(Mortgage Section 7.01)
Cash deposited under any provision of the Mortgage (with certain
exceptions) may be applied to the purchase of the secured debt securities issued
under the Mortgage. (Mortgage Section 7.05)
SINKING FUND PROVISIONS
We may establish a sinking fund for the benefit of a particular series of
secured debt securities. If a sinking fund is established we will be required to
deposit with the Trustee at certain specified times sufficient cash to redeem a
percentage of or the whole series. The prospectus supplement with respect to
that series will state the price or prices at which, and the terms and
conditions upon which the offered debt securities will be
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redeemed. The prospectus supplement will also set forth the percentage of
securities of the series to be redeemed.
The amount of cash we will be required to deposit in a sinking fund will be
determined after deducting from the aggregate principal amount of securities to
be redeemed (but only if the deductions would aggregate $500,000 or more) the
sum of (1) the aggregate principal amount of securities of the series previously
redeemed out of the proceeds of property released from the lien of the Mortgage
and (2) securities of the series previously redeemed and retired and made the
basis for the withdrawal of those proceeds or certified in lieu of deposit of
cash upon the release of property. In some cases, we may elect to take credit
against the cash to be deposited in an amount equal to the principal amount of
the securities of that series that we (1) deliver to the Trustee, (2) redeem at
the Regular Redemption Price and/or (3) redeem at the Special Redemption Price
in anticipation of a sinking fund payment at any time during the twelve months
preceding the payment date for the securities. In some cases, we may also
satisfy all or any part of the sinking fund payment by certifying to the Trustee
available additions in an amount equal to 166 2/3% of the portion of the sinking
fund payment so satisfied. If sinking fund payments for the securities of any
series are allowed to be satisfied other than through the deposit of cash with
the Trustee, there can be no assurance that any of the secured debt securities
of any series will ever be called for redemption through operation of the
sinking fund.
The prospectus supplement may provide that cash deposited in the sinking
fund will be used by the Trustee for the redemption of securities of the series
and that we will be required to pay all accrued interest and expenses with
respect to any securities of the series to be redeemed. (Mortgage Section 4.03)
If not all of the secured debt securities of the series are redeemed, the
Trustee will select by lot the securities to be redeemed in any manner deemed
proper by the Trustee. (Mortgage Section 9.03)
REPLACEMENT FUND
If the amount of depreciation upon bondable public utility property (as
defined below) exceeds property additions in any year, we will pay the excess to
the Trustee on May 1 of the following year, by either payments in cash or by
delivery of secured debt securities. We will take credit against the amount to
be paid for property additions acquired or constructed by us from March 31, 1945
to the end of the calendar year for which the payment is due. We will not,
however, take credit for property additions or available additions that have
been previously made the basis for credit under the Mortgage or any other
replacement fund. We may, at our election, credit against the replacement fund
amount (1) available retirements of secured debt securities; (2) certain
expenditures on bondable public utility property subject to prior lien; and (3)
certain retirements of prior lien indebtedness. If those credits at any time
exceed the replacement fund requirement we may withdraw cash or secured debt
securities held by the Trustee in the replacement fund. We may also reinstate
available retirements of secured debt securities that we previously took as
credit against any replacement fund requirement. Cash deposited in the
replacement fund may, at our option, be applied to the redemption or purchase of
secured debt securities. Those redemptions would be at the then applicable
regular redemption prices. (Mortgage Section 4.04; New Supplementals Sections
1.04 and 1.03)
MINIMUM PROVISION FOR DEPRECIATION
Under the Mortgage there is a "minimum provision for depreciation" of
bondable public utility property. The aggregate amount of the minimum provision
for depreciation of bondable public utility property for any period after March
31, 1945 is $35,023,487.50 plus an amount for each calendar year or fraction of
a year after December 31, 1966 equal to the greater of (1) an amount equal to 2%
of bondable public utility property, as shown by our books as of January 1 of
that year, as to which we were required to make appropriations to a reserve for
depreciation or obsolescence; or (2) the amount we actually appropriated in
respect of the property to a reserve for depreciation or obsolescence, in either
case less an amount equal to the aggregate of (a) the amount of any property
additions which we made the basis for a sinking fund credit during the calendar
year, and (b) 166 2/3% of the principal amount of any secured debt securities of
any series which we credited against any sinking fund payment or which we
redeemed in anticipation of, or out of moneys paid to the Trustee on account of,
any sinking fund payment during the calendar year. (New Supplementals Sections
1.07 and 1.08) The property additions and secured debt securities referred to in
(a) and (b) above become disqualified from
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being made the basis of the authentication and delivery of secured debt
securities or any other further action or credit under the Mortgage. In
addition, the minimum provision for depreciation shall also include (i) the
amount of any property additions referred to in (a) above which after December
31, 1966 were made the basis for a sinking fund credit pursuant to the
provisions of a sinking fund for secured debt securities of any series, and
thereafter became "available additions" as a result of the fact that all secured
debt securities of such series ceased to be outstanding, and (ii) 166 2/3% of
the principal amount of secured debt securities referred to in (b) above, which
after December 31, 1966 were credited against any sinking fund payment, or were
redeemed in anticipation of, or out of moneys paid to the Trustee on account of,
any sinking fund payment for secured debt securities of any series, and
thereafter became "available retirements of secured debt securities" as a result
of the fact that all secured debt securities of such series ceased to be
outstanding. (New Supplementals Sections 1.07 and 1.08)
ISSUANCE OF ADDITIONAL BONDS
We may issue an unlimited amount of secured debt securities under the
Mortgage so long as the additional secured debt securities are issued from time
to time on the basis of (1) 60% of available additions, (2) the deposit of cash
or (3) available retirements of secured debt securities. With certain exceptions
in the case of (3) above, the issuance of secured debt securities is subject to
net earnings available for interest for 12 consecutive months within the
preceding 15 months being at least twice the annual interest requirements on all
secured debt securities to be outstanding and all prior lien indebtedness.
(Mortgage Sections 5.02, 5.03, 5.04 and 5.05) Cash deposited with the Trustee
pursuant to (2) above may be (a) withdrawn in an amount equal to 60% of
available additions, (b) withdrawn in an amount equal to available retirements
of secured debt securities or (c) applied to the purchase or redemption of
secured debt securities. (Mortgage Sections 7.02, 7.03 and 7.04) At December 31,
1998, we had available additions and available retirements of secured debt
securities sufficient to permit the issuance of approximately $469,000,000 and
$356,000,000, respectively, in principal amount of additional secured debt
securities, including the First Mortgage Bonds and Medium Term Notes. As of
December 31, 1998, net earnings available for interest would permit the issuance
of up to $629,000,000 principal amount of additional secured debt securities,
including First Mortgage Bonds and Medium Term Notes. This amount would increase
to the extent proceeds of the issuance of secured debt securities are used to
retire presently outstanding secured debt securities.
Available additions are determined, at any time, by deducting from the
aggregate amount of property additions since March 31, 1945 (1) the greater of
the aggregate amount of retirements since March 31, 1945 or the aggregate amount
of the minimum provision for depreciation upon bondable public utility property
not subject to a prior lien since March 31, 1945, and (2) the aggregate of
available additions theretofore made the basis for action or credit under the
Mortgage. (Mortgage Sections 1.10I, 3.01 and 3.03A) Property additions taken as
a credit against the replacement fund requirement are not deemed to be "made the
basis for action or credit". (Mortgage Section 1.10H)
DIVIDEND RESTRICTIONS
So long as any of the offered secured debt securities, or any of the
secured debt securities authenticated under the Mortgage are outstanding, we
will be subject to the following restrictions:
- we may not pay or declare dividends (other than stock dividends) or other
distributions on our Common Stock;
- we may not purchase any shares of our capital stock (other than in
exchange for or from the proceeds of other shares of our capital stock)
if the aggregate amount distributed or expended after December 31, 1944 would
exceed the aggregate amount of our net income, as adjusted, available for
dividends on our Common Stock accumulated after December 31, 1944. (Mortgage
Section 4.06; New Supplementals Section 1.04 and 1.03) At December 31, 1998,
$679,000,000 of accumulated net income was available for payment of dividends
under this provision.
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RELEASE AND SUBSTITUTION OF PROPERTY
Property subject to the lien of the Mortgage may (subject to certain
exceptions and limitations) be released only upon the substitution of cash,
purchase money obligations or certain other property or upon the basis of
available additions or available retirements of secured debt securities.
(Mortgage Article SIX)
MODIFICATION OF THE MORTGAGE
Under the Mortgage our rights and obligations and the rights of the holder
may be modified with the consent of the holders of 75% in aggregate principal
amount of the outstanding secured debt securities, including 60% of the secured
debt securities of each series affected by the modification. No modification of
the principal or interest payment terms, and no modification reducing the
percentage required for modifications, is effective against any holder without
its consent. (Mortgage Section 17.02) The Mortgage may also be modified in
various other respects not inconsistent with the Mortgage and which do not
adversely affect the interests of the holders of secured debt securities
(Mortgage Section 17.01)
DEFAULTS AND NOTICE THEREOF
Each of the following will constitute a default:
- failure to pay the principal when due;
- failure to pay interest for 60 days;
- failure to deposit any sinking, replacement or improvement fund payment
when due;
- certain events in bankruptcy, insolvency or reorganization of Portland
General; and
- failure to perform any other covenant in the Mortgage that continues for
60 days after being given written notice. (Mortgage Section 11.01)
The Trustee may withhold notice to the holders of secured debt securities
of any default (except in payment of principal, interest or any sinking or
purchase fund installment) if it in good faith determines that withholding
notice is in the best interest of the holder of secured debt securities.
(Mortgage Section 14.09)
If an event of default occurs and continues, the Trustee or the holders of
at least 25% in aggregate principal amount of the secured debt securities may
declare the entire principal and accrued interest due and payable immediately.
If this happens, subject to certain conditions, the holders of a majority of the
aggregate principal amount of the secured debt securities can avoid the
declaration. (Mortgage Section 11.01)
No holder of secured debt securities may enforce the lien of the Mortgage,
unless (i) it has given the Trustee written notice of default, (ii) the holders
of 25% of the secured debt securities have requested the Trustee to act and have
offered the Trustee reasonable indemnity and (iii) the Trustee has failed to act
within 60 days. (Mortgage Section 11.21) If they provide this reasonable
indemnification, the holders of a majority in principal amount of the secured
debt securities may direct the time, method and place of conducting any
proceeding or any remedy available to the Trustee, or exercising any power
conferred upon the Trustee. (Mortgage Section 11.20)
EVIDENCE TO BE FURNISHED TO THE TRUSTEE
Compliance with Mortgage provisions is evidenced by the written statements
of our officers or persons we selected and paid. In certain cases, opinions of
counsel and certificates of an engineer, accountant, appraiser or other expert
(who in some instances must be independent) must be furnished. Various
certificates and other papers are required to be filed annually and upon the
occurrence of certain events, including an annual certificate with respect to
compliance with the terms of the Mortgage and the absence of defaults.
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INTEREST AND PAYMENT
The prospectus supplement will set forth:
- the interest rate or rates or the method of determination of the interest
rate or rates of the secured debt securities;
- the date or dates on which the interest is payable; and
- the office or agency in the Borough of Manhattan, City and State of New
York at which interest will be payable.
UNSECURED DEBT SECURITIES
Unsecured debt securities may be issued from time to time in one or more
series under the Indenture. The particular terms of the unsecured debt
securities offered will be set forth in a prospectus supplement. Such prospectus
supplement will indicate the extent, if any, to which the general provisions
described in this prospectus will apply to the offered unsecured debt
securities.
GENERAL
The Indenture does not limit the amount of unsecured debt securities we may
offer. The unsecured debt securities may be issued from time to time in one or
more series pursuant to the Indenture. A prospectus supplement relating to any
series of unsecured debt securities being offered will include specific terms
relating to the offering. These terms will include some or all of the following:
- The title and type of the securities;
- The total principal amount of the securities;
- The dates on which the principal of the securities will be payable;
- The interest rate which the securities will bear and the interest payment
dates for the securities;
- The place where principal or interest will be payable;
- Any optional redemption provisions;
- The terms and conditions on which the securities may be discharged prior
to redemption or maturity;
- Any sinking fund or other provisions that would obligate us to repurchase
or otherwise redeem the securities;
- Any special tax implications of the securities, including provisions for
original issue discount; and
- Any other terms of the securities. (Indenture Section 301)
The unsecured debt securities will not be secured by any lien. Payment of
the principal, interest and any premium on the unsecured debt securities will
generally be equal in right of payment to all of our secured debt securities and
all of our other senior indebtedness, but will be subject to the prior lien
rights of the holders of secured debt securities. Senior indebtedness includes
all of our notes or other unsecured evidences of indebtedness including
guarantees for money borrowed by us, that is not expressed to be subordinate or
junior in right of payment to senior indebtedness. Our 8.25% Quarterly Income
Debt Securities (Junior Subordinated Deferrable Interest Debentures, Series A)
are subordinated to the unsecured debt securities.
NEGATIVE PLEDGE
The Indenture provides that so long as any unsecured debt securities issued
under the Indenture are outstanding, we may not create or allow to exist any
mortgage, security interest or lien upon any of our property, assets or revenues
to secure any of our indebtedness without making effective provisions whereby
the unsecured debt securities shall be equally and ratably secured. This
restriction does not apply, however, to the
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<PAGE> 11
liens and security interests created pursuant to the Mortgage or permitted by
the Mortgage and various other liens, mortgages and security interests specified
in the Indenture. Such other permitted liens include:
- liens for taxes not yet due or being contested;
- mechanics', materialmen's, repairmen's or similar liens incurred in the
ordinary course of business;
- liens arising out of judgments or awards not exceeding $25,000,000 in the
aggregate with respect to which appeals are being prosecuted, execution
thereof having been effectively stayed pending such appeals;
- certain liens securing the payment of indebtedness to a state, territory
or possession of the United States or any political subdivision thereof
issued in a transaction in which such state, territory, possession or
political subdivision issued obligations the interest on which is
excludable from gross income pursuant to the provisions of the Internal
Revenue Code of 1986;
- liens or security interests on or over specific assets hereafter acquired
which are created or assumed contemporaneously with, or within 120 days
after such acquisition, for the sole purpose of financing or refinancing
the acquisition of such assets; and
- liens or security interests over all or any part of our assets
constituting a specific construction project or generating plant as
security for any indebtedness incurred for the purpose of financing all
or such part of such construction project or generating plant. (Indenture
Section 1009)
OTHER PROVISIONS
The Indenture contains provisions, with regard to (1) our consolidating or
merging with or into any other corporation or selling or conveying substantially
all of our property to another corporation, (2) amendment or modification of the
Indenture; (3) events of default with respect to unsecured debt securities of
any series; and (4) the duties and responsibilities of the Trustee under the
Indenture. (Indenture Articles Eight, Nine, Five, and Six and Seven,
respectively)
Other than the negative pledge provisions of Section 1009 of the Indenture
referred to above, the Indenture will not contain any provisions that afford
protection to the holders of unsecured debt securities in the event we are
involved in a highly leveraged transaction.
The Indenture and the unsecured debt securities will be governed by and
construed in accordance with the laws of the State of New York. (Indenture
Section 112)
BOOK ENTRY ONLY SYSTEM
Unless otherwise indicated in a prospectus supplement, the debt securities
will only be issued in fully registered form, without coupons, in denominations
of $1,000 or integral multiples thereof. (Mortgage Section 2.05; Indenture
Section 302) Under the Mortgage, we may require you to pay for taxes or other
governmental charges due upon a transfer or exchange and we may require you to
pay a service charge of $2.00 per debt security upon a transfer or exchange.
(Mortgage Section 2.11) Under the Indenture, you will not have to pay a service
charge to transfer or exchange debt securities, but we may require you to pay
for taxes or other governmental charges due upon a transfer or exchange.
(Indenture Section 305)
Unless otherwise indicated in a prospectus supplement, each series of debt
securities will be issued in the form of a global certificate deposited with The
Depository Trust Company ("DTC"). The certificate(s) will be registered in the
name of Cede & Co., as nominee of DTC.
Ownership of beneficial interests in a global certificate will be limited
to persons who have accounts with DTC ("participants") or persons who hold
interests through participants. DTC will keep a computerized record of its
participants (for example your broker) whose clients have purchased the
securities. The participants will then keep a record of its clients who purchase
the securities. Ownership of beneficial interests in the global certificate will
be shown on, and the transfer of these ownership interests will be effected only
10
<PAGE> 12
through, records maintained by DTC and the records of participants (with respect
to interests of persons other than participants).
So long as DTC, or its nominee, is the registered owner or holder of a
global certificate, DTC or its nominee, as the case may be, will be considered
the sole owner or holder of the debt securities of that series represented by
the global certificate for all purposes. No beneficial owner of an interest in a
global certificate will be able to transfer that interest except in accordance
with DTC's applicable procedures.
Payments on debt securities represented by global certificates will be made
to DTC or its nominee, as registered owner. Neither we, the Trustee, any
underwriter nor any paying agent will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interests in global certificates, for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests or for any
action taken or omitted to be taken by the Depositary or any participant.
We expect that DTC or its nominee will credit participants' accounts on the
payable date with payments in respect of a global certificate as shown on the
records of DTC or its nominee, unless DTC has reason to believe that it will not
receive payment on the payable date. We also expect that payments by
participants to owners of beneficial interests in the global certificate held
through those participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts of
customers registered in "street name." Such payments will be the responsibility
of the participants.
Transfers between participants in DTC will be effected in accordance with
DTC rules. The laws of some states require that certain persons take physical
delivery of securities in definitive form. Consequently, the ability to transfer
beneficial interests in a global certificate to those persons may be impaired.
Because DTC can only act on behalf of participants, who in turn act on behalf of
others, such as securities brokers and dealers, banks and trust companies
("indirect participants"), the ability of a person having a beneficial interest
in a global certificate to pledge that interest to persons or entities that do
not participate in the DTC system, or otherwise take actions in respect of that
interest, may be impaired by the lack of a physical certificate of such
interest.
We believe it is the policy of DTC to take any action permitted to be taken
by a holder of debt securities of a series only at the direction of one or more
participants to whose account interests in global certificates are credited and
only in respect of that portion of the aggregate principal amount of the debt
securities of a series as to which that participant or participants has or have
given such direction.
If (1) DTC notifies us that it is unwilling or unable to continue as
depositary or if DTC ceases to be eligible under the Indenture and a successor
depositary is not appointed by us within 90 days or (2) an event of default with
respect to a series of debt securities has occurred and is continuing, the
global certificate representing the affected series of debt securities will be
exchanged for debt securities in definitive form of like tenor and of an equal
aggregate principal amount, in authorized denominations. Such definitive debt
securities will be registered in the name or names as DTC instructs the Trustee.
Such instructions will most likely be based upon directions received by DTC from
participants with respect to ownership of beneficial interests in the global
certificate.
DTC has advised us as follows: 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" with the meaning of the New York Uniform Commercial Code
and a "clearing agency" registered pursuant to the provisions of Section 17A of
the Securities Exchange Act of 1934. DTC holds securities that its participants
deposit with DTC and 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. DTC is owned by a number
of its direct participants, including those who may act as underwriters of our
debt securities, 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 indirect participants that
clear through or
11
<PAGE> 13
maintain a custodial relationship with a direct participant, either directly or
indirectly. The rules applicable to DTC and its participants are on file with
the SEC.
DTC has further advised us that the management of DTC is aware that some
computer applications, systems, and the like for processing data that are
dependent upon calendar dates, including dates before, on, and after January 1,
2000, may encounter "Year 2000 problems." DTC has informed its participants and
other members of the financial community that it has developed and is
implementing a program so that its systems, as the same relate to the timely
payment of distributions (including principal and interest payments) to security
holders, book-entry deliveries, and settlement of trades within DTC, continue to
function appropriately. This program includes a technical assessment and a
remediation plan, each of which DTC reports is complete. Additionally, DTC's
plan includes a testing phase, which DTC expects to be completed within
appropriate time frames.
However, DTC's ability to perform its services properly is also dependent
upon other parties, including but not limited to issuers and their agents, as
well as the DTC's direct and indirect participants and third party vendors from
whom DTC licenses software and hardware, and third party vendors on whom DTC
relies for information or the provision of services, including telecommunication
and electrical utility service providers, among others. DTC has informed the
industry that it is contacting (and will continue to contact) third party
vendors from whom DTC acquires services to: (1) impress upon them the importance
of such services being Year 2000 compliant; and (2) determine the extent of
their efforts for Year 2000 remediation (and, as appropriate, testing) of their
services. In addition, DTC is in the process of developing such contingency
plans as it deems appropriate.
According to DTC, the foregoing information with respect to DTC has been
provided to the industry for informational purposes only and is not intended to
serve as a representation, warranty, or contract modification of any kind.
Although DTC has agreed to the foregoing procedures in order to facilitate
transfers of interests in global certificates among participants of DTC, it is
under no obligation to perform or continue to perform such procedures, and such
procedures may be discontinued at any time. Neither we, the Trustee, any
underwriter nor any paying agent will have any responsibility for the
performance by DTC or its participants or indirect participants of their
respective obligations under the rules and procedures governing their
operations.
CONCERNING THE TRUSTEE
HSBC Bank USA, formerly Marine Midland Bank, is the Trustee under the
Mortgage and the Indenture. HSBC Bank USA may also act as a depository of funds
for, make loans to, and perform other services for, us in the normal course of
business, including acting as trustee under our other indentures. The corporate
trust office of the Trustee is located at 140 Broadway, 12th Floor, New York,
New York 10005-1180.
The holders of a majority in principal amount of the outstanding securities
issued under the Mortgage or the Indenture, as applicable, may direct the time,
method and place of conducting any proceeding for exercising any remedy
available to the Trustee, subject to certain exceptions. The Mortgage and the
Indenture each provide that if default occurs (and it is not cured), the Trustee
will be required, in the exercise of its power, to use the degree of care of a
prudent person in the conduct of such person's own affairs. Subject to these
provisions, the Trustee will be under no obligation to exercise any of its
rights or powers under the Mortgage or the Indenture at the request of any
holder of securities issued under the Mortgage or the Indenture, unless that
holder has offered to the Trustee security and indemnity satisfactory to it
against any loss, liability or expense, and then only to the extent required by
the terms of the Mortgage or the Indenture. The Trustee may resign from its
duties with respect to the Mortgage or the Indenture at any time or may be
removed by us. If the Trustee resigns, is removed from or becomes incapable of
acting as Trustee or a vacancy occurs in the office of the Trustee for any
reason, a successor Trustee shall be appointed in accordance with the provisions
of the Mortgage or the Indenture, as applicable.
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<PAGE> 14
PLAN OF DISTRIBUTION
We may sell the offered securities in one or more of the following ways:
(a) through underwriters or dealers; (b) directly to a limited number of
purchasers or to a single purchaser; (c) through agents or (d) through a
combination of any such methods. A prospectus supplement with respect to each
series of the offered securities will set forth the terms of the offering of the
offered securities and the proceeds to Portland General from the sale thereof,
the name or names of any underwriters or agents, any underwriting discounts and
other items constituting underwriters' compensation, any initial public offering
price and any discounts or concessions allowed or reallowed or paid to dealers.
Any initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
BY UNDERWRITERS
If underwriters are used in the sale, the offered securities will be
acquired by the underwriters for their own account. The underwriters may resell
the securities 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 offered securities may be offered to the public either through
underwriting syndicates represented by one or more managing underwriters, or
directly by one or more firms acting as underwriters. The underwriter or
underwriters participating in an offering will be named in a prospectus
supplement relating to that offering. If an underwriting syndicate is used, the
managing underwriter or underwriters will be named on the cover page of such
prospectus supplement. Any underwriting agreement will provide that the
obligations of the underwriters are subject to certain conditions precedent, and
that the underwriters must purchase all of the securities of the series offered
by a prospectus supplement if any of the securities are purchased. Any
underwriter utilized may be entitled to indemnification from PGE against certain
civil liabilities, including liabilities under the Securities Act of 1933.
BY AGENTS
Securities offered by us pursuant to this prospectus may also be sold
through agents designated by us. Agents who participate in the distribution of
the offered securities may be entitled to indemnification by us against certain
liabilities, including liabilities under the Securities Act of 1933. If an agent
is involved, the prospectus supplement will set forth the name of the agent and
the commission payable by us to the agent.
DELAYED DELIVERY CONTRACTS OR FORWARD CONTRACTS
If so indicated in the prospectus supplement, we will authorize
underwriters or other persons acting as agents to solicit offers by certain
institutions to purchase the offered securities from us pursuant to contracts
providing for payment and delivery on a future date. Institutions with which
such contracts may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and others, but in all cases will be subject to our approval. The
obligations of any purchaser under any such contract will be subject to the
condition that the purchase of the offered securities will not at the time of
delivery be prohibited under the laws of the jurisdiction to which that
purchaser is subject. The underwriters and agents will not have any
responsibility in respect of the validity or performance of such contracts.
DIRECT SALES
Offered securities may also be sold directly by us. In this case, no
underwriters or agents would be involved.
TRADING MARKET
Each series of offered securities will be a new issue of securities and
will have no established market. Any underwriters to whom offered securities are
sold by us for public offering and sale may make a market in the offered
securities, but such underwriters will not be obligated to do so and may
discontinue any market making
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<PAGE> 15
at any time without notice. The offered securities may or may not be listed on a
national securities exchange. No assurance can be given as to the liquidity of
or the trading markets for any of the offered securities.
VALIDITY OF SECURITIES
Legal matters in connection with the issuance and sale of the offered
securities are being passed upon for Portland General by Vinson & Elkins L.L.P.,
Houston, Texas and for the underwriters or agents by Bracewell & Patterson,
L.L.P., Houston, Texas.
EXPERTS
Our consolidated financial statements included in our Annual Report on Form
10-K for the year ended December 31, 1998, are incorporated by reference in this
prospectus. These consolidated financial statements have been audited by Arthur
Andersen LLP, independent public accountants, as indicated in their report with
respect thereto, and are incorporated herein by reference in reliance upon the
authority of said firm as experts in accounting and auditing in giving said
reports.
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<PAGE> 16
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Estimated expenses in connection with this registration, all of which are
borne by Portland General Electric Company ("PGE"), are as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee......... $ 55,600.00
Printing and engraving expenses............................. 30,000.00*
Fees and expenses of independent public accountants......... 25,000.00*
Listing fees (if any)....................................... 30,000.00*
Rating Agency fees.......................................... 60,000.00*
Legal Fees.................................................. 100,000.00*
Trustee fees................................................ 40,000.00*
Blue Sky fees............................................... 20,000.00*
Miscellaneous expenses...................................... 50,000.00*
-----------
Total............................................. $410,600.00*
===========
</TABLE>
- ---------------
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 1 of Article VII of the Bylaws of PGE provides as follows:
"A director of the Corporation shall not be personally liable to the
Corporation or its shareholders for monetary damages for conduct as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Corporation or its shareholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
any unlawful distribution under Oregon Revised Statutes Section 60.367, or (iv)
for any transaction from which the director derived an improper personal
benefit. Any repeal or amendment of this provision shall be prospective only and
shall not adversely affect any limitation on the liability of a director of the
Corporation existing at the time of such repeal or amendment. In addition to the
circumstances in which a director of the Corporation is not liable as set forth
in the foregoing provisions, a director shall not be liable to the fullest
extent permitted by any provisions of the statutes of Oregon hereafter enacted
that further limits the liability of a director."
Section 2 of Article VII of the Bylaws of PGE provides in part as follows:
"Each person who was or is made a party to, or is threatened to be made a
party to, or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative . . ., by reason of the fact that he
or she, or a person of which he or she is the legal representative, is or was a
director or officer, of the Corporation or is or was serving at the request of
the Corporation as a director, officer, partner, trustee, employee or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, partner, trustee, employee or agent or in any other capacity
while serving as a director, officer, partner, trustee, employee or agent, shall
be indemnified and held harmless by the Corporation to the fullest extent
authorized by the Oregon Business Corporation Act, as the same exists or may
hereafter be amended (but, in the case of any such amendments, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith, and such indemnification shall continue as to a person
who has ceased to serve in a capacity to which the above indemnification applies
and shall inure to the benefit of his or her heirs, executors and
administrators; provided, however, that, except as provided in this Section 2,
the Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part
II-1
<PAGE> 17
thereof) initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Section 2 shall be a contract right and shall
include the right to be paid by the Corporation for expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that, if the Oregon Business Corporation Act requires, the payment of
such expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of the proceeding, such payment of expenses shall be made only upon
delivery to the Corporation of a written affirmation of the director or
officer's good faith belief that such director has met the standard of conduct
described in Oregon Revised Statutes Section 60.391 and of an undertaking, by or
on behalf of such director or officer, to repay all amounts so advanced if it
shall ultimately to be determined that such director or officer is not entitled
to be indemnified under this Section 2 or otherwise."
Article V of the Articles of Incorporation of PGE provides as follows:
"To the fullest extent permitted by law, no director of this corporation
shall be personally liable to the corporation or its shareholders for monetary
damages for conduct as a director. No amendment or repeal of this provision
shall adversely affect any right or protection of a director existing at the
time of such amendment or repeal. No change in the law shall reduce or eliminate
the rights and protections applicable at the time this provision shall become
effective unless the change in law shall specifically require such reduction or
elimination."
PGE has procured Directors and Officers liability insurance for wrongful
acts. This is an indemnity policy for the corporation to protect it against
liability assumed or incurred under the above indemnification provisions,
including defense provisions, on behalf of the directors and officers. The
directors and officers are thus indemnified against loss arising from any civil
claim or claims by reason of any wrongful act done or alleged to have been done
while acting in their respective capacities as directors or officers. The policy
excludes claims brought about or contributed to by dishonest, fraudulent,
criminal or malicious acts or omissions by directors or officers. The policy
covers the directors and officers of PGE against certain liabilities, including
certain liabilities arising under the Securities Act of 1933, as amended (the
"Securities Act"), which might be incurred by them in such capacities and
against which they cannot be indemnified by PGE.
Any agents, dealers or underwriters who execute any of the agreements filed
as Exhibit 1 to this registration statement will agree to indemnify PGE's
directors and officers who signed the registration statement against certain
liabilities which might arise under the Securities Act with respect to
information furnished to PGE by or on behalf of any such indemnifying party.
The Oregon Business Corporation Act ("Act") authorizes indemnification of
directors, officers, employees, and agents of Oregon corporations. The Act
requires indemnification of reasonable expenses of a director who was wholly
successful, on the merits or otherwise, in defense of any proceeding in which
the director was a party because of being a director, unless such
indemnification is limited by the articles of incorporation. The Registrant's
articles do not contain such limitation.
ITEM 16. LIST OF EXHIBITS.
(See page II-6).
ITEM 17. UNDERTAKINGS.
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 foregoing provisions, 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 Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrants in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
II-2
<PAGE> 18
securities being registered, the registrants will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
The undersigned registrant hereby undertakes: (1) to file, during any
period in which offers or sales are being made, a post-effective amendment to
this registration statement (i) to include any prospectus required by section
10(a)(3) of the Securities Act of 1933, (ii) to reflect in the prospectus any
facts or events arising after the effective date of the registration statement
(or 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, (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 clauses (i) and (ii) above do not apply if
the information required to be included in a post-effective amendment by those
clauses is contained in periodic reports filed by the Company pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in this registration statement; (2) that, for the purpose of
determining any liability under the Securities Act of 1933, each such
post-effective amendment and each filing of the Company's annual report pursuant
to Section 13(a) or 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; and (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.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of a
registration statement in reliance upon Rule 430A and contained in the form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of the
registration statement as of the time it was declared effective.
(2) For the purposes of determining any liability under the Securities
Act, 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.
II-3
<PAGE> 19
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Portland
General Electric Company certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused
this Registration Statement or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Portland, and State of
Oregon, on the 30th day of April, 1999.
PORTLAND GENERAL ELECTRIC COMPANY
(Registrant)
By: /s/ KEN L. HARRISON
------------------------------------
(Ken L. Harrison, Chairman of the
Board
and Chief Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement or amendment has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
PRINCIPAL EXECUTIVE OFFICER:
/s/ KEN L. HARRISON Chairman of the Board and Chief April 30, 1999
- --------------------------------------------------- Executive Officer
(Ken L. Harrison)
PRINCIPAL FINANCIAL OFFICER AND PRINCIPAL
ACCOUNTING OFFICER:
/s/ MARY K. TURINA Treasurer, Controller and Chief April 30, 1999
- --------------------------------------------------- Accounting Officer
(Mary K. Turina)
DIRECTORS:
*JAMES V. DERRICK, JR.,
*PEGGY Y. FOWLER,
*KEN L. HARRISON, Directors
*KENNETH L. LAY,
*JEFFREY K. SKILLING,
* Signed on behalf of each of these persons
By /s/ MARY K. TURINA April 30, 1999
- --------------------------------------------------
(Attorney-in-Fact)
</TABLE>
II-4
<PAGE> 20
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement of our report dated March 5, 1999,
included in the Portland General Electric Company Annual Report on Form 10-K for
the year ended December 31, 1998 and to all references to our firm included in
this Registration Statement.
ARTHUR ANDERSEN LLP
Portland, Oregon,
April 30, 1999
---------------------
CONSENT OF COUNSEL
The consent of Vinson & Elkins L.L.P. is contained in the opinion of such firm
filed herewith.
II-5
<PAGE> 21
PORTLAND GENERAL ELECTRIC COMPANY
EXHIBIT INDEX
<TABLE>
<CAPTION>
NUMBER EXHIBIT
- ------ -------
<S> <C>
(1)(a) -- Form of Underwriting Agreement relating to Debt
Securities
(b) -- Portland General Electric Company Securities Underwriting
Agreement Standard Provisions dated April 30, 1999
(4)(a)* -- Articles of Incorporation of Portland General Electric
Company (Registration No. 2-85001, Exhibit 4)
(b)* -- Indenture of Mortgage and Deed of Trust dated July 1,
1945: First Supplemental Indenture dated November 1,
1947; Second Supplemental Indenture dated November 1,
1948; Third Supplemental Indenture dated May 1, 1952;
Fourth Supplemental Indenture dated November 1, 1953;
Fifth Supplemental Indenture dated November 1, 1954;
Sixth Supplemental Indenture dated September 1, 1956;
Seventh Supplemental Indenture dated June 1, 1957; Eighth
Supplemental Indenture dated December 1, 1957; Ninth
Supplemental Indenture dated June 1, 1960; Tenth
Supplemental Indenture dated November 1, 1961; Eleventh
Supplemental Indenture dated February 1, 1963; Twelfth
Supplemental Indenture dated June 1, 1963; Thirteenth
Supplemental Indenture dated April 1, 1964; Fourteenth
Supplemental Indenture dated March 1, 1965 (Form 8,
Amendment No. 1, dated June 14, 1965)
* -- Fifteenth Supplemental Indenture, dated June 1, 1966;
Sixteenth Supplemental Indenture, dated October 1, 1967;
Seventeenth Supplemental Indenture, dated April 1, 1970;
Eighteenth Supplemental Indenture, dated November 1,
1970; Nineteenth Supplemental Indenture, dated November
1, 1971; Twentieth Supplemental Indenture, dated November
1, 1972; Twenty-first Supplemental Indenture, dated April
1, 1973; Twenty-second Supplemental Indenture, dated
October 1, 1973; Twenty-third Supplemental Indenture,
dated December 1, 1974; Twenty-fourth Supplemental
Indenture, dated April 1, 1975; Twenty-fifth Supplemental
Indenture, dated June 1, 1975; Twenty-sixth Supplemental
Indenture, dated December 1, 1975; Twenty-seventh
Supplemental Indenture, dated April 1, 1976;
Twenty-eighth Supplemental Indenture, dated September 1,
1976; Twenty-ninth Supplemental Indenture, dated June 1,
1977 (Registration No. 2-61199, Exhibit 2.d-1)
* -- Thirtieth Supplemental Indenture, dated October 1, 1978;
Thirty-first Supplemental Indenture, dated November 1,
1978 (Registration No. 2-63516, Exhibit 2.d-3)
* -- Thirty-second Supplemental Indenture, dated February 1,
1980 (Registration No. 2-68415, Exhibit 2.d-4)
* -- Thirty-third Supplemental Indenture, dated August 1, 1980
(Registration No. 2-68415, Exhibit 2.d-5)
* -- Thirty-fourth Supplemental Indenture, dated March 23,
1982; Thirty-fifth Supplemental Indenture, dated March
23, 1982 (Form 10-Q for the quarter ended March 31, 1982,
Exhibit 4)
* -- Thirty-sixth Supplemental Indenture, dated September 21,
1982 (Form 8-A, dated October 28, 1982)
* -- Thirty-seventh Supplemental Indenture, dated November 15,
1984 (Form 8-K, November 19, 1984)
* -- Thirty-eighth Supplemental Indenture, dated June 1, 1985
(Form 10-Q for the quarter ended June 30, 1985, Exhibit
4)
* -- Thirty-ninth Supplemental Indenture, dated March 1, 1986
(Form 10-K for fiscal year ended December 31, 1985,
Exhibit 4)
* -- Fortieth Supplemental Indenture, dated October 1, 1990
(Form 10-K for fiscal year ended December 31, 1990,
Exhibit 4)
</TABLE>
II-6
<PAGE> 22
<TABLE>
<CAPTION>
NUMBER EXHIBIT
- ------ -------
<S> <C>
* -- Forty-first Supplemental Indenture, dated December 1,
1991 (Form 10-K for fiscal year ended December 31, 1991,
Exhibit 4)
* -- Forty-second Supplemental Indenture, dated April 1, 1993
(Form 10-Q for the quarter ended March 31, 1993, Exhibit
4)
* -- Forty-third Supplemental Indenture, dated July 1, 1993
(Form 10-Q for the quarter ended September 30, 1993,
Exhibit 4)
* -- Forty-fourth Supplemental Indenture, dated August 1, 1994
(Form 10-Q for the quarter ended September 30, 1994,
Exhibit 4)
* -- Forty-fifth Supplemental Indenture, dated May 1, 1995
(Form 10-Q for the quarter ended June 30, 1995, Exhibit
4)
* -- Forty-sixth Supplemental Indenture dated August 1, 1996
(Form 10-K for the fiscal year ended December 31, 1997,
Exhibit 4)
* -- Indenture dated September 1, 1995 between Portland
General Electric Company and The Bank of New York, as
Trustee, relating to Junior Subordinated Debentures
* -- First Supplemental Indenture dated as of October 1, 1995
relating to 8 1/4% Junior Subordinated Deferrable
Interest Debentures, Series A, including form of Junior
Subordinated Debentures
(c) -- Form of New Supplemental Indenture, including form of
First Mortgage Bond
(d) -- Form of New Medium Term Note Supplemental Indenture,
including form of Medium Term Note
(e) -- Form of New Senior Unsecured Debt Indenture, including
form of senior unsecured security
(5) -- Opinion of Vinson & Elkins LLP
(12) -- Statements re computation of ratios
(23) -- Consents of Experts and Counsel (See Page II-5)
(24) -- Power of Attorney
(25)(a) -- Statement of Eligibility of Trustee with regard to
Mortgage (Form T-1)
(b) -- Statement of Eligibility of Trustee with regard to Senior
Unsecured Debt Securities (Form T-1)
</TABLE>
- ---------------
* Incorporated by reference as indicated.
II-7
<PAGE> 1
EXHIBIT 1(a)
[Form of Underwriting Agreement for
Debt Securities incorporating
Portland General Electric Company
Underwriting Agreement Standard
Provisions dated April 30, 1999]
PORTLAND GENERAL ELECTRIC COMPANY
UNDERWRITING AGREEMENT
FOR DEBT SECURITIES
------------, ----
Portland General Electric Company
121 S.W. Salmon Street, Suite 400
Portland, Oregon 97204
Ladies and Gentlemen:
The underwriter or underwriters named below [, acting through
_____________, as representatives (the "Representatives"),] understand that
Portland General Electric Company, an Oregon corporation (the "Company"),
proposes to issue and sell $_________ aggregate principal amount of [Title of
Securities] (the "Purchased Securities"), registered on Registration
Statement[s] No[s]. _________. Subject to the terms and conditions set forth
herein or incorporated by reference herein and referred to below, the Company
hereby agrees to sell and the underwriter or underwriters named below (such
underwriter or underwriters being herein called the "Underwriters") agree to
purchase, severally and not jointly, the principal amounts of such Purchased
Securities set forth below opposite their names at a purchase price equal to
___% of the principal amount thereof [plus accrued interest on the Purchased
Securities from ___________, 199_ to the date of payment and delivery]:
<TABLE>
<CAPTION>
Name Principal Amount. Name Principal Amount
---- ----------------- ---- ----------------
<S> <C>
---------
Total: $
=========
</TABLE>
<PAGE> 2
[The aggregate principal amount of Purchased Securities to be
purchased by the several Underwriters may be reduced by the aggregate principal
amount of Purchased Securities sold pursuant to delayed delivery contracts with
institutional investors.]*
The Underwriters will pay for such Purchased Securities (less any
Purchased Securities sold pursuant to delayed delivery contracts) upon delivery
thereof at [state location] at 10:00 a.m. (New York time) on [state date].
The Purchased Securities shall have the following terms:
Maturity:
Initial Price to Public:
Interest Rate:
Redemption Provisions:
Interest Payment Dates:
Sinking Fund:
Date referred to in Section 6(1) of the Standard Provisions:
Purchase Price: ___% of the principal amount [plus accrued interest
from __________, ____ to the date of payment and
delivery]
Listing:
[Other Terms]:
[The commission to be paid to the Underwriters in respect of Purchased
Securities purchased pursuant to delayed delivery contracts arranged by the
Underwriters shall be an amount equal to ___% of the principal amount
thereof.]*
All statements, requests, notices, communications and agreements
hereunder shall be in writing, and if to the Underwriters shall be delivered or
sent by mail, telex or facsimile transmission to the Underwriters in care of
____________________ at _________________, Attention: _____________________,
Facsimile No. _______________; and if to the Company shall be delivered or sent
by mail, telex or facsimile transmission to it at 121 S.W. Salmon Street, Suite
400, Portland, Oregon 97204, Attention: _______________, Facsimile No. (504)
464-2236. Any such statements, requests, notices, communications or agreements
shall take effect upon receipt thereof.
Unless otherwise provided herein, all the provisions contained in the
document entitled Portland General Electric Company Underwriting Agreement
Standard Provisions dated April __, 1999, a copy of which was filed as an
exhibit to Registration Statement No. 333-______ or was filed as an Exhibit to
Form 8-K and subsequently incorporated by reference into such Registration
Statement, are hereby incorporated herein by reference in their entirety and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein.
- --------
* To be added only if delayed delivery contracts are contemplated.
-2-
<PAGE> 3
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below and returning the signed
copy to us, and in addition have an authorized officer send us no later than
[state date and time] by wire, telex, facsimile transmission or other written
means, the following message:
"We have entered into the Underwriting Agreement
dated [insert date] relating to the Purchased Securities
referred to therein by signing a copy of the Underwriting
Agreement and returning the same or depositing the same in
the mail to you."
Very truly yours,
[Name or names of Underwriter or Underwriters]
OR
[Name of Representative]
By:
------------------------------------------
Name:
Title:
[Acting severally on behalf of [itself]
[themselves] and the several Underwriters
named above]
Accepted:
PORTLAND GENERAL ELECTRIC COMPANY
By:
-------------------------------
Name:
Title:
-3-
<PAGE> 1
EXHIBIT 1(b)
PORTLAND GENERAL ELECTRIC COMPANY
SECURITIES
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
April 30, 1999
Portland General Electric Company, an Oregon corporation (the
"Company"), proposes to issue and sell from time to time certain of its
securities, including its secured first mortgage bonds, which can include
medium term notes (collectively, "Mortgage Bonds") and its unsecured debt
securities ("Notes") registered under the Securities Act of 1933, as amended
(the "Securities Act"), as set forth in Section 3. The Mortgage Bonds are to be
issued under an indenture of mortgage and deed of trust, dated as of July 1,
1945, as supplemented and amended (the "Bond Indenture"), between the Company
and The Marine Midland Trust Company of New York (now Marine Midland Bank), as
Trustee (the "Bond Trustee"). The Notes are to be issued under an indenture,
dated as of _____________, 1999, (the "Notes Indenture"), between the Company
and ________________, as Trustee (the "Notes Trustee"). The Mortgage Bonds and
the Notes are herein collectively referred to as "Debt Securities."
From time to time, the Company may enter into one or more underwriting
agreements that provide for the sale of certain of the Mortgage Bonds or Notes
to the underwriter or several underwriters named therein (the "Underwriters").
The standard provisions set forth herein may be incorporated by reference in
any such underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions hereof incorporated therein by reference,
is herein referred to as this "Agreement."
1. Sale and Purchase of the Securities. On the basis of the
representations, warranties and agreements herein contained, the Company
proposes to issue and sell (i) the Mortgage Bonds or (ii) Notes, in each case
in one or more series, which series may vary as to their terms (including, but
not limited to, interest rate, maturity, any redemption provisions and any
sinking fund requirements), all of such terms for a particular series being
determined at the time of sale. All or a portion of particular series of the
Debt Securities will be purchased by the Underwriters for resale upon terms of
offering determined at the time of sale. The securities so to be purchased in
any such offering are hereinafter referred to as the "Purchased Securities,"
and any firm or firms acting as representatives of such Underwriters are
hereinafter referred to as the "Representatives." If with respect to the
Purchased Securities such Representatives are acting on behalf of the
Underwriters, references herein to the Underwriters (or a majority in interest
thereof) or the Representatives in the alternative shall be deemed to refer
only to the Representatives. The term "Underwriters' Securities" means Debt
Securities which are Purchased Securities other than Contract Securities. The
term
-4-
<PAGE> 2
"Contract Securities" means Debt Securities which are Purchased Securities, if
any, to be purchased pursuant to delayed delivery contracts referred to below.
If this Agreement provides for sales of Debt Securities pursuant to
delayed delivery contracts, the Company hereby authorizes the Underwriters to
solicit offers to purchase Contract Securities on the terms and subject to the
conditions set forth in the Prospectus (as hereinafter defined) pursuant to
delayed delivery contracts substantially in the form of Schedule I attached
hereto (the "Delayed Delivery Contracts") but with such changes therein as the
Company may authorize or approve. Delayed Delivery Contracts are to be with
institutional investors approved by the Company and of the types set forth in
the Prospectus. On the Closing Date (as hereinafter defined), the Company will
pay the Underwriters in immediately available funds the fee set forth in the
Underwriting Agreement in respect of the principal amount of Contract
Securities. The Underwriters will not have any responsibility in respect of the
validity or the performance of any Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the Contract Securities shall be deducted from the
Debt Securities to be purchased by the several Underwriters and the aggregate
principal amount of Debt Securities to be purchased by each Underwriter shall
be reduced pro rata in proportion to the principal amount of Debt Securities
set forth opposite each Underwriter's name in the Underwriting Agreement,
except to the extent that the Representatives, if any, determine that such
reduction shall be otherwise and so advise the Company.
The obligations of the Underwriters under this Agreement are several
and not joint.
2. Payment and Delivery. Delivery by the Company of the Purchased
Securities or, if this Agreement provides for sales of Debt Securities pursuant
to delayed delivery contracts, the Underwriters' Securities, shall take place,
against payment by the Underwriters therefor in immediately available funds, at
the office, on the date or dates and at the time or times specified in this
Agreement, each of which date and time may be postponed for not more than ten
business days by agreement between a majority in interest of the Underwriters
or the Representatives and the Company (each such date and time of delivery and
payment for the Purchased Securities or, if this Agreement provides for sales
of Debt Securities pursuant to delayed delivery contracts, the Underwriters'
Securities, is hereinafter referred to as the "Closing Date").
The Purchased Securities or, if this Agreement provides for sales of
Debt Securities pursuant to delayed delivery contracts, the Underwriters'
Securities, shall be registered in such names and shall be in such
denominations as the Underwriters or Representatives shall request at least one
full business day prior to the Closing Date and, if requested, shall be made
available to the Underwriters or Representatives for checking and packaging at
least one full business day prior to the Closing Date.
3. Registration Statement and Prospectus; Public Offering. The Company
has filed with the Securities and Exchange Commission (the "Commission"),
pursuant to the Securities Act and the rules and regulations adopted by the
Commission thereunder (the "Rules"), a registration statement or statements on
Form S-3, including a prospectus, relating to the Mortgage Bonds and
-5-
<PAGE> 3
the Notes, and such registration statement has or such registration statements
have become effective. Such registration statement or statements referred to in
the first paragraph of the Underwriting Agreement, including financial
statements, exhibits and Incorporated Documents (as hereinafter defined), as
amended to the date of this Agreement, is or are hereinafter referred to as the
"Registration Statement," and the prospectus or prospectuses included in the
Registration Statement or deemed, pursuant to Rule 429 under the Securities
Act, to relate to the Registration Statement, as supplemented by a prospectus
supplement (including any preliminary prospectus supplement) relating to any
Purchased Securities filed pursuant to Rule 424 under the Securities Act, is or
are hereinafter referred to as the "Prospectus." Any reference herein to the
Registration Statement or Prospectus shall be deemed to include all documents
incorporated, or deemed to be incorporated, therein by reference pursuant to
the requirements of Item 12 of Form S-3 under the Securities Act (the
"Incorporated Documents"). For purposes of this Agreement, all references to
the Registration Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system (EDGAR), which EDGAR copy is substantially
identical to the other copies of such material, except to the extent permitted
by Regulation S-T.
The Company understands that the Underwriters propose to make a public
offering of their respective portions of the Purchased Securities, as set forth
in and pursuant to the Prospectus relating thereto.
4. Representations and Warranties. The Company represents and warrants
to each Underwriter that:
(a) The Company has reasonable grounds to believe that it
meets the requirements for the use of Form S-3 under the Securities
Act.
(b) The Registration Statement, at the time it became
effective, and the prospectus contained therein, complied, and on the
date of the Underwriting Agreement and the Closing Date and when any
post-effective amendment to the Registration Statement becomes
effective or any supplement to such prospectus is filed with the
Commission, the Registration Statement, the Prospectus and any such
amendment or supplement, respectively, will comply, in all material
respects with the requirements of the Securities Act and the Rules;
the Incorporated Documents complied and will comply in all material
respects with the requirements of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and the rules and regulations adopted
by the Commission thereunder; each of the Bond Indenture and the Notes
Indenture complied and will comply in all material respects with the
requirements of the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"); and each part of the Registration Statement
and any amendment thereto, at the time it became effective, and the
Prospectus and any amendment or supplement thereto, at the time it was
filed with the Commission pursuant to Rule 424 under the Securities
Act, did not and will not contain an untrue statement of a material
fact or omit to a state a material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances
-6-
<PAGE> 4
under which they were made, not misleading, except that this
representation and warranty does not apply to (i) statements or
omissions in the Registration Statement or Prospectus (or in
amendments or supplements thereto) made in reliance upon information
furnished in writing to the Company by any Underwriter or the
Representatives on behalf of any Underwriter expressly for use
therein, or (ii) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification of either
the Bond Trustee or the Notes Trustee, under the Trust Indenture Act
on Form T-1, except statements or omissions in such Statement made in
reliance upon information furnished in writing to either the Bond
Trustee or the Notes Trustee on behalf of the Company for use therein.
(c) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to include any securities owned or to be owned by
such person in the securities registered pursuant to the Registration
Statement.
(d) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of the Company,
threatened by the Commission.
(e) Neither the Company nor any of its subsidiaries is, or
with the giving of notice or lapse of time or both would be, in
violation of or in default under, its Certificate of Incorporation or
By-Laws or any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them or any of their
respective properties is bound, except for violations and defaults
which individually and in the aggregate are not material to the
Company and its subsidiaries, taken as a whole, or to the holders of
the Purchased Securities; the issue and sale of the Purchased
Securities and the performance by the Company of all of the provisions
of its obligations under the Purchased Securities, the Bond Indenture,
the Notes Indenture and the Underwriting Agreement and the
consummation of the transactions therein contemplated will not
conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other material agreement or instrument to
which the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, nor will any such action result in any violation of the
provisions of the Certificate of Incorporation or the By-Laws of the
Company or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company, its subsidiaries or any of their
respective properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Purchased Securities or the consummation by the Company of the
transactions contemplated by the Underwriting Agreement, the Bond
Indenture or the Notes Indenture, except such consents, approvals,
authorizations, registrations or qualifications as have been obtained
and as may be required under state securities or Blue Sky laws in
-7-
<PAGE> 5
connection with the purchase and distribution of the Purchased
Securities by the Underwriters.
(f) Other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened to which the Company or
any of its subsidiaries is or may be a party or to which any property
of the Company or any of its subsidiaries is or may be the subject
which, if determined adversely to the Company, could individually or
in the aggregate reasonably be expected to have a material adverse
effect on the general affairs, business, prospects, management,
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole, and, to the best
of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others; and
there are no contracts or other documents of a character required to
be filed as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus which are
not filed or described as required.
(g) The Company and each of its material subsidiaries have
valid and sufficient grants, franchises, miscellaneous permits and
easements free from unduly burdensome restrictions, adequate to the
conduct of the respective businesses in the territories in which they
are now conducting such businesses and the ownership of the respective
properties now owned by them.
(h) The Company, with minor and unimportant exceptions, has
good title in fee to all the real property and good and valid title to
all the personal property described or referred to in the granting
clauses of the Bond Indenture as owned by it, other than property
heretofore released from the lien of the Bond Indenture, subject to
the exceptions, reservations, reversions and easements stated in such
granting clauses, except that certain of such properties are subject
to minor irregularities or deficiencies in the record evidence of
title which will not interfere with the proper operation and
development of such properties by the Company; the properties
described or referred to in the granting clauses of the Bond Indenture
as leasehold properties are held under good and valid leases; the
Federal Power Commission (now the Federal Energy Regulatory
Commission) licenses described or referred to in the granting clauses
of the Bond Indenture have been validly issued and, in cases where
originally issued to others than the Company, validly assigned and
transferred to the Company; the electric transmission and distribution
lines of the Company described or referred to in the Bond Indenture
which are located in, on or under public highways, streets and alleys
are so located pursuant to valid rights, franchises or permits held by
the Company, and the Company has good title to such properties,
subject, as to those located in, on or under the streets or alleys of
any municipal corporation of Oregon, to the terms of the Oregon
statute providing that property so located shall be forfeited and
escheated to the municipal corporation upon failure of the Company to
remove such property within one year, or such longer period as may be
granted by the municipal corporation, after expiration of the
franchise which permitted the erection or installation thereof; and
with respect to private property on which the electric transmission
and distribution lines of the Company described
-8-
<PAGE> 6
or referred to in the Bond Indenture are located, the Company in most
cases holds easements granted by the record owners of such lands (such
easements being granted in some instances by the apparent owner
without examination of title).
5. Conditions of the Underwriters' Obligations. The obligations of the
Underwriters hereunder to purchase and pay for the Purchased Securities or, if
this Agreement provides for sales of Debt Securities pursuant to delayed
delivery contracts, the Underwriters' Securities, are subject to the following
conditions:
(a) Within 24 hours after the execution of the Underwriting
Agreement by the Company (or at such later time acceptable to the
Representatives, or if there are none, such firm as may be designated
by a majority in interest of the Underwriters) and on the Closing
Date, the Representatives or such designated firm shall have received
from the independent accountants of the Company who have certified the
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement signed letters
dated the respective dates of delivery, in form and substance
satisfactory to the Representatives or such designated firm and
stating to the effect set forth in Schedules II-A and II-B hereto,
respectively.
(b) No stop order suspending the effectiveness of the
Registration Statement under the Securities Act shall be in effect and
no proceedings for such purpose shall be pending before or threatened
by the Commission and any requests for additional information on the
part of the Commission (to be included in the Registration Statement
or the Prospectus or otherwise) shall have been complied with to the
reasonable satisfaction of the Underwriters or the Representatives.
(c) Subsequent to the execution of this Agreement, there
shall not have been any change in the capital stock or long-term debt
of the Company or any material adverse change in the general affairs,
management, financial position or results of operations of the Company
and its subsidiaries taken as a whole, whether or not arising in the
ordinary course of business, in each case other than as set forth in
or contemplated by the Registration Statement and Prospectus, if in
the reasonable judgment of a majority in interest of the Underwriters
or of the Representatives any such change makes it impracticable or
inadvisable to consummate the sale and delivery of the Purchased
Securities or, if this Agreement provides for sales of Debt Securities
pursuant to delayed delivery contracts, the Underwriters' Securities,
by the Underwriters as contemplated in the Prospectus.
(d) The representations and warranties of the Company
contained herein shall be true and correct on and as of the Closing
Date and the Company shall have performed all covenants and agreements
herein contained to be performed on its part at or prior to the
Closing Date.
(e) The Underwriters or Representatives shall have received
on the Closing Date a certificate, dated the Closing Date, of the
Chief Executive Officer, the President or the
-9-
<PAGE> 7
Treasurer of the Company, which shall certify that (i) no order
suspending the effectiveness of the Registration Statement or the
qualification of the Bond Indenture or the Notes Indenture, as
applicable, has been issued and, to the knowledge of such officer, no
proceedings for such purpose are pending before or threatened by the
Commission, (ii) the representations and warranties of the Company
contained herein are true and correct on and as of the Closing Date,
and (iii) the Company has performed all covenants and agreements
herein contained to be performed on its part at or prior to the
Closing Date.
(f) The Underwriters or the Representatives shall have
received on the Closing Date from Vinson & Elkins L.L.P., counsel to
the Company, an opinion, dated the Closing Date, substantially to the
effect as set forth in Schedule III hereto.
(g) Unless otherwise specified, the Underwriters or the
Representatives shall have received on the Closing Date from Stoel
Rives, LLP, counsel to the Company, an opinion, dated the Closing
Date, substantially to the effect as set forth in Schedule IV hereto.
(h) The Underwriters or the Representatives shall have
received on the Closing Date from Bracewell & Patterson, L.L.P.,
counsel for the Underwriters, an opinion, dated the Closing Date, with
respect to the Company, the Bond Indenture or the Notes Indenture, as
applicable, the Purchased Securities or, if this Agreement provides
for sales of Debt Securities pursuant to delayed delivery contracts,
the Underwriters' Securities, the Registration Statement and
Prospectus and this Agreement. The Company shall have furnished to
counsel for the Underwriters such documents as they may reasonably
request for the purpose of enabling them to render such opinions.
(i) Subsequent to the date of the Underwriting Agreement, no
downgrading shall have occurred in the rating accorded the Company's
debt securities or preferred stock by any "nationally recognized
statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Securities Act,
nor shall there have been any public announcement that any such
organization has under surveillance or review its ratings of any debt
securities or preferred stock of the Company (other than an
announcement with positive implication of a possible upgrading, and no
implication of a possible downgrading of such rating).
6. Covenants. The Company covenants and agrees with the several
Underwriters as follows:
(a) To advise the Underwriters or the Representatives
promptly of any amendment or supplement of the Registration Statement
or the Prospectus which is proposed to be filed and not to effect such
amendment or supplement in a form to which the Underwriters or the
Representatives reasonably object.
(b) To furnish to each of the Underwriters or the
Representatives and to the counsel for the Underwriters, one copy of
the Registration Statement filed pursuant to
-10-
<PAGE> 8
EDGAR, including exhibits and Incorporated Documents, relating to the
Debt Securities in the form it became effective and of all amendments
thereto, including exhibits; and to each such firm and counsel, copies
of each preliminary prospectus supplement and Prospectus and any
amendment or supplement thereto relating to the Debt Securities.
(c) As soon as it is advised thereof, to advise the
Underwriters or the Representatives (i) of the initiation or
threatening by the Commission of any proceedings for the issuance of
any order suspending the effectiveness of the Registration Statement
or the qualification of the Bond Indenture or the Notes Indenture or
preventing or suspending the use of any preliminary prospectus
supplement, (ii) of receipt by it or any representative or attorney of
it of any other communication from the Commission relating to the
Company, the Registration Statement or the Prospectus, or (iii)
suspension of qualification of the Purchased Securities for offering
or sale in any jurisdiction. The Company will make every reasonable
effort to prevent the issuance of an order suspending the
effectiveness of the Registration Statement or the qualification of
the Bond Indenture or the Notes Indenture, and if any such order is
issued, to obtain as soon as possible the lifting thereof.
(d) To deliver to the Underwriters or the Representatives,
without charge, as many conformed copies of the Bond Indenture or the
Notes Indenture, the Registration Statement (excluding exhibits but
including the Incorporated Documents), each preliminary prospectus
supplement, the Prospectus and all amendments and supplements to such
documents as the Underwriters or the Representatives may reasonably
request.
(e) During such period as a prospectus is required by law to
be delivered by an Underwriter or dealer, to deliver, without charge,
to Underwriters and dealers, at such office or offices as the
Underwriters or the Representatives may designate, as many copies of
the Prospectus and any amendment or supplement thereto as the
Underwriters or the Representatives may reasonably request.
(f) During the period in which copies of the Prospectus are
to be delivered as provided in paragraph (e) above, if any event
occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading, or if for any reason it shall be necessary
during such same period to file any document which will be deemed an
Incorporated Document in order to comply with the Exchange Act and the
rules and regulations thereunder, forthwith to prepare, submit to the
Underwriters or the Representatives, file with the Commission and
deliver, without charge to the Underwriters either (i) amendments or
supplements to the Prospectus so that the statements in the
Prospectus, as so amended or supplemented, will not be misleading or
(ii) documents which will effect such compliance. Delivery by
Underwriters of any such amendments or supplements to the Prospectus
or documents shall not constitute a waiver of any of the conditions
set forth in Section 5 hereof.
-11-
<PAGE> 9
(g) To make generally available to the Company's security
holders, as soon as practicable, an earnings statement which satisfies
the provisions of Section 11(a) of the Securities Act.
(h) To cooperate with the Underwriters or the Representatives
in qualifying the Purchased Securities for offer and sale under the
securities or "blue sky" laws of such jurisdictions as the
Underwriters or the Representatives may reasonably request; provided
that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified, to take
any action which would subject it to service of process in suits
(other than those arising out of the offering or sale of the Purchased
Securities) in any jurisdiction where it is not now so subject,
qualify in any jurisdiction as a broker-dealer or subject itself to
any taxing authority where it is not now so subject.
(i) Unless otherwise specified, to endeavor to obtain as
promptly as practicable the listing of the Purchased Securities on the
New York Stock Exchange and, if the Purchased Securities are of a
class or series of securities which is already listed on the New York
Stock Exchange or any other stock exchange, to effect the listing of
the Purchased Securities on such stock exchanges prior to the Closing
Date.
(j) During the period of five years from the date hereof, to
supply to the Representatives, if any, and to each other Underwriter
who may so request in writing, copies of such financial statements and
other periodic and special reports as the Company may from time to
time distribute generally to its lenders or to the holders of any
class of its securities registered under Section 12 of the Exchange
Act and to furnish to the Underwriters or the Representatives a copy
of each annual or other report it shall be required to file with the
Commission.
(k) To pay all of its own expenses incurred in connection
with the performance of its obligations under this Agreement, and the
Company will pay, or reimburse if paid by the Underwriters or the
Representatives, whether or not the transactions contemplated hereby
are consummated or this Agreement is terminated, all reasonable costs
and expenses incident to the performance of the obligations of the
Company under this Agreement, including those relating to (i) the
preparation, printing and filing of the Registration Statement and
exhibits thereto, each preliminary prospectus, any preliminary
prospectus supplement, the Prospectus, all amendments and supplements
to the Registration Statement and the Prospectus, the printing of the
Bond Indenture and the Notes Indenture and the printing or typing of
the Underwriting Agreement (including any Agreement Among
Underwriters), (ii) the issuance, preparation and delivery of the
Purchased Securities to the Underwriters, and if applicable, those
entering into delayed delivery contracts with the Company, including
the costs and expenses of any Bond Trustee and Notes Trustee and any
agent thereof, including any fees and disbursements of counsel
therefor, (iii) the registration or qualification of the Purchased
Securities for offer and sale under the securities or "blue sky" laws
of the various jurisdictions referred to in paragraph (h) above,
including the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and the preparation
-12-
<PAGE> 10
and printing or typing of legal investment and preliminary and
supplementary "blue sky" memoranda, (iv) the furnishing to the
Underwriters and the Representatives, if any, of copies of the
Prospectus and all amendments or supplements to the Prospectus, and of
the several documents required by this Section to be so furnished,
including costs of shipping and mailing, (v) the listing of the
Purchased Securities on any securities exchange, (vi) the rating of
the Purchased Securities by rating agencies, and (vii) the furnishing
to the Underwriters and the Representatives, if any, of copies of all
reports and information required by paragraph (j) above, including
costs of shipping and mailing.
(l) During the period beginning on the date of the
Underwriting Agreement and continuing to the date specified in the
Underwriting Agreement, not to offer, sell, contract to sell or
otherwise dispose of any securities of the Company substantially
similar to the Purchased Securities, without the prior written consent
of a majority in interest of the Underwriters or the Representatives.
7. Indemnification.
(a) The Company will indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), 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 or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), or the omission
or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue
statement or omission; provided that (subject to Section 7(d) below)
any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as
incurred (including, subject to Section 7(c) hereof, the fees and
disbursements of counsel chosen by the Underwriters), reasonably
incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such
-13-
<PAGE> 11
alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above; provided, however, that
the indemnity set forth in this Section 7(a) shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of
any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any
Underwriter expressly for use in the Registration Statement (or any
amendment thereto), or any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto). The foregoing indemnity with
respect to any untrue statement or alleged untrue statement contained
in or omission or alleged omission from a preliminary prospectus shall
not inure to the benefit of the Underwriter (or any person controlling
such Underwriter) from whom the person asserting any loss, liability,
claim, damage or expense purchased any of the Purchased Securities
which are the subject thereof if the Company shall sustain the burden
of proving that such person was not sent or given a copy of the
Prospectus (or the Prospectus as amended or supplemented) at or prior
to the written confirmation of the sale of such Purchased Securities
to such person and the untrue statement contained in or omission from
such preliminary prospectus was corrected in the Prospectus (or the
Prospectus as amended or supplemented) and the Company had previously
furnished copies thereof to such Underwriter.
(b) Each Underwriter, severally in proportion to its
respective purchase obligation and not jointly, agrees to indemnify
and hold harmless the Company, directors of the Company, the officers
of the Company who signed the Registration Statement, and each person,
if any, who controls the Company within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, against any and
all loss, liability, claim, damage and expense described in the
indemnity contained in Section 7(a), as incurred, but only with
respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any
amendment thereto), or any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of such Underwriter expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or
the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the
extent it is not materially prejudiced as a result thereof and in any
event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 7(a) above, counsel to the
indemnified parties shall be selected by the Underwriters, and, in the
case of parties indemnified pursuant to Section 7(b) above, counsel to
the indemnified parties shall be selected by the Company, provided
that 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
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<PAGE> 12
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 which are different from or in
addition to those available to such indemnifying party. 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. An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent
of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel)
separate from their own 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 the indemnified parties, settle or compromise
or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under
this Section 7 or Section 8 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out of
such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for
reasonable fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature
contemplated by Section 7(a)(ii) effected without its written consent
if (i) such settlement is entered into more than 45 days after receipt
by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered
into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of
such settlement. Notwithstanding the immediately preceding sentence,
if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, an indemnifying party shall not be liable for any
settlement of the nature contemplated by Section 7(a)(ii) effected
without its consent if such indemnifying party (i) reimburses such
indemnified party in accordance with such request to the extent it
considers such request to be reasonable and (ii) provides written
notice to the indemnified party substantiating the unpaid balance as
unreasonable, in each case prior to the date of such settlement.
8. Contribution.
If the indemnification provided for in Section 7 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims,
-15-
<PAGE> 13
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the
offering of the Purchased Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Purchased
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Purchased Securities pursuant to this Agreement (before deducting expenses but
after deducting the total underwriting commission received by the Underwriters)
received by the Company, and the total underwriting commission received by the
Underwriters, in each case as set forth on the cover of the Prospectus, bear to
the aggregate initial public offering price of the Purchased Securities as set
forth on such cover. The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
8. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 8 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 8, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Purchased Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of any such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this Section
8, each person, if any, who controls an Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as such Underwriter; and each director of the
Company, each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Company. The
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<PAGE> 14
Underwriters' respective obligations to contribute pursuant to this Section 8
are several in proportion to their respective underwriting obligations and not
joint.
9. Termination. This Agreement may be terminated by a majority in
interest of the Underwriters or by the Representatives by notifying the Company
at any time
(a) at or prior to the Closing Date if, in the judgment of
such Underwriters or the Representatives, sale and delivery of the
Purchased Securities or, if this Agreement provides for the sale of
Debt Securities pursuant to delayed delivery contracts, the
Underwriters' Securities, as contemplated in the Prospectus is
rendered impracticable or inadvisable because (i) additional material
governmental restrictions, not in force and effect on the date hereof,
shall have been imposed upon trading in securities generally or
minimum or maximum prices shall have been generally established on the
New York Stock Exchange or on the American Stock Exchange, or trading
in securities generally shall have been suspended or materially
limited on either such Exchange or a general banking moratorium shall
have been established by Federal or New York authorities, (ii) any
event shall have occurred or shall exist which makes untrue or
incorrect in any material respect any statement or information
contained in the Registration Statement or Prospectus or which is not
reflected in the Registration Statement or Prospectus but should be
reflected therein in order to make the statements or information
contained therein not misleading in any material respect, or (iii) any
material adverse change shall have occurred in the financial markets
in the United States or elsewhere or a war or outbreak of hostilities
involving the United States or other calamity or crisis shall have
occurred or shall have escalated to such an extent as to affect
adversely the marketability of the Purchased Securities or, if this
Agreement provides for the sale of Debt Securities pursuant to delayed
delivery contracts, the Underwriters' Securities, or
(b) at or prior to the Closing Date, if any of the conditions
specified in Section 5 hereof shall not have been fulfilled when and
as required by this Agreement.
If this Agreement is terminated pursuant to any of the provisions
hereof, except as otherwise provided herein, the Company shall not be under any
liability to any Underwriter and no Underwriter shall be under any liability to
the Company except that (a) if this Agreement is terminated by the Underwriters
or the Representatives because of any failure or refusal on the part of the
Company to comply with the terms or to fulfill any of the conditions of this
Agreement, the Company will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including the fees and disbursement of their counsel)
reasonably incurred by them and (b) no Underwriter who shall have failed or
refused to purchase the Purchased Securities or, if this Agreement provides for
sales of Debt Securities pursuant to delayed delivery contracts, the
Underwriters' Securities, agreed to be purchased by it hereunder, without some
reason sufficient hereunder to justify its cancellation or termination of its
obligations hereunder, shall be relieved of liability to the Company or the
other Underwriters for damages occasioned by its default.
-17-
<PAGE> 15
10. Default of Underwriters. If one or more of the Underwriters shall
fail (other than for a reason sufficient to justify the termination of this
Agreement) to purchase on the Closing Date the principal amount of Purchased
Securities or, if this Agreement provides for sales of Debt Securities pursuant
to delayed delivery contracts, the Underwriters' Securities, agreed to be
purchased by such Underwriter or Underwriters, the Representatives, or if there
are none, such firm as may be designated by a majority in interest of the
Underwriters may find one or more substitute underwriters to purchase such
Purchased Securities or, if this Agreement provides for sales of Debt
Securities pursuant to delayed delivery contracts, the Underwriters'
Securities, or make such other arrangements as they may deem advisable or one
or more of the remaining Underwriters may agree to purchase such Purchased
Securities or, if this Agreement provides for sales of Debt Securities pursuant
to delayed delivery contracts, the Underwriters' Securities, in such
proportions as may be approved by the Representatives or such designated firm,
in each case upon the terms herein set forth. If no such arrangements have been
made within 24 hours after the Closing Date, and
(a) the aggregate principal amount or number of shares, as
the case may be, of Purchased Securities or, if this Agreement
provides for sales of Debt Securities pursuant to delayed delivery
contracts, the Underwriters' Securities, to be purchased by the
defaulting Underwriter or Underwriters shall not exceed 10% of the
total principal amount or number of shares, as the case may be, of
Purchased Securities or, if this Agreement provides for sales of Debt
Securities pursuant to delayed delivery contracts, the Underwriters'
Securities, each of the non-defaulting Underwriters shall be obligated
to purchase such Purchased Securities or, if this Agreement provides
for sales of Debt Securities pursuant to delayed delivery contracts,
the Underwriters' Securities, on the terms herein set forth in
proportion to their respective obligations hereunder, or
(b) the aggregate principal amount or number of shares, as
the case may be, of Purchased Securities or, if this Agreement
provides for sales of Debt Securities pursuant to delayed delivery
contracts, the Underwriters' Securities, to be purchased by the
defaulting Underwriter or Underwriters shall exceed 10% of the total
principal amount or number of shares, as the case may be, of Purchased
Securities or, if this Agreement provides for sales of Debt Securities
pursuant to delayed delivery contracts, the Underwriters' Securities,
the Company shall be entitled to an additional period of 24 hours
within which to find one or more substitute underwriters satisfactory
to the Representatives, or if there are none, to such designated firm
to purchase such Purchased Securities or, if this Agreement provides
for sales of Debt Securities pursuant to delayed delivery contracts,
the Underwriters' Securities, upon the terms set forth herein.
In any such case, either the Representatives, or if there are none,
such designated firm or the Company shall have the right to postpone the
Closing Date for a period of not more than seven business days in order that
necessary changes and arrangements may be effected. If the aggregate principal
amount or number of shares, as the case may be, of the Purchased Securities or,
if this Agreement provides for sales of Debt Securities pursuant to delayed
delivery contracts, the Underwriters' Securities, to be purchased by such
defaulting Underwriters shall exceed 10% of the total principal amount or
number of shares, as the case may be, of Purchased Securities or, if this
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<PAGE> 16
Agreement provides for sales of Debt Securities pursuant to delayed delivery
contracts, the Underwriters' Securities, and neither the non-faulting
Underwriters nor the Company shall make arrangements pursuant to this Section
10 within the period stated for the purchase of the Purchased Securities or, if
this Agreement provides for sales of Debt Securities pursuant to delayed
delivery contracts, the Underwriters' Securities, which the defaulting
Underwriter or Underwriters agreed to purchase, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter and without
liability on the part of the Company, except, in each case, as provided in
Section 6(k), 7, 8 and 9 hereof. The provisions of this Section 10 shall not in
any way affect the liability of any defaulting Underwriter to the Company or
the non-defaulting Underwriters arising out of such default. A substitute
underwriter hereunder shall become an Underwriter for all purposes of this
Agreement.
11. Miscellaneous. The reimbursement, indemnification and contribution
agreements contained in Sections 6(k), 7 and 8 hereof and the representations,
warranties, covenants and agreements of the Company in this Agreement shall
remain in full force and effect regardless of (a) any termination of this
Agreement, (b) any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any officer, director or controlling
person and (c) delivery of and payment for Purchased Securities under this
Agreement.
This Agreement has been and is made solely for the benefit of the
Underwriters and the Company and their respective successors and assigns, and,
to the extent expressed herein, for the benefit of persons controlling any of
the Underwriters or the Company, directors and officers of the Company, and
their respective successors and assigns, and no other person, partnership,
association or corporation shall acquire or have any right under or by virtue
of this Agreement. The term "successors and assigns" shall not include any
purchaser of Purchased Securities, Underwriters' Securities or Contract
Securities merely because of such purchase.
In dealings hereunder, the Representatives, if designated, shall act
on behalf of each of the Underwriters, and the parties hereto shall be entitled
to act and rely upon any statement, request, notice or agreement on behalf of
any Underwriter made or given by such firm as the Representatives may designate
to the Company.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
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<PAGE> 17
SCHEDULE I
DELAYED DELIVERY CONTRACT
----------, -----
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Portland General
Electric Company, an Oregon corporation (the "Company"), and the Company agrees
to sell to the undersigned
-----------------------------------------------------
- --------------------------------------------------------------------------------
$________________ principal amount of the Company's [state title of issue] (the
"Securities"), offered by the Company's Prospectus dated _________, _____ and
Prospectus Supplement dated __________, _____, receipt of copies of which are
hereby acknowledged, at a purchase price equal to __% of the principal amount
thereof plus accrued interest from ____________, _____ to the date or dates for
payment and delivery thereof and on the further terms and conditions set forth
in this contract. The undersigned does not contemplate selling Securities prior
to making payment therefor.
The undersigned will purchase from the Company Securities in the
principal amounts and on the delivery date or dates set forth below:
<TABLE>
<CAPTION>
Principal Plus Accrued
Delivery Date Amount Interest From:
- ------------- ------ --------------
<S> <C>
$
$
$
</TABLE>
Each such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date".
Payment for the Securities which the undersigned has agreed to
purchase on each Delivery Date shall be made to the Company in immediately
available funds at the office of _____________, New York, New York, at 10:00
a.m. (New York time) on the Delivery Date, upon delivery to the undersigned of
the Securities to be purchased by the undersigned on the Delivery Date, in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than
five full business days prior to the Delivery Date. If no such request is
received, the Securities will be registered in the name of the undersigned and
issued in a denomination equal to the aggregate principal amount of Securities
to be purchased by the Delivery Date.
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<PAGE> 18
By the execution hereof, the undersigned represents and warrants to
the Company that (i) all necessary corporate action for the due execution and
delivery of this contract and payment for and purchase of the Securities has
been taken by it, (ii) no further authorization or approval of any governmental
or other regulatory authority is required for such execution, delivery, payment
or purchase, and (iii) its investment in the Securities is not, as of the date
hereof, prohibited under the laws of any jurisdiction to which the undersigned
is subject and which govern such investment.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have taken place to the underwriters (the "Underwriters") named in the
Prospectus Supplement referred to above, of such part of the Securities as is
to be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied by a copy of the
opinion of counsel for the Company delivered to the Underwriters in connection
therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other delayed delivery contract shall not relieve the
undersigned of its obligations under this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first-come, first-served basis.
If this contract is acceptable to the Company, it is requested that
the Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This
will become a binding contract, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
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<PAGE> 19
THIS CONTRACT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
Yours very truly,
-----------------------------------------
(Purchaser)
By:
--------------------------------------
Name:
Title:
Accepted:
PORTLAND GENERAL ELECTRIC COMPANY
By:
-----------------------------------
Name:
Title:
----------------------------------------------
----------------------------------------------
(Address)
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name, telephone number and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed
are as follows: (Please print.)
Telephone Number
Name (Including Area Code) Dept.
- ---- --------------------- -----
-22-
<PAGE> 20
SCHEDULE II-A
[FORM OF FIRST LETTER OF ACCOUNTANTS
TO BE DELIVERED PURSUANT TO SECTION 5(a)]
(i) They are independent public accountants within the meaning of the
Securities Act and the Exchange Act and the respective applicable published
rules and regulations thereunder and the answer to item 10 of Form S-3 set
forth in the Registration Statement is correct insofar as it relates to them;
(ii) In their opinion the audited financial statements and financial
statement schedules included or incorporated in the Prospectus and reported on
by them comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the published rules and
regulations thereunder;
(iii) On the basis of a reading of the unaudited financial statements,
the unaudited notes to the audited financial statements and the supplementary
financial information incorporated in the Prospectus and of the latest
unaudited financial statements made available by the Company and its
subsidiaries; carrying out certain specified procedures (but not an examination
in accordance with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the comments set
forth in such letter; a reading of the minutes of the meetings of the
stockholders, directors and executive committees of the Company and certain of
its subsidiaries; and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to the date of the latest
audited financial statements incorporated in the Prospectus, nothing came to
their attention which caused them to believe that:
(1) the unaudited notes to the audited financial statements
and the supplementary financial information incorporated in the
Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and with the
published rules and regulations of the Commission thereunder; or
(2) the unaudited financial statements included or
incorporated in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the
Exchange Act and with the published rules and regulations thereunder;
and said unaudited financial statements are not presented in
conformity with generally accepted accounting principles applied on a
basis substantially consistent with that of the audited financial
statements incorporated in the Prospectus; and
(iv) They have performed certain other specified procedures as a
result of which they determined that certain information (if any) specified by
the Representatives or, if there are none, such firm as may be designated by a
majority in interest of the Underwriters, of an accounting,
-23-
<PAGE> 21
financial or statistical nature (which is limited to accounting, financial or
statistical information derived from the general accounting records of the
Company) incorporated in the Prospectus, agrees with the accounting records of
the Company and its subsidiaries, excluding any questions of legal
interpretation.
-24-
<PAGE> 22
SCHEDULE II-B
[FORM OF SECOND LETTER TO ACCOUNTANTS
TO BE DELIVERED PURSUANT TO SECTION 5(a)]
(i) On the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries; carrying out
certain specified procedures (but not an examination in accordance with
generally accepted auditing standards) which would not necessarily reveal
matters of significance with respect to the comments set forth in such letter;
a reading of the minutes of the meetings of the stockholders, directors and
executive committees of the Company and certain of its subsidiaries; and
inquiries of certain officials of the Company who have responsibility for
financial and accounting matters of the Company and its subsidiaries as to
transactions and events subsequent to the date of the latest financial
statements included or incorporated in the Prospectus, nothing came to their
attention which caused them to believe that: (a) with respect to the period
subsequent to the date of the latest consolidated balance sheet included or
incorporated in the Prospectus, there were, at a subsequent specified date not
more than five business days prior to the Closing Date, any change in the
capital stock or increases in short-term debt or long-term debt of the Company
and consolidated subsidiaries or any decreases in the consolidated net current
assets or net assets as compared with the amounts shown on the latest
consolidated balance sheet included or incorporated in the Prospectus; or (b)
for the period from the date of the latest financial statements included or
incorporated in the Prospectus to such specified date there were any decreases,
as compared with the corresponding period in the preceding year, in
consolidated operating revenues, net income or earnings per common share,
except in all instances for changes or decreases which the Prospectus discloses
have occurred or may occur or which are set forth in such letter; and
(ii) They have performed certain other specified procedures as a
result of which they determined that certain information (if any) specified by
the Representatives or, if, there are none, such firm as may be designated by a
majority in interest of the Underwriters, of an accounting, financial or
statistical nature (which is limited to accounting, financial or statistical
information derived from the general accounting records of the Company)
included in the Prospectus and not covered by their first letter delivered
pursuant to Section 5(a), agrees with the accounting records of the Company and
its subsidiaries, excluding any questions of legal interpretation.
-25-
<PAGE> 23
SCHEDULE III
[FORM OF OPINION OF VINSON & ELKINS L.L.P., COUNSEL TO THE COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(f)]
(i) The Company is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Oregon, is duly
qualified to do business as a foreign corporation in the states of [enumerating
such states], has full corporate power and authority to own its properties and
to conduct its business as such business is described in the Prospectus , and
neither the character of the properties owned by it nor the nature of the
business transacted by it makes necessary its licensing or qualification as a
foreign corporation in any other state or jurisdiction;
(ii) Each of the Company's material subsidiaries is a corporation duly
incorporated and validly existing in good standing under the laws of its
jurisdiction of incorporation, and has full corporate power and authority to
own its properties and to conduct its business as such business is described in
the Prospectus;
(iii) The Underwriting Agreement has been duly authorized, executed
and delivered by the Company;
(iv) The Bond Indenture or the Notes Indenture, as the case may be,
has been duly authorized and validly executed, acknowledged and delivered by
the Company and, assuming due authorization, execution and delivery by the Bond
Trustee or the Notes Trustee, as the case may be, constitutes a valid and
binding agreement of the Company enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or similar laws relating to or affecting
creditors' rights generally and to general equity principles;
(v) In the event any of the Purchased Securities are to be purchased
pursuant to Delayed Delivery Contracts, each of such Delayed Delivery Contracts
has been duly authorized, executed and delivered by the Company and, assuming
due authorization, execution and delivery by the purchaser named therein,
constitutes a valid and binding agreement of the Company enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or similar laws
relating to or affecting creditors' rights generally and to general equity
principles;
(vi) The Purchased Securities are in the form contemplated by the Bond
Indenture or the Notes Indenture, as the case may be, and have been duly
authorized by all necessary corporate action on the part of the Company; the
Purchased Securities or, if the Underwriting Agreement provides for sales of
Debt Securities pursuant to delayed delivery contracts, the Underwriters'
Securities, when executed and authenticated as specified in the Bond Indenture
or the Notes Indenture, as the case may be (which facts, such counsel may
state, such counsel has not determined by an inspection of
-26-
<PAGE> 24
individual Purchased Securities or, if the Underwriting Agreement provides for
sales of Debt Securities pursuant to Delayed Delivery Contracts, the
Underwriters' Securities), and issued and delivered against payment pursuant to
the Underwriting Agreement, will be valid and binding obligations of the
Company entitled to the benefits of the Bond Indenture or the Notes Indenture,
as the case may be, and enforceable against the Company in accordance with
their respective terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or similar laws relating to or
affecting creditors' rights generally and to general equity principles; the
Contract Securities, if any, when executed, authenticated, issued and delivered
pursuant to the Bond Indenture or the Notes Indenture, as the case may be
(which facts, such counsel may state, such counsel has not determined by an
inspection of individual Contract Securities), and delayed delivery contracts,
if any, will be valid and binding obligations of the Company entitled to the
benefits of the Bond Indenture or the Notes Indenture, as the case may be, and
enforceable against the Company in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or similar laws relating to or affecting creditors' rights generally
and to general equity principles.
(vii) All authorizations, approvals, consents or other orders of any
governmental authority or agency required in connection with the authorization,
issuance and sale of the Purchased Securities by the Company pursuant to the
Underwriting Agreement have been obtained and continue in full force and
effect, other than authorizations, approvals, consents or other orders of state
securities commissions, authorities or agencies, with respect to which such
counsel need express no opinion;
(viii) The Bond Indenture or the Notes Indenture, as the case may be,
the Purchased Securities and the Delayed Delivery Contracts, if any, conform in
all material respects to the descriptions thereof in the Prospectus;
(ix) The Bond Indenture or the Notes Indenture, as the case may be,
has been qualified under the Trust Indenture Act;
(x) The Registration Statement has become effective under the
Securities Act and, to such counsel's knowledge and information, no stop order
suspending the effectiveness of the Registration Statement has been issued
under the Securities Act and no proceedings therefor have been initiated or
threatened by the Commission;
(xi) The Registration Statement and the Prospectus and any amendments
and supplements thereto made by the Company prior to the Closing Date (except
for the reports of experts pertaining to the financial statements and other
financial data included therein, as to which such counsel need express no
opinion, and exclusive of the documents incorporated by reference therein)
comply as to form in all material respects with the requirements of the
Securities Act and the Trust Indenture Act and the rules and regulations
thereunder;
-27-
<PAGE> 25
(xii) Each document filed with the Commission pursuant to the Exchange
Act (except for the reports of experts pertaining to the financial statements
and other financial data included in such documents, as to which such counsel
need express no opinion) which is incorporated by reference in the Prospectus
complied as to form, when so filed, in all material respects with the
requirements of the particular form of the Commission upon which it was filed;
(xiii) The execution and delivery of the Underwriting Agreement, each
of the Delayed Delivery Contracts, if any, and the Bond Indenture or the Notes
Indenture, as the case may be, and the consummation of the transactions therein
contemplated and the compliance with the terms of the Underwriting Agreement,
each of the Delayed Delivery Contracts, if any, and the Bond Indenture or the
Notes Indenture, as the case may be, do not and will not conflict with, violate
or result in a breach of any of the terms or provisions of, or constitute a
default under, the Certificate of Incorporation, as amended, or By-laws, as
amended, of the Company or any material subsidiary, or any indenture, mortgage
or other agreement listed on Exhibit A to this opinion, or to such counsel's
knowledge, any existing applicable law, rule, regulation, judgment, order or
decree of any domestic government, governmental instrumentality or court having
jurisdiction over the Company or any such subsidiary or any of their respective
properties;
(xiv) To such counsel's knowledge, no action, suit or proceeding at
law or in equity, or before or by any federal, state or other commission, board
or administrative agency, is pending or threatened against the Company or any
of the Company's material subsidiaries which would be required to be described
in the Prospectus and is not described as required;
(xv) The Company is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended; and
(xvi) The Company is not subject to, or is exempt from, regulation as
a "holding company" under the Public Utility Holding Company Act of 1935, as
amended.
Such counsel's opinion shall also state that such counsel has
participated in the preparation of the Registration Statement and the
Prospectus and discussed with management of the Company and representatives of
its accountants the contents of the Registration Statement and the Prospectus.
Although such counsel has not independently verified, and is not passing upon
and does not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained therein, nothing has come to such
counsel's attention that has caused them to believe that the Registration
Statement (except for the reports of experts pertaining to the financial
statements and other financial data included in the Registration Statement, as
to which such counsel need express no belief) 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 for the reports of experts pertaining to the financial
statements and other financial data included in the Prospectus, as to which
such counsel need express no belief), at the date of the prospectus supplement
relating to the Purchased Securities filed pursuant to Rule 424 under the
-28-
<PAGE> 26
Securities Act or at the Closing Date contained or contains an untrue statement
of a material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
-29-
<PAGE> 27
SCHEDULE IV
[FORM OF OPINION OF STOEL RIVES LLP, COUNSEL TO THE COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(g)]
(i) The Bond Indenture constitutes a valid first security interest on
all of the right, title and interest of the Company in and to the personal
properties and fixtures that are described in the granting clauses of the Bond
Indenture and that are intended to be subject to the lien thereof, subject only
to permitted encumbrances (as defined in the Bond Indenture);
(ii) The Bond Indenture constitutes a valid first mortgage lien on all
of the right, title and interest of the Company in and to all of the real
properties and interests in real properties that are described in the Bond
Indenture and that are intended to be subject to the lien thereof, subject only
to permitted encumbrances (as defined in the Bond Indenture) and to minor
restrictions, exceptions and reservations in conveyances, and defects which do
not in any material way impair the security afforded by the Bond Indenture;
(iii) The descriptions of the properties of the Company as set forth
in the Bond Indenture are legally sufficient to have caused the lien created by
the Bond Indenture to attach to such properties;
(iv) The provisions of the Bond Indenture for the extension of the
lien thereof to property and interests therein acquired by the Company after
the date of execution of the original Bond Indenture are effective to extend
the lien of the Bond Indenture to such properties and interests as a valid
first security interest or valid first mortgage lien (as the case may be) as
security for the Mortgage Bonds, subject to no prior liens other than permitted
encumbrances (as defined in the Bond Indenture) and subject only to minor
restrictions, exceptions and reservations in conveyances, and defects which do
not in any material way impair the security afforded by the Bond Indenture,
without the execution by the Company of any supplemental indenture or other
instrument specifically extending the lien of the Bond Indenture to such
property and interests;
(v) The Bond Indenture has been duly recorded and filed (or submitted
for recordation and filing with all fees and taxes therefore paid) as a
mortgage and security interest on the properties of the Company described in
the Bond Indenture and intended to be subject to the lien thereof, in such
manner and in all counties in which such properties are situated and in such
manner and in such other places as required by law to preserve and protect the
rights of the Bondholders and the Trustee, and no re-recording or re-filing is
necessary to preserve the lien established thereby; and
(vi) The Company has the power of eminent domain as a utility under
the laws where its properties are located.
-30-
<PAGE> 1
EXHIBIT 4(c)
==============================================================================
PORTLAND GENERAL ELECTRIC COMPANY
TO
HSBC BANK USA
(FORMERLY MARINE MIDLAND BANK)
(FORMERLY THE MARINE MIDLAND TRUST
COMPANY OF NEW YORK)
Trustee.
----------------
SUPPLEMENTAL INDENTURE
Dated _____, 199_
----------------
$______ First Mortgage Bonds,
___% Series due _____
Supplemental to Indenture of Mortgage and Deed of Trust,
dated July 1, 1945 of Portland General Electric Company.
==============================================================================
<PAGE> 2
___________________ SUPPLEMENTAL INDENTURE, dated __________, 199__
made by and between Portland General Electric Company, an Oregon corporation
(hereinafter called the "Company"), party of the first part, and HSBC Bank
(formerly Marine Midland Bank) (formerly The Marine Midland Trust Company of New
York), a New York banking corporation and trust company (hereinafter called the
"Trustee"), party of the second part.
WHEREAS, the Company has heretofore executed and delivered its
Indenture of Mortgage and Deed of Trust (herein sometimes referred to as the
"Original Indenture"), dated July 1, 1945, to the Trustee to secure an issue of
First Mortgage Bonds of the Company; and
WHEREAS, Bonds in the aggregate principal amount of $34,000,000 have
heretofore been issued under and in accordance with the terms of the Original
Indenture as Bonds of an initial series designated "First Mortgage Bonds, 3-1/8%
Series due 1975" (herein sometimes referred to as the "Bonds of the 1975
Series"); and
WHEREAS, the Company has heretofore executed and delivered to the
Trustee several supplemental indentures which provided, among other things, for
the creation or issuance of several new series of First Mortgage Bonds under the
terms of the Original Indenture as follows:
<TABLE>
<CAPTION>
SUPPLEMENTAL INDENTURE DATED SERIES DESIGNATION PRINCIPAL AMOUNT
- ----------------------------- ------- --------------------- ---------------------
<S> <C> <C> <C> <C>
First 11-1-47 3-1/2% Series due 1977 $ 6,000,000 (1)
Second 11-1-48 3-1/2% Series due 1977 4,000,000 (1)
Third 5-1-52 3-1/2% Second Series due 1977 4,000,000 (1)
Fourth 11-1-53 4-1/8% Series due 1983 8,000,000 (2)
Fifth 11-1-54 3-3/8% Series due 1984 12,000,000 (1)
Sixth 9-1-56 4-1/4% Series due 1986 16,000,000 (1)
Seventh 6-1-57 4-7/8% Series due 1987 10,000,000 (1)
Eighth 12-1-57 5-1/2% Series due 1987 15,000,000 (3)
Ninth 6-1-60 5-1/4% Series due 1990 15,000,000 (1)
Tenth 11-1-61 5-1/8% Series due 1991 12,000,000 (1)
Eleventh 2-1-63 4-5/8% Series due 1993 15,000,000 (1)
Twelfth 6-1-63 4-3/4% Series due 1993 18,000,000 (1)
Thirteenth 4-1-64 4-3/4% Series due 1994 18,000,000 (1)
Fourteenth 3-1-65 4.70% Series due 1995 14,000,000 (1)
Fifteenth 6-1-66 5-7/8% Series due 1996 12,000,000 (1)
Sixteenth 10-1-67 6.60% Series due October 1, 1997 24,000,000 (1)
Seventeenth 4-1-70 8-3/4% Series due April 1, 1977 20,000,000 (1)
Eighteenth 11-1-70 9-7/8% Series due November 1, 2000 20,000,000 (4)
Nineteenth 11-1-71 8% Series due November 1, 2001 20,000,000 (4)
Twentieth 11-1-72 7-3/4% Series due November 1, 2002 20,000,000
Twenty-first 4-1-73 7.95% Series due April 1, 2003 35,000,000
Twenty-second 10-1-73 8-3/4% Series due October 1, 2003 17,000,000 (4)
Twenty-third 12-1-74 10-1/2% Series due December 1, 1980 40,000,000 (1)
Twenty-fourth 4-1-75 10% Series due April 1, 1982 40,000,000 (1)
Twenty-fifth 6-1-75 9-7/8% Series due June 1, 1985 27,000,000 (1)
Twenty-sixth 12-1-75 11-5/8% Series due December 1, 2005 50,000,000 (4)
Twenty-seventh 4-1-76 9-1/2% Series due April 1, 2006 50,000,000 (4)
Twenty-eighth 9-1-76 9-3/4% Series due September 1, 1996 62,500,000 (4)
Twenty-ninth 6-1-88 8-3/4% Series due June 1, 2007 50,000,000 (4)
Thirtieth 10-1-78 9.40% Series due January 1, 1999 25,000,000 (4)
Thirty-first 11-1-78 9.80% Series due November 1, 1998 50,000,000 (4)
Thirty-second 2-1-80 13-1/4% Series due February 1, 2000 55,000,000 (4)
Thirty-third 8-1-80 13-7/8% Series due August 1, 2010 75,000,000 (4)
</TABLE>
-2-
<PAGE> 3
<TABLE>
<CAPTION>
SUPPLEMENTAL INDENTURE DATED SERIES DESIGNATION PRINCIPAL AMOUNT
- ----------------------------- ------- --------------------- ---------------------
<S> <C> <C> <C> <C>
Thirty-sixth 10-1-82 13-1/2% Series due October 1, 2012 75,000,000 (4)
Thirty-seventh 11-15-84 11-5/8% Extendable Series A due 75,000,000 (4)
November 15, 1999
Thirty-eighth 6-1-85 10-3/4% Series due June 1, 1995 60,000,000 (4)
Thirty-ninth 3-1-86 9-5/8% Series due March 1, 2016 100,000,000 (4)
Fortieth 10-1-90 Medium Term Note Series 200,000,000
Forty-first 12-1-91 Medium Term Note Series I 150,000,000
Forty-second 4-1-93 7-3/4% Series due April 15, 2023 150,000,000
Forty-third 7-1-93 Medium Term Notes Series II 75,000,000
Forty-fourth 8-1-94 Medium Term Notes Series III 75,000,000
Forty-fifth 5-1-95 Medium Term Notes Series IV 75,000,000
Forty-sixth 8-1-96 Medium Term Notes Series V 50,000,000
</TABLE>
(1) Paid in full at maturity.
(2) This entire issue of Bonds was redeemed out of proceeds from the sale of
First Mortgage Bonds, 3-3/8% Series due 1984.
(3) This entire issue of Bonds was redeemed out of proceeds from the sale of
First Mortgage Bonds, 4-5/8% Series due 1993.
(4) Redeemed in full prior to maturity.
which bonds are sometimes referred to herein as the "Bonds of the 1977 Series",
"Bonds of the 1977 Second Series", "Bonds of the 1983 Series", "Bonds of the
1984 Series", "Bonds of the 1986 Series", "Bonds of the 4-7/8% Series due 1987",
"Bonds of the 5-1/2% Series due 1987", "Bonds of the 1990 Series", "Bonds of the
1991 Series", "Bonds of the 4-5/8% Series due 1993", "Bonds of the 4-3/4% Series
due 1993", "Bonds of the 1994 Series", "Bonds of the 1995 Series", "Bonds of the
1996 Series", "Bonds of the 1997 Series", "Bonds of the 1977 Third Series",
"Bonds of the 2000 Series", "Bonds of the 2001 Series", "Bonds of the 2002
Series", "Bonds of the 2003 Series", "Bonds of the 2003 Second Series", "Bonds
of the 1980 Series", "Bonds of the 1982 Series", "Bonds of the 1985 Series",
"Bonds of the 2005 Series", "Bonds of the 2006 Series", "Bonds of the 1996
Second Series", "Bonds of the 2007 Series", "Bonds of the 1999 Series", "Bonds
of the 1998 Series", "Bonds of the 2000 Second Series", "Bonds of the 2010
Series", "Bonds of the 2012 Series", "Bonds of the Extendable Series A", "Bonds
of the 1995 Second Series", "Bonds of the 2016 Series", "Bonds of the Medium
Term Note Series", "Bonds of the Medium Term Note Series I", "Bonds of the 2023
Series", "Bonds of the Medium Term Note Series II", "Bonds of the Medium Term
Note Series III", "Bonds of the Medium Term Note Series IV", and "Bonds of the
Medium Term Note Series V", respectively; and
WHEREAS, the Original Indenture provides that the Company and the
Trustee, subject to the conditions and restrictions in the Original Indenture
contained, may enter into an indenture or indentures supplemental thereto, which
shall thereafter form a part of said Original Indenture, among other things, to
mortgage, pledge, convey, transfer or assign to the Trustee and to subject to
the lien of the Original Indenture with the same force and effect as though
included in the granting clauses thereof, additional properties acquired by the
Company after the execution and delivery of the Original Indenture, and to
provide for the creation of any series of Bonds (other than the Bonds of the
1975 Series), designating the series to be created and specifying the form and
provisions of the Bonds of such series as therein provided or permitted, and to
provide a sinking, amortization, replacement or other analogous fund for the
benefit of all or any of the Bonds of any one or more
-3-
<PAGE> 4
series, of such character and of such amount, and upon such terms and conditions
as shall be contained in such supplemental indenture; and
WHEREAS, the Company has heretofore executed and delivered to the
Trustee the Fortieth Supplemental Indenture and the Forty-first Supplemental
Indenture amending in certain respects the Original Indenture, as theretofore
supplemented (such Original Indenture as so amended is hereinafter referred to
as the "Original Indenture"); and
WHEREAS, the Company desires to provide for the creation of a new
series of bonds to be known as "First Mortgage Bonds, ______% Series due
_________," (sometimes herein referred to as the "Bonds of the ______ Series"),
and to specify the form and provisions of the Bonds of such series, and to
mortgage, pledge, convey, transfer or assign to the Trustee and to subject to
the lien of the Original Indenture certain additional properties acquired by the
Company since the execution and delivery of the Original Indenture; and
WHEREAS, the Company intends at this time to issue not to exceed
$_________________ aggregate principal amount of Bonds of the _______ Series
under and in accordance with the terms of the Original Indenture and the
Supplemental Indentures above referred to; and
WHEREAS, the Bonds of the _________ Series and the Trustee's
authentication certificate to be executed on the Bonds of the _________ Series,
are to be substantially in the following forms, respectively:
-4-
<PAGE> 5
(Form of Bond of the ___ Series)
[FACE]
[THIS BOND IS A BOOK-ENTRY GLOBAL BOND 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 BOND IS EXCHANGEABLE FOR BONDS REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED BELOW, AND NO TRANSFER OF THIS BOND (OTHER THAN
A TRANSFER OF THIS BOND 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 OR BY THE DEPOSITORY OR ANY SUCH NOMINEE OF THE
DEPOSITORY TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY)
MAY BE REGISTERED EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY 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 DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), 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.](1)
No. R $.........
PORTLAND GENERAL ELECTRIC COMPANY
FIRST MORTGAGE BOND, [_____%](2) SERIES [DUE __________, ____](2)
Portland General Electric Company, an Oregon corporation (hereinafter
sometimes called the "Company"), for value received, hereby promises to pay to
[......................,](3) [Cede & Co.,](1) or registered assigns
......................... Dollars on ___________,______, and to pay interest
thereon from [the __________ or _______________, as the case may be, next
preceding the date hereof to which interest has been paid (unless the date
hereof is a ___________ or ___________ to which interest has been paid, in which
case from the date hereof, or unless the date hereof is prior to ___________,
199__, in which case from ___________, 19__, or unless the date hereof is
between a ____________ or ____________, as the case may be, and the following
__________ or ____________, in which case from such ___________ or ____________,
provided, however, that if and to the extent the Company shall default in
payment of the interest due on such _____________ or ___________, then from the
next preceding date to which interest has been paid or if such default shall be
in respect of the interest due on ____________, 199__, then from _____________,
199__),](2) at the rate of [ , semi-annually on the first day of _________ and
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<PAGE> 6
on the first day of __________ in each year beginning on ____________,
199__,](2) until payment of the principal hereof has been made or duly provided
for. The interest so payable on any [____________ or ____________](2) will,
subject to certain exceptions provided in the ___________ Supplemental Indenture
referred to on the reverse hereof, be paid to the person in whose name this bond
is registered at the close of business on the [________________ or ____________,
as the case may be, next preceding such ___________________ or
__________________.](2)
The principal of this bond will be paid in any coin or currency of the
United States of America which at the time of payment is legal tender for the
payment of public and private debts, at the office or agency of the Company in
the Borough of Manhattan, City and State of New York, and interest thereon will
be paid in like coin or currency at said office or agency.
Reference is hereby made to the further provisions of this bond set
forth on the reverse hereof, and such further provisions shall for all purposes
have the same effect as though fully set forth at this place.
This bond shall not become or be valid or obligatory for any purpose
until the authentication certificate hereon shall have been signed by the
Trustee.
IN WITNESS WHEREOF, PORTLAND GENERAL ELECTRIC COMPANY has caused this
instrument to be executed manually or in facsimile by its duly authorized
officers and has caused a facsimile of its corporate seal to be imprinted
hereon.
Dated
-----------------------
PORTLAND GENERAL ELECTRIC COMPANY,
By:
-------------------------------
[Title]
Attest:
----------------------------
Secretary.
(Form of Trustee's Authentication Certificate for
Bonds of the _______ Series)
This is one of the bonds, of the series designated herein, described in
the within-mentioned Indenture.
HSBC BANK USA, AS TRUSTEE,
By:
-------------------------------
Authorized Officer.
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<PAGE> 7
[reverse]
This bond is one of the bonds, of a series designated as ______% Series
[due ________,_______ ,](2) of an authorized issue of bonds of the Company,
known as First Mortgage Bonds, not limited as to maximum aggregate principal
amount, all issued or issuable in one or more series under and equally secured
(except insofar as any sinking fund, replacement fund or other fund established
in accordance with the provisions of the Indenture hereinafter mentioned may
afford additional security for the bonds of any specific series) by an Indenture
of Mortgage and Deed of Trust dated July 1, 1945, duly executed and delivered by
the Company to The Marine Midland Trust Company of New York (now HSBC Bank USA),
as Trustee, as supplemented and modified by supplemental indentures (such
Indenture of Mortgage and Deed of Trust as so supplemented and modified being
hereinafter called the "Indenture"), to which Indenture and all indentures
supplemental thereto, reference is hereby made for a description of the property
mortgaged and pledged as security for said bonds, the nature and extent of the
security, and the rights, duties and immunities thereunder of the Trustee, the
rights of the holders of said bonds and of the Trustee and of the Company in
respect of such security, and the terms upon which said bonds may be issued
thereunder.
The bonds of the ___________% Series [due _________ ,________](2) are
subject to redemption prior to maturity as a whole at any time or in part from
time to time [(a) during each of the twelve months' periods set forth in the
tabulation below, at the option of the Company (by operation of the replacement
fund provided in the Indenture and otherwise, except in the cases mentioned in
the following clause (b)), upon payment of the applicable percentage of the
principal amount thereof set forth in said tabulation, under the heading
"Regular Redemption Price"; provided, however, that no such redemption shall be
made prior to _________, _________ directly or indirectly out of the proceeds of
or in anticipation of any borrowings or the issuance of other debt obligations
by or for the account of the Company having an effective interest cost
(calculated after adjustment, in accordance with generally accepted financial
practice, for any premium received or discount granted in connection with such
borrowings or issuance) of less than _________ per annum; and (b)](4) [by
operation of the sinking fund provided for in the Indenture and]5 by application
of proceeds of the sale or disposition substantially as an entirety of the
electric properties of the Company at Portland, Oregon [and (in the instances
provided in the Indenture) by the application of proceeds of property subject to
the lien thereof,](4) upon payment of the principal amount thereof:
<TABLE>
TWELVE MONTHS' REGULAR TWELVE MONTHS' REGULAR
PERIOD BEGINNING REDEMPTION PRICE PERIOD BEGINNING REDEMPTION PRICE
<S> <C> <C> <C>
</TABLE>
together in each case with interest accrued on the bonds to be redeemed to the
redemption date, upon prior notice given by mailing such notice to the
respective registered holders of such bonds not less than thirty nor more than
ninety days prior to the redemption date, all as more fully provided in the
Indenture.
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<PAGE> 8
If this bond or any portion thereof (One Thousand Dollars or an
integral multiple thereof) is duly called for redemption and payment duly
provided for as specified in the Indenture, this bond or such portion thereof
shall cease to be entitled to the lien of the Indenture from and after the date
payment is so provided for and shall cease to bear interest from and after the
redemption date.
(4)In the event of the selection for redemption of a portion only of
the principal of this bond, payment of the redemption price will be made only
upon surrender of this bond in exchange for a bond or bonds (but only of
authorized denominations of the same series) for the unredeemed balance of the
principal amount of this bond.
[This bond will not be subject to any sinking fund.](6)
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than seventy-five percent
in principal amount of the bonds (exclusive of bonds disqualified by reason of
the Company's interest therein) at the time outstanding, including, if more than
one series of bonds shall be at the time outstanding, not less than sixty
percent in principal amount of each series affected, to effect, by an indenture
supplemental to the Indenture, modifications or alterations of the Indenture and
of the rights and obligations of the Company and of the holders of the bonds and
coupons; provided, however, that no such modification or alteration shall be
made without the written approval or consent of the holder hereof which will (a)
extend the maturity of this bond or reduce the rate or extend the time of
payment of interest hereon or reduce the amount of the principal hereof or
reduce any premium payable on the redemption hereof, (b) permit the creation of
any lien, not otherwise permitted, prior to or on a parity with the lien of the
Indenture, or (c) reduce the percentage of the principal amount of the bonds
upon the approval or consent of the holders of which modifications or
alterations may be made as aforesaid.
This bond is transferable by the registered owner hereof in person or
by his attorney duly authorized in writing, at the corporate trust office of the
Trustee in the Borough of Manhattan, City and State of New York, upon surrender
of this bond for cancellation and upon payment of any taxes or other
governmental charges payable upon such transfer, and thereupon a new registered
bond or bonds of the same series and of a like aggregate principal amount will
be issued to the transferee or transferees in exchange therefor.
The Company, the Trustee and any paying agent may deem and treat the
person in whose name this bond is registered as the absolute owner hereof for
the purpose of receiving payments of or an account of the principal hereof and
interest due hereon, and for all other purposes, whether or not this bond shall
be overdue, and neither the Company, the Trustee nor any paying agent shall be
affected by any notice to the contrary.
Bonds of this series are issuable only in fully registered form without
coupons in denominations of [$1,000 and any integral multiple thereof].(2) The
registered owner of this bond at his option may surrender the same for
cancellation at said office of the Trustee and receive in exchange therefor the
same aggregate principal amount of registered bonds of the same series but
-8-
<PAGE> 9
of other authorized denominations upon payment of any taxes or other
governmental charges payable upon such exchange and subject to the terms and
conditions set forth in the Indenture.
If an event of default as defined in the Indenture shall occur, the
principal of this bond may become or be declared due and payable before maturity
in the manner and with the effect provided in the Indenture. The holders,
however, of certain specified percentages of the bonds at the time outstanding,
including in certain cases specified percentages of bonds of particular series,
may in the cases, to the extent and as provided in the Indenture, waive certain
defaults thereunder and the consequences of such defaults.
No recourse shall be had for the payment of the principal of or the
interest on this bond, or for any claim based hereon, or otherwise in respect
hereof or of the Indenture, against any incorporator, shareholder, director or
officer, past, present or future, as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or such
predecessor or successor corporation, under any constitution or statute or rule
of law, or by the enforcement of any assessment or penalty, or otherwise, all
such liability of incorporators, shareholders, directors and officers, as such,
being waived and released by the holder and owner hereof by the acceptance of
this bond and as provided in the Indenture.
The Indenture provides that this bond 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 and governed by the laws of said State.
(End of Form of Bond of the ________ Series)
and
WHEREAS, all acts and proceedings required by law and by the charter or
articles of incorporation and bylaws of the Company necessary to make the Bonds
of the ________ Series to be issued hereunder, when executed by the Company,
authenticated and delivered by the Trustee and duly issued, the valid, binding
and legal obligations of the Company, and to constitute this Supplemental
Indenture a valid and binding instrument, have been done and taken; and the
execution and delivery of this Supplemental Indenture have been in all respects
duly authorized;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH, that, in order
to secure the payment of the principal of, premium, if any, and interest on all
Bonds at any time issued and outstanding under the Original Indenture as
supplemented and modified by the ____________________ supplemental indentures
hereinbefore described and as supplemented and modified by this Supplemental
Indenture, according to their tenor, purport and effect, and to secure the
performance and observance of all the covenants and conditions therein and
herein contained, and for the purpose of confirming and perfecting the lien of
the Original Indenture on the properties of the Company hereinafter described,
or referred to, and for and in consideration of the premises and of the mutual
covenants herein contained, and acceptance of the Bonds of the _________ Series
by the holders thereof, and for other valuable consideration, the receipt
whereof is hereby acknowledged, the Company has executed and delivered this
Supplemental Indenture and
-9-
<PAGE> 10
by these presents does grant, bargain, sell, warrant, alien, convey, assign,
transfer, mortgage, pledge, hypothecate, set over and confirm unto the Trustee
the following property, rights, privileges and franchises (in addition to all
other property, rights, privileges and franchises heretofore subjected to the
lien of the Original Indenture as supplemented by the ___________ supplemental
indentures hereinbefore described and not heretofore released from the lien
thereof), to wit:
CLAUSE I
Without in any way limiting anything hereinafter described, all and
singular the lands, real estate, chattels real, interests in land, leaseholds,
ways, rights-of-way, easements, servitudes, permits and licenses, lands under
water, riparian rights, franchises, privileges, electric generating plants,
electric transmission and distribution systems, and all apparatus and equipment
appertaining thereto, offices, buildings, warehouses, garages, and other
structures, tracks, machine shops, materials and supplies and all property of
any nature appertaining to any of the plants, systems, business or operations of
the Company, whether or not affixed to the realty, used in the operation of any
of the premises or plants or systems or otherwise, which have been acquired by
the Company since the execution and delivery of the Original Indenture and not
heretofore included in any indenture supplemental thereto, and now owned or
which may hereafter be acquired by the Company (other than excepted property as
defined in the Original Indenture).
CLAUSE II
All corporate, Federal, State, municipal and other permits, consents,
licenses, bridge licenses, bridge rights, river permits, franchises, grants,
privileges and immunities of every kind and description, owned, held, possessed
or enjoyed by the Company (other than excepted property as defined in the
Original Indenture) and all renewals, extensions, enlargements and modifications
of any of them, which have been acquired by the Company since the execution and
the delivery of the Original Indenture and not heretofore included in any
indenture supplemental thereto, and now owned or which may hereafter be acquired
by the Company.
CLAUSE III
Together with all and singular the plants, buildings, improvements,
additions, tenements, hereditaments, easements, rights, privileges, licenses and
franchises and all other appurtenances whatsoever belonging or in any wise
pertaining to any of the property hereby mortgaged or pledged, or intended so to
be, or any part thereof, and the reversion and reversions, remainder and
remainders, and the rents, revenues, issues, earnings, income, products and
profits thereof, and every part and parcel thereof, and all the estate, right,
title, interest, property, claim and demand of every nature whatsoever of the
Company at law, in equity or otherwise howsoever, in, of and to such property
and every part and parcel thereof.
TO HAVE AND TO HOLD all of said property, real, personal and mixed, and
all and singular the lands, properties, estates, rights, franchises, privileges
and appurtenances hereby mortgaged, conveyed, pledged or assigned, or intended
so to be, together with all the
-10-
<PAGE> 11
appurtenances thereto appertaining and the rents, issues and profits thereof,
unto the Trustee and its successors and assigns, forever.
SUBJECT, HOWEVER, to the exceptions, reservations, restrictions,
conditions, limitations, covenants and matters contained in all deeds and other
instruments whereunder the Company has acquired any of the property now owned by
it, and to permitted encumbrances as defined in Subsection B of Section 1.11 of
the Original Indenture;
BUT IN TRUST NEVERTHELESS, for the equal and proportionate use,
benefit, security and protection of those who from time to time shall hold the
Bonds and coupons authenticated and delivered under the Original Indenture and
the ________ supplemental indentures hereinbefore described or this Supplemental
Indenture, and duly issued by the Company, without any discrimination,
preference or priority of any one bond or coupon over any other by reason of
priority in the time of issue, sale or negotiation thereof or otherwise, except
as provided in Section 11.28 of the Original Indenture, so that, subject to said
Section 11.28, each and all of said Bonds and coupons shall have the same right,
lien and privilege under the Original Indenture and the _________ supplemental
indentures hereinbefore described, or this Supplemental Indenture, and shall be
equally secured thereby and hereby and shall have the same proportionate
interest and share in the trust estate, with the same effect as if all of the
Bonds and coupons had been issued, sold and negotiated simultaneously on the
date of delivery of the Original Indenture;
AND UPON THE TRUSTS, USES AND PURPOSES and subject to the covenants,
agreements and conditions in the Original Indenture and the ________
supplemental indentures hereinbefore described and herein set forth and
declared.
ARTICLE ONE.
BONDS OF THE ____________ SERIES AND CERTAIN
PROVISIONS RELATING THERETO.
(7)SECTION 1.01A. Definitions Pertaining to Series. The terms defined
in this Section 1.01A (except as herein otherwise expressly provided or unless
the context otherwise requires) for all purposes of this Supplemental Indenture
shall have the respective meanings specified in this Section 1.01A. All other
terms used in this Supplemental Indenture which are defined in the Indenture or
in the Trust Indenture Act of 1939 or which are by reference therein defined in
the Securities Act of 1933, as amended (except as herein otherwise expressly
provided or unless the context otherwise requires), shall have the meanings
assigned to such terms in said Indenture in said Trust Indenture Act and in said
Securities Act as in force at the date of the execution of this _______
Supplemental Indenture.
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<PAGE> 12
Alternate Treasury Rates:
The term "Alternate Treasury Rate" shall mean as of any _______ the
average yields to maturity of the daily closing bids (or less frequently if
daily quotations shall not be available), quoted by at least three recognized
U.S. Government securities dealers selected by the Company, for all marketable
U.S. Treasury securities with a maturity of not less than three months shorter,
or more than three months longer, than the applicable Comparable Maturity from
such ________ (other than securities which can, at the option of the holder, be
surrendered at face value in payment of any Federal estate tax) for the most
recent five consecutive business days during which there had been at least three
days on which daily closing bids are quoted within the period beginning on the
preceding _______ such ______________ and ending prior to such ______________.
Applicable Treasury Rate:
The term "Applicable Treasury Rate" shall mean as of any ________ (i)
if available, the most recent weekly Comparable Maturity Treasury Rate published
during the period beginning on the ________ January ______, preceding such
____________ and ending on such ___________, or (ii) if such Weekly Comparable
Maturity Treasury Rate is not available, the Alternate Treasury Rate as of such
or (iii) if the Alternate Treasury Rate as of such __________ is not available
due to the Company's failure to select the requisite securities dealers, the
most recently published Weekly Comparable Maturity Treasury Rate.
Business Day:
The term "business day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a legal holiday for banking institutions in The
City of New York.
Comparable Maturity:
The term "Comparable Maturity" shall mean a period of _____ years
corresponding to the term of the relevant Interest Period.
Interest Payment Date:
The term "Interest Payment Date" shall mean each ________ and
____________, commencing ____________, while any Bonds of the ___________ Series
is outstanding.
Interest Period:
The term "Interest Period", other than the initial Interest Period,
shall mean a period of _____________ years ending on _____________ of any year
through and including ______________. The initial Interest Period shall be the
period commencing on __________ and ending on __________.
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<PAGE> 13
Redeemable Period:
The term "Redeemable Period" means the period, if any, during any
Interest Period (after the initial Interest Period) during which the Bonds of
the _______ Series are redeemable at the option of the Company.
Redemption Price:
The term "Redemption Price" means the percentage or percentages (not
less than 100%) of principal amount of the Bonds of the ___________ Series at
which the Bonds of the ____________ are redeemable.
U.S. Treasury Differential Percentages:
The term "U.S. Treasury Differential Percentage" shall have the meaning
set forth in Section ________.
Wall Street Journal Notice:
The term "Wall Street Journal Notice" shall refer to the newspaper
notice indicating a higher interest rate and otherwise in the manner described
in Section _______.
Weekly Comparable Maturity Treasury Rate:
The term "Weekly Comparable Maturity Treasury Rate" shall mean the
weekly average yield to maturity value adjusted to a constant maturity of the
Comparable Maturity as read from the yield curves of the most actively traded
marketable U.S. Treasury fixed interest rate securities as constructed daily by
the U.S. Treasury Department and as published by the Federal Reserve Board or
any Federal Reserve Bank or by any United States Government department or
agency. Since February 1977, Weekly Comparable Maturity Treasury Rates have been
published by the Federal Reserve Board weekly in "Statistical Release H.
15(519). Selected Interest Rates" as "U.S. Government securities -- Treasury
constant maturities."
SECTION 1.01B. Certain Terms of Bonds of the __________ Series. There
shall be a series of Bonds, known as and entitled "First Mortgage Bonds, _______
[% Series due ____________ , __________"](2) (sometimes herein referred to as
the "Bonds of the _____ Series") and the form thereof shall be substantially as
hereinabove set forth. The aggregate principal amount of the Bonds of the ______
Series shall be limited to _____________ excluding, however, any Bonds of the
________ Series which may be executed, authenticated and delivered in exchange
for or in lieu of or in substitution for other Bonds of the _________ Series
pursuant to the provisions of the Original Indenture or of this Supplemental
Indenture.
The definitive Bonds of the _______ Series shall be issuable only in
fully registered form without coupons in the denomination of [$1,000 and in any
integral multiple thereof.](2) [Except as provided in the next succeeding
sentence and notwithstanding the provisions of Section 2.05 of
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<PAGE> 14
the Original Indenture,](2) each Bond of the _______ Series shall be dated as of
the date of its authentication, [shall mature __________________,
____________,](2) and shall bear interest from [the __________ or ____________,
as the case may be, next preceding the date thereof to which interest has been
paid, unless the date thereof is a _________ or ____________ to which interest
has been paid, in which case it shall bear interest from such date, or unless
the date thereof is prior to ____________, 199__, in which case it shall bear
interest from _____________, 199__. Each Bond of the _______________ Series
authenticated between the record date (as hereinafter in this Section ____
defined) for any interest payment date and such interest payment date shall be
dated as of the date of its authentication, but shall bear interest from such
interest payment date; provided, however, that if and to the extent the Company
shall default in the payment of the interest due on such interest payment date,
then any Bond of the ______ Series so authenticated shall bear interest from the
__________ or ____________, as the case may be, next preceding the date of such
Bond to which interest has been paid, or if such default shall be in respect of
the interest due on _____________, 199__, then from __________, 199__.](2)
[All](2) Bonds of the _____________ Series shall bear interest at the rate of
[_____%](2) per annum until the payment of the principal thereof has been made
or duly provided for, such interest to be payable [semi-annually on ________ and
_____________ in each year.](2) The person in whose name any Bond of the
_________ Series is registered at the close of business on any record date (as
hereinafter in this Section ____ defined) with respect to any interest payment
date shall be entitled to receive the interest payable thereon on such interest
payment date notwithstanding the cancellation of such Bond upon any transfer or
exchange thereof subsequent to such record date and prior to such interest
payment date, unless the Company shall default in the payment of the interest
due on such interest payment date, in which case such defaulted interest shall
be paid to the person in whose name such Bond is registered on a subsequent
record date fixed by the Company, which subsequent record date shall be fifteen
(15) days prior to the payment of such defaulted interest. The term "record
date" as used in this Section ____ with respect to any [semi-annual](2) interest
payment date shall mean the [_________________ or ___________, as the case may
be, next preceding such interest payment date, or, if such _________ or
____________ is not a business day, the business day next preceding such
_________ or _______________.](2) The principal of the Bonds of the ____________
Series shall be payable in any coin or currency of the United States of America
which at the time of payment is legal tender for the payment of public and
private debts at the office or agency of the Company in the Borough of
Manhattan, City and State of New York, and interest on such Bonds shall be
payable in like coin or currency at said office or agency.
The definitive Bonds of the _________ Series may be issued in the form
of Bonds, engraved, printed or lithographed on steel engraved borders.
Upon compliance with the provisions of Section 2.06 of the Original
Indenture and upon payment of any taxes or other governmental charges payable
upon such exchange, Bonds of the ________ Series may be exchanged for a new Bond
or Bonds of different authorized denominations of like aggregate principal
amount.
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<PAGE> 15
The Trustee hereunder shall, by virtue of its office as such Trustee,
be the registrar and transfer agent of the Company for the purpose of
registering and transferring Bonds of the________ Series.
Notwithstanding the provisions of Section 2.11 of the Original
Indenture, no service charge shall be made for any exchange or transfer of Bonds
of the _________ Series, but the Company at its option may require payment of a
sum sufficient to cover any tax or other governmental charge incident thereto.
SECTION 1.02. Redemption Provisions for Bonds of the _______ Series.
The Bonds of the __________ Series shall be subject to redemption prior to
maturity as a whole at any time or in part from time to time
(4)(a) during each of the twelve month periods set forth in
the tabulation below, at the option of the Company (through the operation of the
replacement fund provided for in Section 4.04 of the Original Indenture and
otherwise, except in the cases mentioned in the following clause (b)), upon
payment of the applicable percentage of the principal amount thereof set forth
in said tabulation under the heading "Regular Redemption Price"; provided,
however, that no such redemption shall be made prior to ____________________,
_____________ directly or indirectly out of the proceeds of or in anticipation
of any borrowings or the issuance of other debt obligations by or for the
account of the Company having an effective interest cost (calculated after
adjustment, in accordance with generally accepted financial practice, for any
premium received or discount granted in connection with such borrowings or
issuance) of less than ___________ per annum; and
(b) (4)(i) through the operation of the sinking fund
for the Bonds of the _____ Series provided
for in Section _____ of this Supplemental
Indenture,
(4)(ii) through the application of cash deposited
with the Trustee pursuant to Section 6.04 of
the Original Indenture, upon the taking,
purchase or sale of any property subject to
the lien hereof or thereof in the manner set
forth in said Section, or
(iii) through the application of cash representing
the proceeds of the sale or disposition
substantially as an entirety of the electric
properties of the Company at Portland,
Oregon, which is required by the provisions
of Section 7.01 of the Original Indenture to
be applied to the retirement of Bonds,
<TABLE>
<S> <C> <C> <C>
TWELVE MONTHS' REGULAR TWELVE MONTHS' REGULAR
PERIOD BEGINNING REDEMPTION PRICE PERIOD BEGINNING REDEMPTION PRICE
</TABLE>
-15-
<PAGE> 16
together in each case with interest accrued on the Bonds to be redeemed to the
redemption date, upon prior notice by mailing such notice to the respective
registered owners of such Bonds not less than thirty nor more than ninety day
prior to the redemption date; and otherwise as provided in Article Nine of the
Original Indenture.
(8)SECTION 1.03. Sinking Fund for Bonds of the __________ Series; Bonds
Credited upon or Redeemed Through Certain Sinking Fund Payments Limited as to
further use as Basis of Other Action or Credit. So long as any Bonds of the
_______ Series are outstanding:
The Company covenants that, for the purpose of providing a sinking fund
for the Bonds of the ______ Series, it will, subject to the provisions
hereinafter in this Section set forth, pay to the Trustee on or before
____________ in each year, commencing ______________, and continuing to and
including _________, _____________, a sum sufficient (exclusive of accrued
interest) to redeem, on the next ensuing __________, at the Special Redemption
Price at which the same are then redeemable, a principal amount of Bonds of the
___________ Series equal to the lowest integral multiple of $1,000 which equals
or exceeds _________% of the greatest aggregate principal amount of Bonds of the
________ Series heretofore at any one time outstanding, after deducting from
said greatest aggregate principal amount the sum of the following amounts, in
the event that such sum would equal $500,000 or more, namely, (1) the aggregate
principal amount of Bonds of the _______ Series theretofore redeemed by the
application of the proceeds of property released from the lien of the Original
Indenture or taken or purchased pursuant to the provisions of Article Six of the
Original Indenture, and (2) the aggregate principal amount of Bonds of the
_______ Series theretofore redeemed and retired and made the basis for the
withdrawal of such proceeds pursuant to Section 7.03 of the Original Indenture
or certified pursuant to Section 6.06 of the Original Indenture in lieu of the
deposit of cash upon the release or taking of property.
The dates upon which payments are required for the sinking fund for
Bonds of the ______ Series above provided are herein referred to as "sinking
fund payment dates".
The Company may
(4)(1) in whole at any time or in part from time to time,
but not later than 45 days prior to any sinking fund
payment date, anticipate all or part of the sinking
fund payment due on such date by delivering Bonds of
the ____ Series to the Trustee as a credit to such
sinking fund payment and/or by notifying the Trustee
in writing that it elects to apply as a credit
against such sinking fund payment any Bonds of the
_____ Series which shall have been redeemed at the
option of the Company at the Regular Redemption Price
at which such Bonds are redeemable as provided in
Section ____ of this Supplemental Indenture;
(4)(2) within twelve months preceding any sinking fund
payment date but not later than 45 days prior to such
sinking fund payment date, anticipate in whole at any
time or in part from time to time the sinking fund
payment due on
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<PAGE> 17
such date by causing to be redeemed, at the
redemption price at which Bonds of the _______ Series
are then redeemable for the sinking fund, as provided
in Section ____ hereof, Bonds of the _______ Series
of an aggregate principal amount not exceeding the
aggregate principal amount required to be retired to
satisfy such sinking fund payment, and delivering to
the Trustee notice in writing that such Bonds are
being redeemed for account of the sinking fund; and
(3) in whole at any time or in part from time to time,
but not later than 45 days prior to any sinking fund
payment date, anticipate all or part of the sinking
fund payment due on such date by delivering to the
Trustee a certificate of available additions dated
and prepared as provided in Section 3.03 of the
Original Indenture showing as a credit against such
sinking fund payment an amount of available additions
equal to 166-2/3% of the sinking fund payment or part
thereof so anticipated; provided, however, that so
long as any Bonds of the _______ Series are
outstanding, any available additions thus shown as a
credit against any such sinking fund payment or part
thereof shall (but without limiting the use of the
amount thereof in calculating any minimum provision
for depreciation pursuant to the provisions of
Subsection G of Section 1.10 of the Original
Indenture as the same may be amended in accordance
with the provisions of Section ____ of this
Supplemental Indenture) be deemed to have been
"included in an officers' certificate filed with the
Trustee as the basis for a sinking fund credit" and
to have been "made the basis for action or credit
hereunder" as such term is defined in Subsection H of
Section 1.10 of the Original Indenture.
No available Bond retirements which shall theretofore have been made
the basis for action or credit under the Original Indenture or hereunder, and no
retirements of Bonds of the ________ Series which shall theretofore have been
credited upon the sinking fund for the Bonds of the ________ Series, shall be
made the basis of a credit upon such sinking fund. Bonds which the Company has
elected to apply as a credit upon any sinking fund payment in accordance with
the provisions of clause (1) of the paragraph immediately preceding and/or
redeemed in anticipation of any sinking fund payment in accordance with the
provisions of clause (2) of the paragraph immediately preceding shall operate to
reduce by their principal amount the principal amount of Bonds to be redeemed by
such sinking fund payment, and any available additions which have been applied
in anticipation of any sinking fund payment in accordance with the provisions of
clause (3) of the paragraph immediately preceding shall operate to reduce by 60%
of their amount the principal amount of Bonds to be redeemed by such sinking
fund payment.
A. All Bonds made the basis of a credit upon any sinking fund payment
for Bonds of the _______ Series and/or (except with respect to Bonds on which a
notation of partial payment shall be made as permitted by any provision of the
Original Indenture, of any supplemental indenture or of any agreement entered
into as permitted by the Original Indenture or by any supplemental indenture)
redeemed (whether on any sinking fund payment date or in anticipation
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<PAGE> 18
of any such sinking fund payment) by operation of the sinking fund for such
_______ Series if not theretofore canceled shall be canceled and, so long as any
Bonds of the _______ Series are outstanding, shall not (but without limiting the
use of the principal amount thereof in calculating any minimum provision for
depreciation pursuant to the provisions of Subsection G of Section 1.10 of the
Original Indenture as the same may be amended in accordance with the provisions
of Section 1.08 of this Supplemental Indenture) be made the basis of the
authentication and delivery of Bonds or of any other further action or credit
under the Original Indenture or any supplemental indenture, including this
Supplemental Indenture.
B. (i) To the extent that
(a) in any given year the principal amount of
Bonds made the basis of a credit upon any
sinking fund payment, and/or redeemed
(whether on a sinking fund payment date or
in anticipation of a sinking fund payment)
by operation of the sinking fund, for Bonds
of the 1975 Series, or for Bonds of the 1977
Series, or for Bonds of the 1977 Second
Series, or for Bonds of the 1984 Series, or
for Bonds of the 1986 Series, or for Bonds
of the 4-7/8% Series due 1987, or for Bonds
of the 1990 Series, or for Bonds of the 1991
Series, or for Bonds of the 4-5/8% Series
due 1993, or for Bonds of the 4-3/4% Series
due 1993, or for Bonds of the 1994 Series,
or for Bonds of the 1995 Series, or for
Bonds of the 1996 Series, or for Bonds of
the 1996 Second Series, or for Bonds of the
1999 Series, or for Bonds of the 2000 Second
Series,
does not exceed
(b) an amount equal to 1% of the greatest
aggregate principal amount of Bonds of such
Series theretofore at any one time
outstanding, after deducting from said
aggregate principal amount the sum of the
following amounts, in the event that such
sum would equal $500,000 or more, namely,
(1) the aggregate principal amount of Bonds
of such Series theretofore redeemed by the
application of the proceeds of property
released from the lien of the Original
Indenture or taken or purchased pursuant to
the provisions of Article Six of the
Original Indenture, and (2) the aggregate
principal amount of Bonds of such Series
theretofore redeemed and retired and made
the basis for the withdrawal of such
proceeds pursuant to Section 7.03 of the
Original Indenture or certified pursuant to
Section 6.06 of the Original Indenture in
lieu of the deposit of cash upon the release
or taking of property; and
to the extent that
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<PAGE> 19
(c) in any given year the principal amount of
Bonds made the basis of a credit upon any
sinking fund payment and/or redeemed
(whether on a sinking fund payment date or
in anticipation of a sinking fund payment)
by operation of the sinking fund, for Bonds
of the 1997 Series, or for Bonds of the 2000
Series, or for Bonds of the 2001 Series, or
for Bonds of the 2002 Series, or for Bonds
of the 2003 Series, or for Bonds of the 2003
Second Series, or for Bonds of the 2005
Series, or for Bonds of the 2006 Series, or
for Bonds of the 2007 Series, or for Bonds
of the 2010 Series, or for Bonds of the 2012
Series, or for Bonds of the ________ Series,
does not exceed
(d) an amount equal to (1) 1% of the greatest
aggregate principal amount of Bonds of such
Series theretofore at any one time
outstanding, after making the deductions
from said aggregate principal amount
referred to in clause (b) of this
subparagraph (i), minus (2) 60% of the
amount of available additions made the basis
of a credit against such sinking fund
payment,
the principal amount of Bonds so made the basis of a credit upon a sinking fund
payment and/or so redeemed by operation of the sinking fund for Bonds of such
Series shall not (but without limiting the use of the principal amount thereof
in calculating any minimum provision for depreciation pursuant to the provisions
of Subsection G of Section 1.10 of the Original Indenture as the same may be
amended in accordance with the provisions of Section 1.08 of this Supplemental
Indenture) be made the basis of the authentication and delivery of Bonds or of
any other further action or credit under the Original Indenture or any
supplemental indenture, including this Supplemental Indenture; and
(ii) to the extent that
(e) in any given year the amount of available
additions made the basis of a credit against
any sinking fund payment for Bonds of the
1997 Series, or for Bonds of the 2000
Series, or for Bonds of the 2001 Series, or
for Bonds of the 2002 Series, or for Bonds
of the 2003 Series, or for Bonds of the 2003
Second Series, or for Bonds of the 2005
Series, or for Bonds of the 2006 Series, or
for Bonds of the 2007 Series, or for Bonds
of the 2010 Series, or for Bonds of the 2012
Series, or for Bonds of the _______ Series,
does not exceed
(f) an amount equal to one and sixty-six and
two-thirds one hundredths percent
(1.66-2/3%) of the greatest aggregate
principal amount of Bonds of such Series
theretofore at any one time outstanding,
after
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<PAGE> 20
making the deductions from said aggregate
principal amount referred to in clause (b)
of subparagraph (i) of this paragraph B,
the amount of available additions so made the basis of a credit against a
sinking fund payment shall (but without limiting the use of the amount thereof
in calculating any minimum provision for depreciation pursuant to the provisions
of Subsection G of Section 1.10 of the Original Indenture as the same may be
amended in accordance with the provisions of Section 1.08 of this Supplemental
Indenture) be deemed to have been "included in an officers' certificate filed
with the Trustee as the basis for a sinking fund credit" and to have been "made
the basis for action or credit hereunder" as such term is defined in Subsection
H of Section 1.10 of the Original Indenture.
C. From and after the time when all Bonds of any of the Series (other
than Bonds of the 1996 Second Series, Bonds of the 1999 Series and Bonds of the
2000 Second Series) referred to in (a) of paragraph B immediately preceding
shall cease to be outstanding, and in the case of Bonds of the 1996 Second
Series, Bonds of the 1999 Series and Bonds of the 2000 Second Series, for each
of such Series from and after the time when the first Bond of such Series shall
have been redeemed by operation of the sinking fund for Bonds of such Series, a
principal amount of Bonds equal to the excess of
(i) the aggregate principal amount of Bonds made the
basis of a credit upon all sinking fund payments
and/or redeemed by operation of the sinking fund for
Bonds of such Series as set forth in said (a) in all
years, over
(ii) the aggregate amounts set forth in (b) of paragraph B
immediately preceding with reference to Bonds of such
Series for all years,
shall become "available Bond retirements" as such term is defined in Section
1.10.J. of the Original Indenture and may thereafter be included in Item 4 (or,
in the case of Bonds of the 1996 Second Series, Bonds of the 1999 Series and
Bonds of the 2000 Second Series, in Item 3) of any "certificate of available
Bond retirements" thereafter delivered to and/or filed with the Trustee pursuant
to Section 3.02 of the Original Indenture; and from and after the time when all
Bonds of any of the Series referred to in (c) of paragraph B immediately
preceding shall cease to be outstanding, a principal amount of Bonds equal to
the excess of
(iii) the aggregate principal amount of Bonds made the
basis of a credit upon all sinking fund payments
and/or redeemed by operation of the sinking fund for
Bonds of such Series as set forth in said (c) in all
years, over
(iv) the aggregate amounts set forth in (d) of paragraph B
immediately preceding with reference to Bonds of such
Series for all years,
shall become "available Bond retirements" as such term is defined in Section
1.10.J. of the Original Indenture and may thereafter be included in Item 4 of
any "certificate of available Bond
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<PAGE> 21
retirements" thereafter delivered to and/or filed with the Trustee pursuant to
Section 3.02 of the Original Indenture, and an amount of available additions
equal to the excess of
(v) the aggregate amount of available additions made the
basis of a credit against all sinking fund payments
for Bonds of such Series as set forth in (e) of
paragraph B immediately preceding in all years, over
(vi) the aggregate amounts set forth in (f) of paragraph B
immediately preceding with reference to Bonds of such
Series for all years,
shall become "available additions" as such term is defined in Section 1.10.I. of
the Original Indenture and may thereafter be included in Item 5 of any
"certificate of available additions" thereafter filed with the Trustee pursuant
to Section 3.01 of the Original Indenture; provided, however, that the foregoing
provisions of this paragraph C shall not become effective (except with respect
to Bonds of the 1996 Second Series, Bonds of the 1999 Series and Bonds of the
2000 Second Series, as to each of which Series such provisions shall become
effective regardless of any consent of holders of any Bonds from and after the
time when the first Bond of such Series shall have been redeemed by operation of
the sinking fund for Bonds of such Series) unless and until the holders of not
less than 75% in principal amount of Bonds then outstanding or their
attorneys-in-fact duly authorized, including the holders of not less than 60% in
principal amount of the Bonds then outstanding of each series the rights of the
holders of which are affected, shall have consented to the amendments of
Subsections G, H, I and J of Section 1.10 and of Sections 3.01, 3.03 and 4.03 of
the Original Indenture and of Sections 1.03 of the various Supplemental
Indentures referred to in Subsections II and III of Section ____ of this
Supplemental Indenture.
Forthwith after the 45th day prior to each sinking fund payment date on
which the Company will be required to make to the Trustee a payment in cash for
the sinking fund for the Bonds of the _____________ Series, the Trustee shall
proceed to select for redemption, in the manner provided in Article Nine of the
Original Indenture, a principal amount of Bonds of the ____________ Series equal
to the aggregate principal amount of Bonds redeemable with the money required to
be paid as hereinbefore provided on the then next ensuing sinking fund payment
date, and, for and on behalf of and in the name of the Company, shall give
notice as required by the provisions of Section ____ of this Supplemental
Indenture and Article Nine of the Original Indenture of the redemption for the
sinking fund on the next ensuing _____________ the Bonds so selected. On or
before the sinking fund payment date next preceding any _______ upon which any
Bonds of the ____________ Series shall have been so called for redemption for
the sinking fund, the Company shall pay to the Trustee the sum required to
redeem the Bonds so called. All moneys so paid to the Trustee shall be applied
by it to the redemption of the Bonds so called for redemption for the sinking
fund.
The Company will pay the interest accrued on Bonds redeemed for the
sinking fund out of other moneys than those in the sinking fund, and will from
time to time on request of the Trustee pay to the Trustee, otherwise than out of
the sinking fund moneys, the cost of giving
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<PAGE> 22
notice of redemption of Bonds for the sinking fund and any other expense in
operating the sinking fund, the intention being that the sinking fund shall not
be charged for such expenses.
SECTION 1.04. Notwithstanding the provisions of Section 4.07 of the
Original Indenture, the provisions of Sections 4.04, 4.05, and 4.06 of the
Original Indenture shall remain in full force and effect and shall be performed
by the Company so long as any Bonds of the ___________ Series remain
outstanding.
SECTION 1.05. The requirements which are stated in the next to the last
paragraph of Section 1.13 and in Clause (9) of Paragraph A of Section 3.01 of
the Original Indenture to be applicable so long as any of the Bonds of the 1975
Series are outstanding shall remain applicable so long as any of the Bonds of
the ___________ Series are outstanding.
(4)SECTION 1.06. Notwithstanding the provisions of Section 2.06 or
Section 2.10 of the Original Indenture, the Company shall not be required (i) to
issue, register, discharge from registration, exchange or transfer any Bond of
the ____________ Series for a period of fifteen (15) days next preceding any
selection by the Trustee of Bonds of the ______________ Series to be redeemed or
(ii) to register, discharge from registration, exchange or transfer any Bond of
the ______________ Series so selected for redemption in its entirety or (iii) to
exchange or transfer any portion of a Bond of the _____________ Series which
portion has been so selected for redemption.
SECTION 1.07. So long as any Bonds of the ________ Series remain
outstanding, all references to the minimum provision for depreciation in the
form of certificate of available additions set forth in Section 3.03 of the
Original Indenture shall be included in any certificate of available additions
filed with the Trustee, but whenever Bonds of the __________ Series shall no
longer be outstanding, all references to such minimum provisions for
depreciation may be omitted from any such certificate.
SECTION 1.08. I. Each holder of any Bond of the _________ Series, by
acceptance of such Bond shall thereby consent that, at any time after the
requisite consents, if any, of the holders of Bonds of other series shall have
been given as hereinafter provided, Subsections A and G of Section 1.10 of the
Original Indenture be amended so as to read as follows:
"A. The term 'bondable public utility property' shall mean and
comprise any tangible property now owned or hereafter acquired by the
Company and subjected to the lien of this Indenture, which is located
in the States of Oregon, Washington, California, Arizona, New Mexico,
Idaho, Montana, Wyoming, Utah and Nevada and is used or is useful to it
in the business of furnishing or distributing electricity for heat,
light or power or other use, or supplying hot water or steam for heat
or power or steam for other purposes, including, without limiting the
generality of the foregoing, all properties necessary or appropriate
for purchasing, generating, manufacturing, producing, transmitting,
supplying, distributing and/or disposing of electricity, hot water or
steam; provided, however, that the term 'bondable public utility
property' shall not be deemed to
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<PAGE> 23
include any nonbondable property, as defined in Subsection B of this
Section 1.10, or any excepted property."
"G. The term 'minimum provision for depreciation' for the
period from March 31, 1945 through December 31, 1966, as applied to
bondable public utility property, whether or not subject to a prior
lien, shall mean $35,023,487.50.
"The term 'minimum provision for depreciation' for any
calendar year subsequent to December 31, 1966, as applied to bondable
public utility property, shall mean the greater of (i) an amount equal
to 2% of depreciable bondable public utility property, as shown by the
books of the Company as of January 1 of such year, with respect to
which the Company was as of that date required, in accordance with
sound accounting practice, to make appropriations to a reserve or
reserves for depreciation or obsolescence, or (ii) the amount actually
appropriated by the Company on its books of account to a reserve or
reserves for depreciation or obsolescence in respect of depreciable
bondable public utility property for such calendar year, in either case
less an amount equal to the aggregate of (a) the amount of any property
additions which during such calendar year were included in an officers'
certificate filed with the Trustee as the basis for a sinking fund
credit pursuant to the provisions of a sinking fund for Bonds of any
series, and (b) 166-2/3% of the principal amount of Bonds of any series
which shall have been delivered to the Trustee as a credit, or which
the Company shall have elected to apply as a credit, against any
sinking fund payment due during such calendar year for Bonds of any
series, or which shall have been redeemed in anticipation of, or out of
moneys paid to the Trustee on account of, any sinking fund payment due
during such calendar year for Bonds of any series. Bonds delivered to
the Trustee as, or applied as, a credit against any sinking fund
payment and Bonds redeemed in anticipation of any sinking fund payment,
regardless of the time when they were actually delivered, applied or
redeemed, for purposes of the preceding sentence shall be deemed to
have been delivered, applied or redeemed, as the case may be, on the
sinking fund payment date when such sinking fund payment was due. Bonds
redeemed out of moneys paid to the Trustee on account of any sinking
fund payment shall, regardless of the date when they were redeemed, for
purposes of the second preceding sentence, be deemed to have been
redeemed on the later of (i) the date on which such moneys were paid to
the Trustee or (ii) the sinking fund payment date when such sinking
fund payment was due.
"The minimum provision for depreciation for any calendar year
subsequent to December 31, 1966, as applied to bondable public utility
property not subject to a prior lien, shall be determined as set forth
in the paragraph immediately preceding, except that all references
therein to 'depreciable bondable public utility property' shall be
deemed to be 'depreciable bondable public utility property not subject
to a prior lien'.
"The minimum provision for depreciation as applied to bondable
public utility property and the minimum provision for depreciation as
applied to bondable public utility property not subject to a prior lien
for any period commencing subsequent to December 31, 1966 which is of
twelve whole calendar months' duration but is other than a calendar
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<PAGE> 24
year or which is of less than twelve whole calendar months' duration
shall be determined by multiplying the number of whole calendar months
in such period by one-twelfth of the corresponding minimum provision
for depreciation for the most recent calendar year completed prior to
the end of such period, and fractions of a calendar month shall be
disregarded.
"The aggregate amount of the minimum provision for
depreciation as applied to bondable public utility property and the
aggregate amount of the minimum provision for depreciation as applied
to bondable public utility property not subject to a prior lien from
March 31, 1945 to any date shall be the sum of the corresponding
minimum provision for depreciation for each completed calendar year
between December 31, 1966 and such date, plus the corresponding minimum
provision for depreciation for the period, if any, from the end of the
most recent such completed calendar year to such date, in each case
determined as set forth above, plus $35,023,487.50.
"All Bonds credited against any sinking fund payment due
subsequent to December 31, 1966 for Bonds of any series and (except as
provided in Section 9.04 with respect to Bonds on which a notation of
partial payment shall be made) all Bonds redeemed in anticipation of or
out of moneys paid to the Trustee as a part of any sinking fund payment
due subsequent to December 31, 1966 for Bonds of any series, shall be
canceled and no such Bonds, nor any property additions which,
subsequent to December 31, 1966, shall have been included in an
officers' certificate filed with the Trustee as the basis for a sinking
fund credit pursuant to the provisions of a sinking fund for Bonds of
any series, shall be made the basis of the authentication and delivery
of Bonds or of any other further action or credit hereunder."
II. Each holder of any Bond of the _______ Series, by acceptance of
such Bond shall thereby consent that, at any time after the requisite consents,
if any, of the holders of Bonds of other series shall have been given as
hereinafter provided:
(1) Subsection A of Section 1.10 of the Original Indenture, as
the same may be amended as hereinabove in this Section 1.08 provided,
be further amended by replacing the word "and" between the words "Utah"
and "Nevada" with a comma and by adding after the word "Nevada" the
words "and Alaska";
(2) Subsection G of Section 1.10 of the Original Indenture, as
the same may be amended as hereinabove in this Section 1.08 provided,
be further amended by amending the second paragraph thereof to read as
follows:
"The term 'minimum provision for depreciation' for any
calendar year subsequent to December 31, 1966, as applied to bondable
public utility property, shall mean the greater of (i) an amount equal
to 2% of depreciable bondable public utility property, as shown by the
books of the Company as of January 1 of such year, with respect to
which the Company was as of that date required, in accordance with
sound accounting practice, to make appropriations to a reserve or
reserves for depreciation or obsolescence, or (ii) the
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<PAGE> 25
amount actually appropriated by the Company on its books of account to
a reserve or reserves for depreciation or obsolescence in respect of
depreciable bondable public utility property for such calendar year, in
either case less an amount equal to the aggregate of (a) the amount of
any property additions which during such calendar year were included in
an officers' certificate filed with the Trustee as the basis for a
sinking fund credit pursuant to the provisions of a sinking fund for
Bonds of any series and which as a result of having been so included
have been deemed, either without time limit or only so long as any
Bonds of such series are outstanding, to have been 'included in an
officers' certificate filed with the Trustee as the basis for a sinking
fund credit' and to have been 'made the basis for action or credit
hereunder' as such term is defined in Subsection H of Section 1.10 of
the Original Indenture, and (b) 166-2/3% of the principal amount of
Bonds of any series which shall have been delivered to the Trustee as a
credit, or which the Company shall have elected to apply as a credit,
against any sinking fund payment due during such calendar year for
Bonds of any series, or which shall have been redeemed in anticipation
of, or out of moneys paid to the Trustee on account of, any sinking
fund payment due during such calendar year for Bonds of any series and
which as a result of having been so made the basis of a credit upon a
sinking fund payment and/or so redeemed by operation of a sinking fund
shall have been disqualified, either without time limit or only so long
as any Bonds of such series are outstanding, from being made the basis
of the authentication and delivery of Bonds or of any other further
action or credit under the Original Indenture or any supplemental
indenture. Bonds delivered to the Trustee as, or applied as, a credit
against any sinking fund payment and Bonds redeemed in anticipation of
any sinking fund payment, regardless of the time when they were
actually delivered, applied or redeemed, for purposes of the preceding
sentence shall be deemed to have been delivered, applied or redeemed,
as the case may be, on the sinking fund payment date when such sinking
fund payment was due. Bonds redeemed out of moneys paid to the Trustee
on account of any sinking fund payment shall, regardless of the date
when they were redeemed, for purposes of the second preceding sentence,
be deemed to have been redeemed on the later of (i) the date on which
such moneys were paid to the Trustee or (ii) the sinking fund payment
date when such sinking fund payment was due."
(3) Subsection G of Section 1.10 of the Original Indenture, as
the same may be amended as hereinabove in this Section 1.07 provided,
be further amended by deleting therefrom the last two paragraphs
thereof and inserting therein a new last paragraph to read as follows:
"The aggregate amount of the minimum provision for
depreciation as applied to bondable public utility property and the
aggregate amount of the minimum provision for depreciation as applied
to bondable public utility property not subject to a prior lien from
March 31, 1945 to any date shall be the sum of the corresponding
minimum provision for depreciation for each completed calendar year
between December 31, 1966 and such date, plus (1) the corresponding
minimum provision for depreciation for the period, if any, from the end
of the most recent such completed calendar year to such date, in each
case determined as set forth above, plus (2) $35,023,487.50, plus (3)
an amount equal to the aggregate of (a) the amount of any property
additions which, between December 31, 1966
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<PAGE> 26
and such date, became property additions of the character described in
clause (a) of the second paragraph of this Subsection G and which,
thereafter, also between December 31, 1966 and such date, became
'available additions' as a result of the fact that all Bonds of such
series ceased to be outstanding, and (b) 166-2/3% of the principal
amount of Bonds of any series which, between December 31, 1966 and such
date, become Bonds of the character described in clause (b) of the
second paragraph of this Subsection G and which, thereafter, also
between December 31, 1966 and such date, became available Bond
retirements' as a result of the fact that all Bonds of such series
ceased to be outstanding."
III. Each holder of any Bond of the _______ Series, by acceptance of
such Bond shall thereby consent that, at any time after the requisite consents,
if any, of the holders of Bonds of other series shall have been given as
hereinafter provided.
(1) the subparagraph numbered (3) of the third paragraph of
Section 1.03 of each of the Sixteenth and the Eighteenth through the
Twenty-first Supplemental Indentures and the third paragraph of Section
1.03 of the Twenty-second Supplemental Indenture be amended by
inserting before the words "any available additions thus shown as a
credit" the phrase "provided, however, that so long as any Bonds of the
......... Series are outstanding" and inserting in the blank space of
such phrase the applicable designation of the series of Bonds created
by such supplemental indenture;
(2) (i) the fifth paragraph of Section 1.03 of
the Ninth through the Sixteenth Supplemental
Indentures and the Eighteenth through the
Twenty-second Supplemental Indentures, which begins
with the words "All Bonds made the basis of a credit
upon any sinking fund payment for Bonds", (ii)
Section 1.03 of the Seventeenth, Twenty-third and
Twenty-fourth Supplemental Indentures, (iii) the last
sentence of the fourth paragraph of Section 1.03 of
the First, Third, Fifth, Sixth and Seventh
Supplemental Indentures, which begins with the words
"All Bonds delivered to the Trustee as part of or to
anticipate any sinking fund payment" and (iv) the
last sentence of the fourth paragraph of Section 4.03
of the Original Indenture, which begins with the
words "All Bonds delivered to the Trustee as part of
or to anticipate any sinking fund payment", each be
amended so as to read as follows:
"All Bonds made the basis of a credit upon any sinking fund
payment, and/or (except with respect to Bonds on which a notation of
partial payment shall be made as permitted by any provision of the
Original Indenture, of any supplemental indenture or of any agreement
entered into as permitted by the Original Indenture or by any
supplemental indenture) redeemed (whether on any sinking fund payment
date or in anticipation of any such sinking fund payment) by operation
of the sinking fund, for Bonds of the 1975 Series, or for Bonds of the
1977 Series, or for Bonds of the 1977 Second Series, or for Bonds of
the 1984 Series, or for Bonds of the 1986 Series, or for Bonds of the
4-7/8% Series due 1987, or for Bonds of the 1990 Series, or for Bonds
of the 1991 Series, or for Bonds of the 4-5/8% Series due 1993, or for
Bonds of the 4-3/4% Series due 1993, or for Bonds of
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<PAGE> 27
the 1994 Series, or for Bonds of the 1995 Series, or for Bonds of the
1996 Series, or for Bonds of the 1997 Series, or for Bonds of the 2000
Series, or for Bonds of the 2001 Series, or for Bonds of the 2002
Series, or for Bonds of the 2003 Series, or for Bonds of the 2003
Second Series if not theretofore canceled shall be canceled and, except
as otherwise provided in the supplemental indenture creating such
series of Bonds, or in another supplemental indenture amending such
supplemental indenture, so long as any Bonds of such series are
outstanding shall not (but without limiting the use of the principal
amount thereof in calculating any minimum provision for depreciation
pursuant to the provisions of Subsection G of Section 1.10 of the
Original Indenture as the same may be amended in accordance with the
provisions of any supplemental indenture) be made the basis of the
authentication and delivery of Bonds or of any further action or credit
under the Original Indenture or any supplemental indenture.
"To the extent that
(a) in any given year the principal amount of Bonds made
the basis of a credit upon any sinking fund payment,
and/or redeemed (whether on a sinking fund payment
date or in anticipation of a sinking fund payment) by
operation of the sinking fund, for Bonds of the 1975
Series, or for Bonds of the 1977 Series, or for Bonds
of the 1977 Second Series, or for Bonds of the 1984
Series, or for Bonds of the 1986 Series, or for Bonds
of the 4-7/8% Series due 1987, or for Bonds of the
1990 Series, or for Bonds of the 1991 Series, or for
Bonds of the 4-5/8% Series due 1993, or for Bonds of
the 4-3/4% Series due 1993, or for Bonds of the 1994
Series, or for Bonds of the 1995 Series or for Bonds
of the 1996 Series,
does not exceed
(b) an amount equal to 1% of the greatest aggregate
principal amount of Bonds of such Series theretofore
at any one time outstanding, after deducting from
said aggregate principal amount the sum of the
following amounts, in the event that such sum would
equal $500,000 or more, namely, (1) the aggregate
principal amount of Bonds of such Series theretofore
redeemed by the application of the proceeds of
property released from the lien of the Original
Indenture or taken or purchased pursuant to the
provisions of Article Six of the Original Indenture,
and (2) the aggregate principal amount of Bonds of
such Series theretofore redeemed and retired and made
the basis for the withdrawal of such proceeds
pursuant to Section 7.03 of the Original Indenture or
certified pursuant to Section 6.06 of the Original
Indenture in lieu of the deposit of cash upon the
release or taking of property; and
to the extent that
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<PAGE> 28
(c) in any given year the principal amount of Bonds made
the basis of a credit upon any sinking fund payment,
and/or redeemed (whether on a sinking fund payment
date or in anticipation of a sinking fund payment) by
operation of the sinking fund, for Bonds of the 1997
Series, or for Bonds of the 2000 Series, or for Bonds
of the 2001 Series, or for Bonds of the 2002 Series,
or for Bonds of the 2003 Series, or for Bonds of the
2003 Second Series,
does not exceed
(d) an amount equal to (1) 1% of the greatest aggregate
principal amount of Bonds of such Series theretofore
at any one time outstanding, after making the
deductions from said aggregate principal amount
referred to in clause (b) of this paragraph, minus
(2) 60% of the amount of available additions made the
basis of a credit against such sinking fund payment,
the principal amount of Bonds so made the basis of a credit upon a
sinking fund payment and/or so redeemed by operation of the sinking
fund for Bonds of such Series shall not (but without limiting the use
of the principal amount thereof in calculating any minimum provision
for depreciation pursuant to the provisions of Subsection G of Section
1.10 of the Original Indenture as the same may be amended in accordance
with the provisions of any supplemental indenture) be made the basis of
the authentication and delivery of Bonds or of any other further action
or credit under the Original Indenture or any supplemental indenture;
and
to the extent that
(e) in any given year the amount of available additions
made the basis of a credit against any sinking fund
payment for Bonds of the 1997 Series, or for Bonds of
the 2000 Series, or for Bonds of the 2001 Series, or
for Bonds of the 2002 Series, or for Bonds of the
2003 Series, or for Bonds of the 2003 Second Series,
does not exceed
(f) an amount equal to one and sixty-six and two-thirds
one hundredths percent (1.66-2/3%) of the greatest
aggregate principal amount of Bonds of such Series
theretofore at any one time outstanding, after making
the deductions from said aggregate principal amount
referred to in clause (b) of this paragraph,
the amount of available additions so made the basis of a credit against
a sinking fund payment shall (but without limiting the use of the
amount thereof in calculating any minimum provision for depreciation
pursuant to the provisions of Subsection G of Section 1.10 of the
Original Indenture as the same may be amended in accordance with the
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<PAGE> 29
provisions of any supplemental indenture) be deemed to have been
'included in an officers' certificate filed with the Trustee as the
basis for a sinking fund credit' and to have been 'made the basis for
action or credit hereunder' as such term is defined in Subsection H of
Section 1.10 of the Original Indenture.
"From and after the time when all Bonds of any of the Series
referred to in (a) of the paragraph immediately preceding shall cease
to be outstanding, a principal amount of Bonds equal to the excess of
(i) the aggregate principal amount of Bonds made the
basis of a credit upon all sinking fund payments
and/or redeemed by operation of the sinking fund for
Bonds of such Series as set forth in said (a) in all
years, over
(ii) the aggregate amounts set forth in (b) of the
paragraph immediately preceding with reference to
Bonds of such Series for all years,
shall become 'available Bond retirements' as such term is defined in
Section 1.10.J. of the Original Indenture and may thereafter be
included in Item 4 of any 'certificate of available Bond retirements'
thereafter delivered to and/or filed with the Trustee pursuant to
Section 3.02 of the Original Indenture; and from and after the time
when all Bonds of any of the Series referred to in (c) of the paragraph
immediately preceding shall cease to be outstanding, a principal amount
of Bonds equal to the excess of
(iii) the aggregate principal amount of Bonds made the
basis of a credit upon all sinking fund payments
and/or redeemed by operation of the sinking fund for
Bonds of such Series as set forth in said (c) in all
years, over
(iv) the aggregate amounts set forth in (d) of the
paragraph immediately preceding with reference to
Bonds of such Series for all years,
shall become 'available Bond retirements' as such term is defined in
Section 1.10.J. of the Original Indenture and may thereafter be
included in Item 4 of any 'certificate of available Bond retirements'
thereafter delivered to and/or filed with the Trustee pursuant to
Section 3.02 of the Original Indenture, and an amount of available
additions equal to the excess of
(v) the amount of available additions made the basis of a
credit against all sinking fund payments for Bonds of
such Series as set forth in (e) of the paragraph
immediately preceding in all years, over
(vi) the aggregate amounts set forth in (f) of the
paragraph immediately preceding with reference to
Bonds of such Series for all years,
shall become 'available additions' as such term is defined in Section
1.10.I. of the Original Indenture and may thereafter be included in
Item 5 of any 'certificate of available
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<PAGE> 30
additions' thereafter filed with the Trustee pursuant to Section 3.01
of the Original Indenture.";
(3) subsection H of Section 1.10 of the Original Indenture be
amended by inserting before the semicolon preceding clause (ii)
thereof, and as a part of clause (I) thereof, the words "if, to the
extent that, and so long as, the provisions of this Indenture or any
supplemental indentures creating or providing for any such fund or any
supplemental indentures amending the provisions creating or providing
for any such fund shall preclude the use of property additions so
included in an officers' certificate as the basis for further action or
credit hereunder"; Subsection I of Section 1.10 of the Original
Indenture be amended by changing the reference therein from "Item 5" to
"Item 7"; and Subsection J of Section 1.10 of the Original Indenture be
amended by changing the reference therein from "Item 4" to "Item 5";
(4) paragraph (3) of Section 3.01(A) of the Original Indenture
be amended by changing the period at the end thereof to a comma and
adding the following words thereto: "except to the extent otherwise
provided in this Indenture or in any supplemental indenture";
(5) the Certificate of Available Additions set forth in
Section 3.03.A. of the Original Indenture be amended by
(i) adding new paragraphs (5) and (6) thereto
immediately preceding existing paragraph (5)
thereof, as follows:
"(5) The aggregate amount, if any, of
available additions included in
Item 4 above which were so included
because the same were made the
basis of a credit upon any sinking
fund payment for Bonds of any
series and which have subsequently
again become 'available additions'
as a result of the fact that all
Bonds of such series ceased to be
outstanding, is $.............
"(6) The aggregate amount of available
additions heretofore made the basis
for action or credit under said
Indenture of Mortgage and which
have not subsequently again become
'available additions' as set forth
in Item 5 above, namely Item 4
above minus Item 5 above is
$............"
(ii) renumbering existing paragraph (5) as
paragraph (7) and changing the references in
renumbered paragraph (7) from "Item 3 above
minus Item 4 above" to "Item 3 above minus
Item 6 above",
(iii) renumbering existing paragraphs (6) and (7)
as paragraphs (8) and (9) and changing the
references in renumbered paragraph (9) from
-30-
<PAGE> 31
"Item 5 above minus Item 6 above" to "Item 7
above minus Item 8 above", and
(iv) deleting "Item 7 above" in the second line
of the paragraph immediately succeeding
renumbered paragraph (9) and substituting
"Item 9 above" therefor; and
(6) the Certificate of Available Bond Retirements set forth in
Section 3.03.B. of the Original Indenture be amended by
(i) adding a new paragraph (4) thereto
immediately preceding the existing paragraph
(4) thereof, as follows:
"(4) The aggregate amount, if any, of
Bonds previously made the basis of
a credit upon any sinking fund
payment for Bonds of any series,
and/or redeemed (whether on a
sinking fund payment date or in
anticipation of sinking fund
payment) by operation of the
sinking fund for Bonds of such
series, which have subsequently
become 'available Bond retirements'
as a result of the fact that all
Bonds of such series ceased to be
outstanding is $............"
(ii) renumbering the existing paragraph (4) as
paragraph (5) and revising the same to read
as follows: "The amount of presently
available Bond retirements, namely the sum
of Items (1), (2), (3) and (4) above, is
$............"
(iii) renumbering the existing paragraphs (5) and
(6) as (6) and (7), respectively, and
changing the reference in renumbered
paragraph (7) from "Item 4 minus Item 5" to
"Item 5 minus Item 6".
IV. The amendments of Subsections A, G, H, I and/or J of Section
1.10 of the Original Indenture, of Sections 3.01, 3.03 and/or
4.03 of the Original Indenture and/or of Section 1.03 of the
First, Third, Fifth, Sixth, Seventh and Ninth through
Twenty-fourth Supplemental Indentures set forth above shall,
subject to the Company and the Trustee, in accordance with the
provisions of Section 17.02 of the Original Indenture,
entering into an indenture or indentures supplemental to the
Original Indenture for the purpose of so amending said
Subsections A, G, H, I and/or J, Sections 3.01, 3.03 and/or
4.03 and/or Section 1.03, become effective at such time as the
holders of not less than 75% in principal amount of Bonds then
outstanding or their attorneys-in-fact duly authorized,
including the holders of not less than 60% in principal amount
of the Bonds then outstanding of each series the rights of the
holders of which are affected by such amendment, shall have
consented to such amendment. No further vote or consent of the
holders of Bonds of the ________ Series shall be required to
permit such amendments to become
-31-
<PAGE> 32
effective and in determining whether the holders of not less
than 75% in principal amount of Bonds outstanding at the time
such amendments become effective have consented thereto, the
holders of all Bonds of the ________ Series then outstanding
shall be deemed to have so consented.
SECTION 1.09. This Article shall be of force and effect only so long as
any Bonds of the _____ Series are outstanding.
ARTICLE TWO.
TRUSTEE.
SECTION 2.01. The Trustee hereby accepts the trust hereby created. The
Trustee undertakes, prior to the occurrence of an event of default and after the
curing of all events of default which may have occurred, to perform such duties
and only such duties as are specifically set forth in the Original Indenture as
heretofore and hereby supplemented and modified, on and subject to the terms and
conditions set forth in the Original Indenture as so supplemented and modified,
and in case of the occurrence of an event of default (which has not been cured)
to exercise such of the rights and powers vested in it by the Original Indenture
as so supplemented and modified, 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.
The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Supplemental Indenture or the
Bonds issued hereunder or the due execution thereof by the Company. The Trustee
shall be under no obligation or duty with respect to the filing, registration,
or recording of this Supplemental Indenture or the re-filing, reregistration, or
re-recording thereof The recitals of fact contained herein or in the Bonds
(other than the Trustee's authentication certificate) shall be taken as the
statements solely of the Company, and the Trustee assumes no responsibility for
the correctness thereof.
ARTICLE THREE.
MISCELLANEOUS PROVISIONS.
SECTION 3.01. Although this Supplemental Indenture, for convenience and
for the purpose of reference, is dated ________, 199__, the actual date of
execution by the Company and by the Trustee is as indicated by their respective
acknowledgments hereto annexed.
SECTION 3.02. This Supplemental Indenture is executed and shall be
construed as an indenture supplemental to the Original Indenture as heretofore
supplemented and modified, and as supplemented and modified hereby, the Original
Indenture as heretofore supplemented and modified is in all respects ratified
and confirmed, and the Original Indenture as heretofore and hereby supplemented
and modified shall be read, taken and construed as one and the same instrument.
All terms used in this Supplemental Indenture shall be taken to have the same
meaning as in the Original Indenture except in cases where the context clearly
indicates otherwise.
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<PAGE> 33
SECTION 3.03. In case any one or more of the provisions contained in
this Supplemental Indenture or in the Bonds or coupons 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
Supplemental Indenture, but this Supplemental Indenture shall be construed as if
such invalid or illegal or unenforceable provision had never been contained
herein.
SECTION 3.04. This Supplemental Indenture may be executed in any number
of counterparts, and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts, or as many of them as the Company
and the Trustee shall preserve undestroyed, shall together constitute but one
and the same instrument.
-33-
<PAGE> 34
IN WITNESS WHEREOF, Portland General Electric Company has caused this
Supplemental Indenture to be signed in its corporate name by its President or
one of its Senior Vice Presidents or one of its Vice Presidents and its
corporate seal to be hereunto affixed and attested by its Secretary or one of
its Assistant Secretaries, and in token of its acceptance of the trusts created
hereunder, HSBC Bank USA (formerly Marine Midland Bank) (formerly The Marine
Midland Trust Company of New York) has caused this Supplemental Indenture to be
signed in its corporate name by one of its Vice Presidents or one of its
Assistant Vice Presidents or one of its Corporate Trust Officers and its
corporate seal to be hereunto affixed and attested by one of its Corporate Trust
Officers, all as of the day and year first above written.
PORTLAND GENERAL ELECTRIC COMPANY
By:
-----------------------------
Attest:
- ----------------------------------
[Title]
[Seal]
HSBC BANK USA
By:
-----------------------------
Title:
Attest:
- ----------------------------------
[Title]
[Seal]
-34-
<PAGE> 35
State of Oregon )
) ss.:
County of Multnomah )
The foregoing instrument was acknowledged before me on this _________
day of _______________, 199_ by _____________________, a _______________ of
PORTLAND GENERAL ELECTRIC COMPANY, an Oregon corporation, on behalf of said
corporation.
-------------------------------------
Notary Public for Oregon
My Commission Expires
----------
[NOTARIAL SEAL]
-35-
<PAGE> 36
State of New York )
) ss.:
County of _________ )
The foregoing instrument was acknowledged before me on this
________________ day of __________, 199_ by ______________, an
________________________ of HSBC BANK USA, a New York banking corporation and
trust company, on behalf of said corporation.
------------------------------------
Notary Public, State of New York
No.
------------
Commission Expires
--------------
[NOTORIAL SEAL]
-36-
<PAGE> 37
State of Oregon )
) ss.:
County of Multnomah )
______________________ and ____________________, a ______________ and
_____________, respectively, of PORTLAND GENERAL ELECTRIC COMPANY, an Oregon
corporation, the mortgagor in the foregoing mortgage named, being first duly
sworn, on oath depose and say that they are the officers above-named of said
corporation and that this affidavit is made for and on its behalf by authority
of its Board of Directors and that the aforesaid mortgage is made by said
mortgagor in good faith, and without any design to hinder, delay or defraud
creditors.
Subscribed and sworn to before me this _______ day of ________, 199_.
-----------------------------------
Notary Public for Oregon
My Commission Expires
----------
[NOTARIAL SEAL]
-37-
<PAGE> 38
State of Oregon )
) ss.:
County of Multnomah )
______________________ and ____________________, a ______________ and
_____________, respectively, of PORTLAND GENERAL ELECTRIC COMPANY, an Oregon
corporation, the mortgagor in the foregoing mortgage named, being first duly
sworn, on oath depose and say that they are the officers above-named of said
corporation and that this affidavit is made for and on its behalf by authority
of its Board of Directors and that the aforesaid mortgage is made by said
mortgagor in good faith, and without any design to hinder, delay or defraud
creditors.
Subscribed and sworn to before me this _______ day of ________, 199_.
-------------------------------------
Notary Public for Oregon
My Commission Expires
----------
[NOTARIAL SEAL]
-38-
<PAGE> 39
1. Bracketed material is to be inserted only if Bonds are to be issued as a
global security held by a depository.
2. Bracketed material may be changed if Bonds of the series to which this
Supplemental Indenture relates are to bear interest at a rate which may change
during the life of such Bonds, or are to be authenticated and delivered
periodically and with variations in the date of issuance, maturity date,
interest rate, interest payment date, place of payment of interest, and/or
redemption provisions as between individual Bonds of a series.
3. If Bonds are not issued as a global security held by a depository, names of
record owners are to be inserted.
4. May be omitted or changed if the Bonds of the series to which this
Supplemental Indenture relates are to be nonredeemable or the redemption
provisions with respect thereto differ from those described.
5. Bracketed material to be omitted if there is no sinking fund to be provided
for the Bonds of the series to which this Supplemental Indenture relates.
6. To be omitted if there is a sinking fund, in which case provisions providing
for the sinking fund may be inserted.
7. May be inserted if Bonds of the series to which this Supplemental Indenture
relate are to bear interest at a rate which may change during the life of the
Bonds.
8. May be omitted or changed if there is no sinking fund to be provided for the
Bonds of the Series to which this Supplemental Indenture relates or if the
sinking fund provisions with respect thereto differ from those described.
-39-
<PAGE> 1
EXHIBIT 4(d)
================================================================================
PORTLAND GENERAL ELECTRIC COMPANY
TO
HSBC BANK USA
(FORMERLY MARINE MIDLAND BANK)
(FORMERLY THE MARINE MIDLAND TRUST
COMPANY OF NEW YORK)
Trustee.
-----------------------
Supplemental Indenture
-------
Dated
---------
-----------------------
First Mortgage Bonds,
Medium Term Note Series
--
-----------------------
Supplemental to Indenture of Mortgage and Deed of Trust,
dated July 1, 1945 of Portland General Electric Company.
================================================================================
<PAGE> 2
______________SUPPLEMENTAL INDENTURE, dated_________________, 199_ made
by and between Portland General Electric Company, an Oregon corporation
(hereinafter called the "Company"), party of the first part, and HSBC Bank USA
(formerly Marine Midland Bank) (formerly The Marine Midland Trust Company of New
York), a New York banking corporation and trust company (hereinafter called the
"Trustee"), party of the second part.
WHEREAS, the Company has heretofore executed and delivered its
Indenture of Mortgage and Deed of Trust (herein sometimes referred to as the
"Original Indenture"), dated July 1, 1945, to the Trustee to secure an issue of
First Mortgage Bonds of the Company; and
WHEREAS, Bonds in the aggregate principal amount of $34,000,000 have
heretofore been issued under and in accordance with the terms of the Original
Indenture as Bonds of an initial series designated "First Mortgage Bonds, 3 1/8%
Series due 1975" (herein sometimes referred to as the "Bonds of the 1975
Series"); and
WHEREAS, the Company has heretofore executed and delivered to the
Trustee several supplemental indentures which provided, among other things, for
the creation or issuance of several new series of First Mortgage Bonds under the
terms of the Original Indenture as follows:
<TABLE>
<CAPTION>
SUPPLEMENTAL INDENTURE DATED SERIES DESIGNATION PRINCIPAL AMOUNT
- ----------------------- ------- ----------------------------- ----------------
<S> <C> <C> <C>
First 11-1-47 3-1/2% Series due 1977 $ 6,000,000 (1)
Second 11-1-48 3-1/2% Series due 1977 4,000,000 (1)
Third 5-1-52 3-1/2% Second Series due 1977 4,000,000 (1)
Fourth 11-1-53 4-1/8% Series due 1983 8,000,000 (2)
Fifth 11-1-54 3-3/8% Series due 1984 12,000,000 (1)
Sixth 9-1-56 4-1/4% Series due 1986 16,000,000 (1)
Seventh 6-1-57 4-7/8% Series due 1987 10,000,000 (1)
Eighth 12-1-57 5-1/2% Series due 1987 15,000,000 (3)
Ninth 6-1-60 5-1/4% Series due 1990 15,000,000 (1)
Tenth 11-1-61 5-1/8% Series due 1991 12,000,000 (1)
Eleventh 2-1-63 4-5/8% Series due 1993 15,000,000 (1)
Twelfth 6-1-63 4-3/4% Series due 1993 18,000,000 (1)
Thirteenth 4-1-64 4-3/4% Series due 1994 18,000,000 (1)
Fourteenth 3-1-65 4.70% Series due 1995 14,000,000 (1)
Fifteenth 6-1-66 5-7/8% Series due 1996 12,000,000 (1)
Sixteenth 10-1-67 6.60% Series due October 1, 1997 24,000,000 (1)
Seventeenth 4-1-70 8-3/4% Series due April 1, 1977 20,000,000 (1)
Eighteenth 11-1-70 9-7/8% Series due November 1, 2000 20,000,000 (4)
Nineteenth 11-1-71 8% Series due November 1, 2001 20,000,000 (4)
Twentieth 11-1-72 7-3/4% Series due November 1, 2002 20,000,000
Twenty-first 4-1-73 7.95% Series due April 1, 2003 35,000,000
Twenty-second 10-1-73 8-3/4% Series due October 1, 2003 17,000,000 (4)
Twenty-third 12-1-74 10-1/2% Series due December 1, 1980 40,000,000 (1)
Twenty-fourth 4-1-75 10% Series due April 1, 1982 40,000,000 (1)
Twenty-fifth 6-1-75 9-7/8% Series due June 1, 1985 27,000,000 (1)
</TABLE>
-2-
<PAGE> 3
<TABLE>
<CAPTION>
SUPPLEMENTAL INDENTURE DATED SERIES DESIGNATION PRINCIPAL AMOUNT
- ----------------------- ------- ----------------------------- ----------------
<S> <C> <C> <C>
Twenty-sixth 12-1-75 11-5/8% Series due December 1, 2005 50,000,000 (4)
Twenty-seventh 4-1-76 9-1/2% Series due April 1, 2006 50,000,000 (4)
Twenty-eighth 9-1-76 9-3/4% Series due September 1, 1996 62,500,000 (4)
Twenty-ninth 6-1-88 8-3/4% Series due June 1, 2007 50,000,000 (4)
Thirtieth 10-1-78 9.40% Series due January 1, 1999 25,000,000 (4)
Thirty-first 11-1-78 9.80% Series due November 1, 1998 50,000,000 (4)
Thirty-second 2-1-80 13-1/4% Series due February 1, 2000 55,000,000 (4)
Thirty-third 8-1-80 13-7/8% Series due August 1, 2010 75,000,000 (4)
Thirty-sixth 10-1-82 13-1/2% Series due October 1, 2012 75,000,000 (4)
Thirty-seventh 11-15-84 11-5/8% Extendable Series A due 75,000,000 (4)
November 15, 1999
Thirty-eighth 6-1-85 10-3/4% Series due June 1, 1995 60,000,000 (4)
Thirty-ninth 3-1-86 9-5/8% Series due March 1, 2016 100,000,000 (4)
Fortieth 10-1-90 Medium Term Note Series 200,000,000
Forty-first 12-1-91 Medium Term Note Series I 150,000,000
Forty-second 4-1-93 7-3/4% Series due April 15, 2023 150,000,000
Forty-third 7-1-93 Medium Term Notes Series II 75,000,000
Forty-fourth 8-1-94 Medium Term Notes Series III 75,000,000
Forty-fifth 5-1-95 Medium Term Notes Series IV 75,000,000
Forty-sixth 8-1-96 Medium Term Notes Series V 50,000,000
</TABLE>
(1) Paid in full at maturity.
(2) This entire issue of Bonds was redeemed out of proceeds from the sale
of First Mortgage Bonds, 3-3/8% Series due 1984.
(3) This entire issue of Bonds was redeemed out of proceeds from the sale
of First Mortgage Bonds, 4-5/8% Series due 1993.
(4) Redeemed in full prior to maturity.
which bonds are sometimes referred to herein as the "Bonds of the 1977 Series",
"Bonds of the 1977 Second Series", "Bonds of the 1983 Series", "Bonds of the
1984 Series", "Bonds of the 1986 Series", "Bonds of the 47/8% Series due 1987",
"Bonds of the 5 1/2% Series due 1987", "Bonds of the 1990 Series", "Bonds of the
1991 Series", "Bonds of the 45/8% Series due 1993", "Bonds of the 4 3/4% Series
due 1993", "Bonds of the 1994 Series", "Bonds of the 1995 Series", "Bonds of the
1996 Series", "Bonds of the 1997 Series", "Bonds of the 1977 Third Series",
"Bonds of the 2000 Series", "Bonds of the 2001 Series", "Bonds of the 2002
Series", "Bonds of the 2003 Series", "Bonds of the 2003 Second Series", "Bonds
of the 1980 Series", "Bonds of the 1982 Series", "Bonds of the 1985 Series",
"Bonds of the 2005 Series", "Bonds of the 2006 Series", "Bonds of the 1996
Second Series", "Bonds of the 2007 Series", "Bonds of the 1999 Series", "Bonds
of the 1998 Series", "Bonds of the 2000 Second Series", "Bonds of the 2010
Series", "Bonds of the 2012 Series", "Bonds of the Extendable Series A", "Bonds
of the 1995 Second Series", "Bonds of the 2016 Series", "Bonds of the Medium
Term Note Series", "Bonds of the Medium Term Note Series I", "Bonds of the 2023
Series", "Bonds of the Medium Term Note Series II", "Bonds of the Medium Term
Note Series III", "Bonds of the Medium Term Note Series IV", and "Bonds of the
Medium Term Note Series V," respectively; and
WHEREAS, the Original Indenture provides that the Company and the
Trustee, subject to the conditions and restrictions in the Original Indenture
contained, may enter into an indenture or
-3-
<PAGE> 4
indentures supplemental thereto, which shall thereafter form a part of said
Original Indenture, among other things, to mortgage, pledge, convey, transfer or
assign to the Trustee and to subject to the lien of the Original Indenture with
the same force and effect as though included in the granting clauses thereof,
additional properties acquired by the Company after the execution and delivery
of the Original Indenture, and to provide for the creation of any series of
Bonds (other than the Bonds of the 1975 Series), designating the series to be
created and specifying the form and provisions of the Bonds of such series as
therein provided or permitted, and to provide a sinking, amortization,
replacement or other analogous fund for the benefit of all or any of the Bonds
of any one or more series, of such character and of such amount, and upon such
terms and conditions as shall be contained in such supplemental indenture; and
WHEREAS, the Company has heretofore executed and delivered to the
Trustee the Fortieth Supplemental Indenture and the Forty-first Supplemental
Indenture amending in certain respects the Original Indenture, as theretofore
supplemented (such Original Indenture as so amended is hereinafter referred to
as the "Original Indenture"); and
WHEREAS, the Company desires to provide for the creation of a new
series of bonds to be known as "First Mortgage Bonds, Medium Term Note Series
__" (sometimes herein referred to as the "Bonds of the Medium Term Note Series
__"), and to specify the form and provisions of the Bonds of such series, and to
mortgage, pledge, convey, transfer or assign to the Trustee and to subject to
the lien of the Original Indenture certain additional properties acquired by the
Company since the execution and delivery of the Original Indenture; and
WHEREAS, the Company intends at this time and from time to time to
issue an aggregate principal amount of Bonds of the Medium Term Note Series__
not to exceed $___ under and in accordance with the terms of the Original
Indenture and the supplemental indentures above referred to; and
WHEREAS, the Bonds of the Medium Term Note Series __ and the Trustee's
authentication certificate to be executed on the Bonds of the Medium Term Note
Series __ are to be substantially in the following forms, respectively:
-4-
<PAGE> 5
(Form of Bond of the Medium Term Note Series __)
[Face of Bond]
[THIS BOND IS A BOOK-ENTRY GLOBAL BOND 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 BOND IS EXCHANGEABLE FOR BONDS REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED BELOW, AND NO TRANSFER OF THIS BOND (OTHER THAN
A TRANSFER OF THIS BOND 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 OR BY THE DEPOSITORY OR ANY SUCH NOMINEE OF THE
DEPOSITORY TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY)
MAY BE REGISTERED EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY 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 DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), 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.](1)
Registered Registered
No. $
PORTLAND GENERAL ELECTRIC COMPANY
FIRST MORTGAGE BOND, MEDIUM TERM NOTE SERIES
[Fixed Rate](2)
<TABLE>
<S> <C> <C>
ORIGINAL ISSUE DATE: [INITIAL INTEREST MATURITY DATE:
RATE: %](3)
INTEREST PAYMENT INTEREST PAYMENT INITIAL REGULAR
DATES: PERIOD:
REDEMPTION DATE:
INITIAL REGULAR ANNUAL REGULAR OPTIONAL REPAYMENT
REDEMPTION PERCENTAGE: REDEMPTION PERCENTAGE DATE(S):
REDUCTION:
[BASE RATE:](2) [INTEREST RESET
PERIOD: ](2)
[SPREAD MULTIPLIER:](2) [MAXIMUM INTEREST [INTEREST RESET
RATE: %](2) DATES: ](2)
[SPREAD:](2) [MINIMUM INTEREST [INDEX MATURITY:](2)
RATE: %](2)
</TABLE>
-5-
<PAGE> 6
Portland General Electric Company, an Oregon corporation (hereinafter
sometimes called the "Company"), for value received, hereby promises to pay to
[Cede & Co.,]1 [____________,](3) or registered assigns, _______________________
__________ Dollars on the Maturity Date specified above (except to the extent
redeemed or repaid prior to the Maturity Date), and to pay interest thereon [at
the Interest Rate per annum](2) specified above, [until the principal hereof is
paid or duly made available for payment, monthly, quarterly, semiannually or
annually, as specified above as the Interest Payment Period, and on the Interest
Payment Dates specified above, in each year commencing on the first Interest
Payment Date next succeeding the Original Issue Date specified above, unless the
Original Issue Date occurs between a Regular Record Date, as defined below, and
the next succeeding Interest Payment Date, in which case commencing on the
second Interest Payment Date succeeding the Original Issue Date, to the
registered holder of this bond on the Regular Record Date with respect to such
Interest Payment Date, and on the Maturity Date shown above (or any Redemption
Date as described on the reverse hereof or any Optional Repayment Date specified
above).](2) Interest on this bond will accrue from [the most recent Interest
Payment Date to which interest has been paid or duly provided for or, if no
interest has been paid, from the Original Issue Date specified above, until the
principal hereof has been paid or duly made available for payment.](2) If the
Maturity Date (or any Redemption Date or any Optional Repayment Date) or an
Interest Payment Date falls on a day which is not a Business Day as defined
below, principal or interest payable with respect to such Maturity Date (or
Redemption Date or Optional Repayment Date) or Interest Payment Date will be
paid [on the next succeeding Business Day](2) with the same force and effect as
if made on such Maturity Date (or Redemption Date or Optional Repayment Date) or
Interest Payment Date, as the case may be, and no interest shall accrue for the
period from and after such Maturity Date (or Redemption Date or Optional
Repayment Date) or Interest Payment Date. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, subject
to certain exceptions, be paid to the person in whose name this bond (or one or
more predecessor bonds) is registered at the close of business on the fifteenth
day (whether or not a Business Day) next preceding such Interest Payment Date
(the "Regular Record Date"); provided, however, that interest payable on the
Maturity Date (or any Redemption Date or any Optional Repayment Date) will be
payable to the person to whom the principal hereof shall be payable. Should the
Company default in the payment of interest ("Defaulted Interest"), the Defaulted
Interest shall be paid to the person in whose name this bond (or one or more
predecessor bonds) is registered on a subsequent record date fixed by the
Company, which subsequent record date shall be fifteen (15) days prior to the
payment of such Defaulted Interest. As used herein, "Business Day" means any
day, other than a Saturday or Sunday, [on which banks in The City of New York
are not required or authorized by law to close.](2)
Payment of the principal of and interest on this bond will be made in
immediately available funds at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan, The City of New York, in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest on any Interest Payment Date other than the Maturity Date (or any
Redemption Date or any Optional Repayment Date) may be made at the option of the
Company by check mailed to the address of the person entitled thereto as such
address shall appear in the bond register of the Company. A person holding
$10,000,000 or more in aggregate principal amount of bonds having the same
Interest Payment Date (whether having identical or different terms and
provisions) will be entitled to receive payments of interest by wire transfer of
immediately available funds if appropriate
-6-
<PAGE> 7
written wire transfer instructions have been received by the Trustee not less
than sixteen days prior to the applicable Interest Payment Date.
Reference is hereby made to the further provisions of this bond set
forth on the reverse hereof, and such further provisions shall for all purposes
have the same effect as though fully set forth at this place.
This bond shall not become or be valid or obligatory for any purpose
until the authentication certificate hereon shall have been signed by the
Trustee.
IN WITNESS WHEREOF, PORTLAND GENERAL ELECTRIC COMPANY has caused
this instrument to be executed manually or in facsimile by its duly authorized
officers and has caused a facsimile of its corporate seal to be imprinted
hereon.
Dated
----------
PORTLAND GENERAL ELECTRIC COMPANY,
By:
--------------------------------
[Title]
Attest:
-----------------------------
Secretary.
(Form of Trustee's Authentication Certificate
for Bonds of the Medium Term Note Series )
This is one of the bonds, of the series designated herein, described in
the within-mentioned Indenture.
HSBC BANK USA, AS TRUSTEE,
By:
--------------------------------
Authorized Officer
-7-
<PAGE> 8
[Reverse of Bond]
This bond is one of the bonds, of a series designated as Medium Term
Note Series of an authorized issue of bonds of the Company, known as First
Mortgage Bonds, not limited as to maximum aggregate principal amount, all issued
or issuable in one or more series under and equally secured (except insofar as
any sinking fund, replacement fund or other fund established in accordance with
the provisions of the Indenture hereinafter mentioned may afford additional
security for the bonds of any specific series) by an Indenture of Mortgage and
Deed of Trust dated July 1, 1945, duly executed and delivered by the Company to
The Marine Midland Trust Company of New York (now Marine Midland Bank), as
Trustee, as supplemented and modified by ______ supplemental indentures (such
Indenture of Mortgage and Deed of Trust as so supplemented and modified being
hereinafter called the "Indenture"), to which Indenture and all indentures
supplemental thereto, reference is hereby made for a description of the property
mortgaged and pledged as security for said bonds, the nature and extent of the
security, and the rights, duties and immunities thereunder of the Trustee, the
rights of the holders of said bonds and of the Trustee and of the Company in
respect of such security, and the terms upon which said bonds may be issued
thereunder.
[This bond will not be subject to any sinking fund.]4
This bond may be subject to repayment at the option of the holder on
the Optional Repayment Date(s), if any, indicated on the face hereof. If no
Optional Repayment Dates are set forth on the face hereof, this bond may not be
so repaid at the option of the holder hereof prior to maturity. On any Optional
Repayment Date this bond shall be repayable in whole or in part in increments of
$1,000 (provided that any remaining principal hereof shall be at least $100,000)
at the option of the holder hereof at a repayment price equal to 100% of the
principal amount to be repaid, together with interest thereon payable to the
date of repayment. For this bond to be repaid in whole or in part at the option
of the holder hereof, this bond must be received, with the form entitled "Option
to Elect Repayment" below duly completed, by the Trustee at 140 Broadway, New
York, New York 10015-1180, or such address which the Company shall from time to
time notify the holders of the bonds, not more than 60 nor less than 20 days
prior to an Optional Repayment Date. Exercise of such repayment option by the
holder hereof shall be irrevocable.
This bond may be redeemed by the Company on any date on and after the
Initial Regular Redemption Date, if any, indicated on the face hereof. If no
Initial Regular Redemption Date is set forth on the face hereof, this bond may
not be redeemed prior to maturity, except as provided in the second succeeding
paragraph. On and after the Initial Regular Redemption Date, if any, this bond
may be redeemed at any time in whole or from time to time in part in increments
of $1,000 (provided that any remaining principal hereof shall be at least
$100,000) at the option of the Company at the applicable Regular Redemption
Price (as defined below) together with interest thereon payable to the date of
such redemption, on notice given not more than 90 nor less than 30 days prior to
such date. Any date on which Bonds are to be redeemed is herein called a
"Redemption Date".
The "Regular Redemption Price" shall initially be the Initial Regular
Redemption Percentage, shown on the face hereof, of the principal amount of this
bond to be redeemed and shall decline at each anniversary of the Initial Regular
Redemption Date, shown on the face hereof, by the Annual
-8-
<PAGE> 9
Regular Redemption Percentage Reduction, if any, shown on the face hereof, of
the principal amount to be redeemed until the Regular Redemption Price is 100%
of such principal amount.
The Bonds may be redeemed prior to maturity as a whole at any time or
in part from time to time (in increments as specified in the second preceding
paragraph) in the instances provided in the Indenture by the application of
proceeds of the sale or disposition substantially as an entirety of the
Company's electric properties at Portland, Oregon, upon payment of the principal
amount thereof, together with interest accrued to the date of such redemption,
on notice given as provided in such second preceding paragraph.
[Interest payments on this bond will include interest accrued to but
excluding the Interest Payment Date or the Maturity Date, as the case may be.
Interest payments for this bond will be computed and paid on the basis of a
360-day year of twelve 30-day months.]2
If this bond or any portion thereof ($1,000 or an integral multiple
thereof) is duly called for redemption and payment duly provided for as
specified in the Indenture, this bond or such portion thereof shall cease to be
entitled to the lien of the Indenture from and after the date payment is so
provided for and shall cease to bear interest from and after the redemption date
fixed for such redemption.
In the event of the selection for redemption of a portion only of the
principal of this bond, payment of the redemption price will be made only upon
surrender of this bond in exchange for a bond or bonds (but only of authorized
denominations) for the unredeemed balance of the principal amount of this bond.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than seventy-five percent
in principal amount of the bonds (exclusive of bonds disqualified by reason of
the Company's interest therein) at the time outstanding, including, if more than
one series of bonds shall be at the time outstanding, not less than sixty
percent in principal amount of each series affected, to effect, by an indenture
supplemental to the Indenture, modifications or alterations of the Indenture and
of the rights and obligations of the Company and of the holders of the bonds and
coupons; provided, however, that no such modification or alteration shall be
made without the written approval or consent of the holder hereof which will (a)
extend the maturity of this bond or reduce the rate or extend the time of
payment of interest hereon or reduce the amount of the principal hereof or
reduce any premium payable on the redemption hereof, (b) permit the creation of
any lien, not otherwise permitted, prior to or on a parity with the lien of the
Indenture, or (c) reduce the percentage of the principal amount of the bonds
upon the approval or consent of the holders of which modifications or
alterations may be made as aforesaid.
This bond is transferable by the registered owner hereof in person or
by his attorney duly authorized in writing, at the corporate trust office of the
Trustee in the Borough of Manhattan, City and State of New York, upon surrender
of this bond for cancellation and upon payment of any taxes or other
governmental charges payable upon such transfer, and thereupon a new registered
bond or bonds of the same series and of a like aggregate principal amount will
be issued to the transferee or transferees in exchange therefor.
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<PAGE> 10
The Company, the Trustee and any paying agent may deem and treat the
person in whose name this bond is registered as the absolute owner hereof for
the purpose of receiving payments of or an account of the principal hereof and
interest due hereon, and for all other purposes, whether or not this bond shall
be overdue, and neither the Company, the Trustee nor any paying agent shall be
affected by any notice to the contrary.
Bonds of this series are issuable only in fully registered form without
coupons in denominations of $1,000 or integral multiples thereof. The registered
owner of this bond at his option may surrender the same for cancellation at said
office of the Trustee and receive in exchange therefor the same aggregate
principal amount of registered bonds of the same series and with the same terms
and provisions, including the same issue date, maturity date, and redemption
provisions, if any, and which bear interest at the same rate, but of other
authorized denominations, upon payment of any taxes or other governmental
charges payable upon such exchange and subject to the terms and conditions set
forth in the Indenture.
If an event of default as defined in the Indenture shall occur, the
principal of this bond may become or be declared due and payable before maturity
in the manner and with the effect provided in the Indenture. The holders,
however, of certain specified percentages of the bonds at the time outstanding,
including in certain cases specified percentages of bonds of particular series,
may in the cases, to the extent and as provided in the Indenture, waive certain
defaults thereunder and the consequences of such defaults.
No recourse shall be had for the payment of the principal of or the
interest on this bond, or for any claim based hereon, or otherwise in respect
hereof or of the Indenture, against any incorporator, shareholder, director or
officer, past, present or future, as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or such
predecessor or successor corporation, under any constitution or statute or rule
of law, or by the enforcement of any assessment or penalty, or otherwise, all
such liability of incorporators, shareholders, directors and officers, as such,
being waived and released by the holder and owner hereof by the acceptance of
this bond and as provided in the Indenture.
The Indenture provides that this bond 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 and governed by the laws of said State.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this bond (or portion hereof specified below) pursuant to its
terms at a price equal to the principal amount hereof together with interest to
the repayment date, to the undersigned, at
--------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address of the undersigned)
For this bond to be repaid, the Trustee must receive at 140 Broadway,
New York, New York 10015-1180, or at such other place or places of which the
Company shall from time to time notify the holder of this bond, not more than 60
nor less than 20 days prior to an Optional Repayment Date, if any, shown on the
face of this bond, this bond with this "Option to Elect Repayment" form duly
completed.
-10-
<PAGE> 11
If less than the entire principal amount of this bond is to be repaid,
specify the portion hereof (which shall be in increments of $1,000) which the
holder elects to have repaid and specify the denomination or denominations
(which shall be $1,000 or an integral multiple of $1,000) of the bonds to be
issued to the holder for the portion of this bond not being repaid (in the
absence of any such specification, one such bond will be issued for the portion
not being repaid).
$
--------------- -------------------------------
NOTICE: The signature on this Option to
Date Elect Repayment must correspond with the name as
------------- written upon the face of this bond in every
particular, without alteration or enlargement or
any change whatever.
(End of Form of Bond of the Medium Term Note Series __)
and
WHEREAS, all acts and proceedings required by law and by the charter or
articles of incorporation and bylaws of the Company necessary to make the Bonds
of the Medium Term Note Series to be issued hereunder, when executed by the
Company, authenticated and delivered by the Trustee and duly issued, the valid,
binding and legal obligations of the Company, and to constitute this
Supplemental Indenture a valid and binding instrument, have been done and taken;
and the execution and delivery of this Supplemental Indenture have been in all
respects duly authorized;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH, that, in order
to secure the payment of the principal of, premium, if any, and interest on all
Bonds at any time issued and outstanding under the Original Indenture as
supplemented and modified by the ____________ supplemental indentures
hereinbefore described and as supplemented and modified by this Supplemental
Indenture, according to their tenor, purport and effect, and to secure the
performance and observance of all the covenants and conditions therein and
herein contained, and for the purpose of confirming and perfecting the lien of
the Original Indenture on the properties of the Company hereinafter described,
or referred to, and for and in consideration of the premises and of the mutual
covenants herein contained, and acceptance of the Bonds of the Medium Term Note
Series by the holders thereof, and for other valuable consideration, the receipt
whereof is hereby acknowledged, the Company has executed and delivered this
Supplemental Indenture and by these presents does grant, bargain, sell, warrant,
alien, convey, assign, transfer, mortgage, pledge, hypothecate, set over and
confirm unto the Trustee the following property, rights, privileges and
franchises (in addition to all other property, rights, privileges and franchises
heretofore subjected to the lien of the Original Indenture as supplemented by
the ___________ supplemental indentures hereinbefore described and not
heretofore released from the lien thereof), to wit:
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<PAGE> 12
CLAUSE I
Without in any way limiting anything hereinafter described, all and
singular the lands, real estate, chattels real, interests in land, leaseholds,
ways, rights-of-way, easements, servitudes, permits and licenses, lands under
water, riparian rights, franchises, privileges, electric generating plants,
electric transmission and distribution systems, and all apparatus and equipment
appertaining thereto, offices, buildings, warehouses, garages, and other
structures, tracks, machine shops, materials and supplies and all property of
any nature appertaining to any of the plants, systems, business or operations of
the Company, whether or not affixed to the realty, used in the operation of any
of the premises or plants or systems or otherwise, which have been acquired by
the Company since the execution and delivery of the Original Indenture and not
heretofore included in any indenture supplemental thereto, and now owned or
which may hereafter be acquired by the Company (other than excepted property as
defined in the Original Indenture).
CLAUSE II
All corporate, Federal, State, municipal and other permits, consents,
licenses, bridge licenses, bridge rights, river permits, franchises, grants,
privileges and immunities of every kind and description, owned, held, possessed
or enjoyed by the Company (other than excepted property as defined in the
Original Indenture) and all renewals, extensions, enlargements and modifications
of any of them, which have been acquired by the Company since the execution and
the delivery of the Original Indenture and not heretofore included in any
indenture supplemental thereto, and now owned or which may hereafter be acquired
by the Company.
CLAUSE III
Together with all and singular the plants, buildings, improvements,
additions, tenements, hereditaments, easements, rights, privileges, licenses and
franchises and all other appurtenances whatsoever belonging or in any wise
pertaining to any of the property hereby mortgaged or pledged, or intended so to
be, or any part thereof, and the reversion and reversions, remainder and
remainders, and the rents, revenues, issues, earnings, income, products and
profits thereof, and every part and parcel thereof, and all the estate, right,
title, interest, property, claim and demand of every nature whatsoever of the
Company at law, in equity or otherwise howsoever, in, of and to such property
and every part and parcel thereof.
TO HAVE AND TO HOLD all of said property, real, personal and mixed, and
all and singular the lands, properties, estates, rights, franchises, privileges
and appurtenances hereby mortgaged, conveyed, pledged or assigned, or intended
so to be, together with all the appurtenances thereto appertaining and the
rents, issues and profits thereof, unto the Trustee and its successors and
assigns, forever:
SUBJECT, HOWEVER, to the exceptions, reservations, restrictions,
conditions, limitations, covenants and matters contained in all deeds and other
instruments whereunder the Company has acquired any of the property now owned by
it, and to permitted encumbrances as defined in Subsection B of Section 1.11 of
the Original Indenture;
BUT IN TRUST NEVERTHELESS, for the equal and proportionate use,
benefit, security and protection of those who from time to time shall hold the
Bonds and coupons authenticated and
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<PAGE> 13
delivered under the Original Indenture and the ___________ supplemental
indentures hereinbefore described or this Supplemental Indenture, and duly
issued by the Company, without any discrimination, preference or priority of any
one bond or coupon over any other by reason of priority in the time of issue,
sale or negotiation thereof or otherwise, except as provided in Section 11.28 of
the Original Indenture, so that, subject to said Section 11.28, each and all of
said Bonds and coupons shall have the same right, lien and privilege under the
Original Indenture and the ___________ supplemental indentures hereinbefore
described, or this Supplemental Indenture, and shall be equally secured thereby
and hereby and shall have the same proportionate interest and share in the trust
estate, with the same effect as if all of the Bonds and coupons had been issued,
sold and negotiated simultaneously on the date of delivery of the Original
Indenture;
AND UPON THE TRUSTS, USES AND PURPOSES and subject to the covenants,
agreements and conditions in the Original Indenture and the ___________
supplemental indentures hereinbefore described and herein set forth and
declared.
ARTICLE ONE.
BONDS OF THE MEDIUM TERM NOTE SERIES AND
CERTAIN PROVISIONS RELATING THERETO.
SECTION 1.01. Certain Terms of Bonds of the Medium Term Note Series
. The aggregate principal amount of the Bonds of the Medium Term Note
Series shall be limited to $ , excluding, however, any Bonds of the Medium
Term Note Series which may be executed, authenticated and delivered in exchange
for or in lieu of or in substitution for other Bonds of such Series pursuant to
the provisions of the Original Indenture or of this Supplemental Indenture.
The definitive Bonds of the Medium Term Note Series shall be
issuable only in fully registered form without coupons in the denomination of
$1,000, or any amount in excess thereof that is an integral multiple of $1,000.
Notwithstanding the provisions of Section 2.05 of the Original Indenture, each
Bond of the Medium Term Note Series shall be dated as of the date of its
authentication, and shall mature on such date not less than nine months nor more
than thirty years from such date, shall bear interest from such date, shall bear
interest at such rate or rates, which may be fixed or variable, and have such
other terms and conditions not inconsistent with the Original Indenture as the
Board of Directors of the Company, or any officer of the Company acting pursuant
to authority granted by the Board of Directors may determine (the execution of
any bond of the Medium Term Note Series by any authorized officer of the Company
being, with regard to any holder of such bond, conclusive evidence of such
approval). Interest on Bonds of the Medium Term Note Series shall be payable on
the dates established on the date of first authentication of such Bond
("Original Issue Date"). The person in whose name any Bond of the Medium Term
Note Series is registered at the close of business on the applicable record date
with respect to any interest payment date shall be entitled to receive the
interest payable thereon on such interest payment date notwithstanding the
cancellation of such Bond upon any transfer or exchange thereof subsequent to
such record date and prior to such interest payment date, unless the Company
shall default in the payment of the interest due on such interest payment date,
in which case such defaulted interest shall be paid to the person in whose name
such Bond is registered on a subsequent record date fixed by the Company, which
subsequent record date shall be fifteen (15) days prior to the
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<PAGE> 14
payment of such defaulted interest. Such interest payments shall be made in such
manner and in such places as provided on the Form of Bonds of the Medium Term
Note Series set forth in this Supplemental Indenture. The principal of the Bonds
of the Medium Term Note Series shall be payable in any coin or currency of the
United States of America which at the time of payment is legal tender for the
payment of public and private debts at the office or agency of the Company in
the Borough of Manhattan, City and State of New York, and interest and premium,
if any, on such Bonds shall be payable in like coin or currency at said office
or agency.
The definitive Bonds of the Medium Term Note Series may be issued in
the form of Bonds, engraved, printed or lithographed on steel engraved borders.
Upon compliance with the provisions of Section 2.06 of the Original
Indenture and as provided in this Supplemental Indenture, and upon payment of
any taxes or other governmental charges payable upon such exchange, Bonds of the
Medium Term Note Series may be exchanged for a new Bond or Bonds of different
authorized denominations of like aggregate principal amount.
The Trustee hereunder shall, by virtue of its office as such Trustee,
be the registrar and transfer agent of the Company for the purpose of
registering and transferring Bonds of the Medium Term Note Series .
Notwithstanding the provisions of Section 2.11 of the Original
Indenture, no service charge shall be made for any exchange or transfer of Bonds
of the Medium Term Note Series , but the Company at its option may require
payment of a sum sufficient to cover any tax or other governmental charge
incident thereto.
SECTION 1.02. Redemption Provisions for Bonds of the Medium Term Note
Series . The Bonds of the Medium Term Note Series shall be subject to redemption
prior to maturity as a whole at any time or in part from time to time, including
by operation of a sinking fund, as the Board of Directors of the Company, or any
officer of the Company acting pursuant to authority granted by the Board of
Directors may determine, and as set forth on the Form of Bonds of the Medium
Term Note Series set forth in this Supplemental Indenture.
The Bonds of the Medium Term Note Series which are redeemable on the
payment of a Regular Redemption Price as provided for in this Section 1.02 may
be redeemed at such Regular Redemption Price through the application of cash
deposited with the Trustee pursuant to Section 6.04 of the Original Indenture
upon the taking, purchase or sale of any property subject to the lien hereof or
thereof in the manner set forth in said Section.
The Bonds of the Medium Term Note Series are also subject to
redemption through the application of proceeds of the sale or disposition
substantially as an entirety of the Company's electric properties at Portland,
Oregon, which proceeds are required by the provisions of Section 7.01 of the
Original Indenture to be applied to the retirement of Bonds, upon payment of the
principal amount thereof together with interest thereon payable to the date of
redemption.
SECTION 1.03. Notwithstanding the provisions of Section 4.07 of the
Original Indenture, the provisions of Sections 4.04, 4.05, and 4.06 of the
Original Indenture shall remain in full force
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<PAGE> 15
and effect and shall be performed by the Company so long as any Bonds of the
Medium Term Note Series __ remain outstanding. The Bonds of the Medium Term Note
Series __ which are redeemable on the payment of a Regular Redemption Price as
provided for in Section 1.02 of this Supplemental Indenture may be redeemed at
such Regular Redemption Price with moneys remaining in the replacement fund
provided for in said Section 4.04 of the Original Indenture.
SECTION 1.04. The requirements which are stated in the next to the last
paragraph of Section 1.13 and in Clause (9) of Paragraph A of Section 3.01 of
the Original Indenture to be applicable so long as any of the Bonds of the 1975
Series are outstanding shall remain applicable so long as any of the Bonds of
the Medium Term Note Series __ are outstanding.
SECTION 1.05. Notwithstanding the provisions of Section 2.06 or Section
2.10 of the Original Indenture, the Company shall not be required (i) to issue,
register, discharge from registration, exchange or transfer any Bond of the
Medium Term Note Series __ for a period of fifteen (15) days next preceding any
selection by the Trustee of Bonds of the Medium Term Note Series __ to be
redeemed or (ii) to register, discharge from registration, exchange or transfer
any Bond of the Medium Term Note Series __ so selected for redemption in its
entirety or (iii) to exchange or transfer any portion of a Bond of the Medium
Term Note Series __ which portion has been so selected for redemption.
SECTION 1.06. So long as any Bonds of the Medium Term Note Series __
remain outstanding, all references to the minimum provision for depreciation in
the form of certificate of available additions set forth in Section 3.03 of the
Original Indenture shall be included in any certificate of available additions
filed with the Trustee, but whenever Bonds of the Medium Term Note Series __
shall no longer be outstanding, all references to such minimum provisions for
depreciation may be omitted from any such certificate.
SECTION 1.07. I. Each holder of any Bond of the Medium Term Note Series
by acceptance of such Bond shall thereby consent that, at any time after the
requisite consents, if any, of the holders of Bonds of other Series __ shall
have been given as hereinafter provided, Subsections A and G of Section 1.10 of
the Original Indenture be amended so as to read as follows:
"A. The term 'bondable public utility property' shall mean and
comprise any tangible property now owned or hereafter acquired by the
Company and subjected to the lien of this Indenture, which is located
in the States of Oregon, Washington, California, Arizona, New Mexico,
Idaho, Montana, Wyoming, Utah and Nevada and is used or is useful to it
in the business of furnishing or distributing electricity for heat,
light or power or other use, or supplying hot water or steam for heat
or power or steam for other purposes, including, without limiting the
generality of the foregoing, all properties necessary or appropriate
for purchasing, generating, manufacturing, producing, transmitting,
supplying, distributing and/or disposing of electricity, hot water or
steam; provided, however, that the term 'bondable public utility
property' shall not be deemed to include any nonbondable property, as
defined in Subsection B of this Section 1.10, or any excepted
property."
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<PAGE> 16
"G. The term 'minimum provision for depreciation' for the
period from March 31, 1945 through December 31, 1966, as applied to
bondable public utility property, whether or not subject to a prior
lien, shall mean $35,023,487.50.
"The term 'minimum provision for depreciation' for any
calendar year subsequent to December 31, 1966, as applied to bondable
public utility property, shall mean the greater of (i) an amount equal
to 2% of depreciable bondable public utility property, as shown by the
books of the Company as of January 1 of such year, with respect to
which the Company was as of that date required, in accordance with
sound accounting practice, to make appropriations to a reserve or
reserves for depreciation or obsolescence, or (ii) the amount actually
appropriated by the Company on its books of account to a reserve or
reserves for depreciation or obsolescence in respect of depreciable
bondable public utility property for such calendar year, in either case
less an amount equal to the aggregate of (a) the amount of any property
additions which during such calendar year were included in an officers'
certificate filed with the Trustee as the basis for a sinking fund
credit pursuant to the provisions of a sinking fund for Bonds of any
series, and (b) 166 2/3% of the principal amount of Bonds of any series
which shall have been delivered to the Trustee as a credit, or which
the Company shall have elected to apply as a credit, against any
sinking fund payment due during such calendar year for Bonds of any
series, or which shall have been redeemed in anticipation of, or out of
moneys paid to the Trustee on account of, any sinking fund payment due
during such calendar year for Bonds of any series. Bonds delivered to
the Trustee as, or applied as, a credit against any sinking fund
payment and Bonds redeemed in anticipation of any sinking fund payment,
regardless of the time when they were actually delivered, applied or
redeemed, for purposes of the preceding sentence shall be deemed to
have been delivered, applied or redeemed, as the case may be, on the
sinking fund payment date when such sinking fund payment was due. Bonds
redeemed out of moneys paid to the Trustee on account of any sinking
fund payment shall, regardless of the date when they were redeemed, for
purposes of the second preceding sentence, be deemed to have been
redeemed on the later of (i) the date on which such moneys were paid to
the Trustee or (ii) the sinking fund payment date when such sinking
fund payment was due.
"The minimum provision for depreciation for any calendar year
subsequent to December 31, 1966, as applied to bondable public utility
property not subject to a prior lien, shall be determined as set forth
in the paragraph immediately preceding, except that all references
therein to 'depreciable bondable public utility property' shall be
deemed to be 'depreciable bondable public utility property not subject
to a prior lien'.
"The minimum provision for depreciation as applied to bondable
public utility property and the minimum provision for depreciation as
applied to bondable public utility property not subject to a prior lien
for any period commencing subsequent to December 31, 1966 which is of
twelve whole calendar months' duration but is other than a calendar
year or which is of less than twelve whole calendar months' duration
shall be determined by multiplying the number of whole calendar months
in such period by one-twelfth of the corresponding minimum provision
for depreciation for the most recent calendar year completed prior to
the end of such period, and fractions of a calendar month shall be
disregarded.
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<PAGE> 17
"The aggregate amount of the minimum provision for
depreciation as applied to bondable public utility property and the
aggregate amount of the minimum provision for depreciation as applied
to bondable public utility property not subject to a prior lien from
March 31, 1945 to any date shall be the sum of the corresponding
minimum provision for depreciation for each completed calendar year
between December 31, 1966 and such date, plus the corresponding minimum
provision for depreciation for the period, if any, from the end of the
most recent such completed calendar year to such date, in each case
determined as set forth above, plus $35,023,487.50.
"All Bonds credited against any sinking fund payment due
subsequent to December 31, 1966 for Bonds of any series and (except as
provided in Section 9.04 with respect to Bonds on which a notation of
partial payment shall be made) all Bonds redeemed in anticipation of or
out of moneys paid to the Trustee as a part of any sinking fund payment
due subsequent to December 31, 1966 for Bonds of any series, shall be
canceled and no such Bonds, nor any property additions which,
subsequent to December 31, 1966, shall have been included in an
officers' certificate filed with the Trustee as the basis for a sinking
fund credit pursuant to the provisions of a sinking fund for Bonds of
any series, shall be made the basis of the authentication and delivery
of Bonds or of any other further action or credit hereunder."
II. Each holder of any Bond of the Medium Term Note Series , by
acceptance of such Bond shall thereby consent that, at any time after the
requisite consents, if any, of the holders of Bonds of other series shall have
been given as hereinafter provided:
(1) Subsection A of Section 1.10 of the Original Indenture, as
the same may be amended as hereinabove in this Section 1.07 provided,
be further amended by replacing the word "and" between the words "Utah"
and "Nevada" with a comma and by adding after the word "Nevada" the
words "and Alaska";
(2) Subsection G of Section 1.10 of the Original Indenture, as
the same may be amended as hereinabove in this Section 1.07 provided,
be further amended by amending the second paragraph thereof to read as
follows:
"The term 'minimum provision for depreciation' for
any calendar year subsequent to December 31, 1966, as applied
to bondable public utility property, shall mean the greater of
(i) an amount equal to 2% of depreciable bondable public
utility property, as shown by the books of the Company as of
January 1 of such year, with respect to which the Company was
as of that date required, in accordance with sound accounting
practice, to make appropriations to a reserve or reserves for
depreciation or obsolescence, or (ii) the amount actually
appropriated by the Company on its books of account to a
reserve or reserves for depreciation or obsolescence in
respect of depreciable bondable public utility property for
such calendar year, in either case less an amount equal to the
aggregate of (a) the amount of any property additions which
during such calendar year were included in an officers'
certificate filed with the Trustee as the basis for a sinking
fund credit pursuant to the provisions of a sinking fund for
Bonds of any series and which as a
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<PAGE> 18
result of having been so included have been deemed, either
without time limit or only so long as any Bonds of such series
are outstanding, to have been 'included in an officers'
certificate filed with the Trustee as the basis for a sinking
fund credit' and to have been 'made the basis for action or
credit hereunder' as such term is defined in Subsection H of
Section 1.10 of the Original Indenture, and (b) 166 2/3% of
the principal amount of Bonds of any series which shall have
been delivered to the Trustee as a credit, or which the
Company shall have elected to apply as a credit, against any
sinking fund payment due during such calendar year for Bonds
of any series, or which shall have been redeemed in
anticipation of, or out of moneys paid to the Trustee on
account of, any sinking fund payment due during such calendar
year for Bonds of any series and which as a result of having
been so made the basis of a credit upon a sinking fund payment
and/or so redeemed by operation of a sinking fund shall have
been disqualified, either without time limit or only so long
as any Bonds of such series are outstanding, from being made
the basis of the authentication and delivery of Bonds or of
any other further action or credit under the Original
Indenture or any supplemental indenture. Bonds delivered to
the Trustee as, or applied as, a credit against any sinking
fund payment and Bonds redeemed in anticipation of any sinking
fund payment, regardless of the time when they were actually
delivered, applied or redeemed, for purposes of the preceding
sentence shall be deemed to have been delivered, applied or
redeemed, as the case may be, on the sinking fund payment date
when such sinking fund payment was due. Bonds redeemed out of
moneys paid to the Trustee on account of any sinking fund
payment shall, regardless of the date when they were redeemed,
for purposes of the second preceding sentence, be deemed to
have been redeemed on the later of (i) the date on which such
moneys were paid to the Trustee or (ii) the sinking fund
payment date when such sinking fund payment was due."
(3) Subsection G of Section 1.10 of the Original Indenture, as
the same may be amended as hereinabove in this Section 1.07 provided,
be further amended by deleting therefrom the last two paragraphs
thereof and inserting therein a new last paragraph to read as follows:
"The aggregate amount of the minimum provision for
depreciation as applied to bondable public utility property
and the aggregate amount of the minimum provision for
depreciation as applied to bondable public utility property
not subject to a prior lien from March 31, 1945 to any date
shall be the sum of the corresponding minimum provision for
depreciation for each completed calendar year between December
31, 1966 and such date, plus (1) the corresponding minimum
provision for depreciation for the period, if any, from the
end of the most recent such completed calendar year to such
date, in each case determined as set forth above, plus (2)
$35,023,487.50, plus (3) an amount equal to the aggregate of
(a) the amount of any property additions which, between
December 31, 1966 and such date, became property additions of
the character described in clause (a) of the second paragraph
of this Subsection G and which, thereafter, also between
December 31, 1966 and such date, became 'available additions'
as a result of the fact that all Bonds of such series ceased
to be outstanding, and (b) 166 2/3% of the principal amount of
Bonds of any
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<PAGE> 19
series which, between December 31, 1966 and such date, become
Bonds of the character described in clause (b) of the second
paragraph of this Subsection G and which, thereafter, also
between December 31, 1966 and such date, became 'available
Bond retirements' as a result of the fact that all Bonds of
such series ceased to be outstanding."
III. Each holder of any Bond of the Medium Term Note Series __ , by
acceptance of such Bond shall thereby consent that, at any time after the
requisite consents, if any, of the holders of Bonds of other series shall have
been given as hereinafter provided:
(1) the subparagraph numbered (3) of the third paragraph of
Section 1.03 of each of the Sixteenth and the Eighteenth through the
Twenty-first Supplemental Indentures and the third paragraph of Section
1.03 of the Twenty-second Supplemental Indenture be amended by
inserting before the words "any available additions thus shown as a
credit" the phrase "provided, however, that so long as any Bonds of the
___________ Series are outstanding" and inserting in the blank space of
such phrase the applicable designation of the series of Bonds created
by such supplemental indenture;
(2)(i) the fifth paragraph of Section 1.03 of the Ninth
through the Sixteenth Supplemental Indentures and the Eighteenth
through the Twenty-second Supplemental Indentures, which begins with
the words "All Bonds made the basis of a credit upon any sinking fund
payment for Bonds", (ii) Section 1.03 of the Seventeenth, Twenty third
and Twenty-fourth Supplemental Indentures, (iii) the last sentence of
the fourth paragraph of Section 1.03 of the First, Third, Fifth, Sixth
and Seventh Supplemental Indentures, which begins with the words "All
Bonds delivered to the Trustee as part of or to anticipate any sinking
fund payment" and (iv) the last sentence of the fourth paragraph of
Section 4.03 of the Original Indenture, which begins with the words
"All Bonds delivered to the Trustee as part of or to anticipate any
sinking fund payment", each be amended so as to read as follows:
"All Bonds made the basis of a credit upon any
sinking fund payment, and/or (except with respect to Bonds on
which a notation of partial payment shall be made as permitted
by any provision of the Original Indenture, of any
supplemental indenture or of any agreement entered into as
permitted by the Original Indenture or by any supplemental
indenture) redeemed (whether on any sinking fund payment date
or in anticipation of any such sinking fund payment) by
operation of the sinking fund, for Bonds of the 1975 Series,
or for Bonds of the 1977 Series, or for Bonds of the 1977
Second Series, or for Bonds of the 1984 Series, or for Bonds
of the 1986 Series, or for Bonds of the 4 7/8% Series due
1987, or for Bonds of the 1990 Series, or for Bonds of the
1991 Series, or for Bonds of the 4 5/8% Series due 1993, or
for Bonds of the 4 3/4% Series due 1993, or for Bonds of the
1994 Series, or for Bonds of the 1995 Series, or for Bonds of
the 1996 Series, or for Bonds of the 1997 Series, or for Bonds
of the 2000 Series, or for Bonds of the 2001 Series, or for
Bonds of the 2002 Series, or for Bonds of the 2003 Series, or
for Bonds of the 2003 Second Series if not theretofore
canceled shall be canceled and, except as otherwise provided
in the supplemental indenture creating such series of Bonds,
or in another supplemental indenture amending such
supplemental indenture, so long as any Bonds of such series
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<PAGE> 20
are outstanding shall not (but without limiting the use of the
principal amount thereof in calculating any minimum provision
for depreciation pursuant to the provisions of Subsection G of
Section 1.10 of the Original Indenture as the same may be
amended in accordance with the provisions of any supplemental
indenture) be made the basis of the authentication and
delivery of Bonds or of any further action or credit under the
Original Indenture or any supplemental indenture.
"To the extent that
(a) in any given year the principal amount of Bonds made
the basis of a credit upon any sinking fund payment,
and/or redeemed (whether on a sinking fund payment
date or in anticipation of a sinking fund payment) by
operation of the sinking fund, for Bonds of the 1975
Series, or for Bonds of the 1977 Series, or for Bonds
of the 1977 Second Series, or for Bonds of the 1984
Series, or for Bonds of the 1986 Series, or for Bonds
of the 4 7/8% Series due 1987, or for Bonds of the
1990 Series, or for Bonds of the 1991 Series, or for
Bonds of the 4 5/8% Series due 1993, or for Bonds of
the 4 3/4% Series due 1993, or for Bonds of the 1994
Series, or for Bonds of the 1995 Series or for Bonds
of the 1996 Series,
does not exceed
(b) an amount equal to 1% of the greatest aggregate
principal amount of Bonds of such Series theretofore
at any one time outstanding, after deducting from
said aggregate principal amount the sum of the
following amounts, in the event that such sum would
equal $500,000 or more, namely, (1) the aggregate
principal amount of Bonds of such Series theretofore
redeemed by the application of the proceeds of
property released from the lien of the Original
Indenture or taken or purchased pursuant to the
provisions of Article Six of the Original Indenture,
and (2) the aggregate principal amount of Bonds of
such Series theretofore redeemed and retired and made
the basis for the withdrawal of such proceeds
pursuant to Section 7.03 of the Original Indenture or
certified pursuant to Section 6.06 of the Original
Indenture in lieu of the deposit of cash upon the
release or taking of property; and
to the extent that
(c) in any given year the principal amount of Bonds made
the basis of a credit upon any sinking fund payment,
and/or redeemed (whether on a sinking fund payment
date or in anticipation of a sinking fund payment) by
operation of the sinking fund, for Bonds of the 1997
Series, or for Bonds of the 2000 Series, or for Bonds
of the 2001 Series, or for Bonds of the 2002 Series,
or for Bonds of the 2003 Series, or for Bonds of the
2003 Second Series,
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<PAGE> 21
does not exceed
(d) an amount equal to (1) 1% of the greatest aggregate
principal amount of Bonds of such Series theretofore
at any one time outstanding, after making the
deductions from said aggregate principal amount
referred to in clause (b) of this paragraph, minus
(2) 60% of the amount of available additions made the
basis of a credit against such sinking fund payment,
the principal amount of Bonds so made the basis of a credit upon a
sinking fund payment and/or so redeemed by operation of the sinking
fund for Bonds of such Series shall not (but without limiting the use
of the principal amount thereof in calculating any minimum provision
for depreciation pursuant to the provisions of Subsection G of Section
1.10 of the Original Indenture as the same may be amended in accordance
with the provisions of any supplemental indenture) be made the basis of
the authentication and delivery of Bonds or of any other further action
or credit under the Original Indenture or any supplemental indenture;
and
to the extent that
(e) in any given year the amount of available additions
made the basis of a credit against any sinking fund
payment for Bonds of the 1997 Series, or for Bonds of
the 2000 Series, or for Bonds of the 2001 Series, or
for Bonds of the 2002 Series, or for Bonds of the
2003 Series, or for Bonds of the 2003 Second Series,
does not exceed
(f) an amount equal to one and sixty-six and two-thirds
one hundredths per cent (1.66 2/3%) of the greatest
aggregate principal amount of Bonds of such Series
theretofore at any one time outstanding, after making
the deductions from said aggregate principal amount
referred to in clause (b) of this paragraph,
the amount of available additions so made the basis of a credit against
a sinking fund payment shall (but without limiting the use of the
amount thereof in calculating any minimum provision for depreciation
pursuant to the provisions of Subsection G of Section 1.10 of the
Original Indenture as the same may be amended in accordance with the
provisions of any supplemental indenture) be deemed to have been
'included in an officers' certificate filed with the Trustee as the
basis for a sinking fund credit' and to have been 'made the basis for
action or credit hereunder' as such term is defined in Subsection H of
Section 1.10 of the Original Indenture.
"From and after the time when all Bonds of any of the Series
referred to in (a) of the paragraph immediately preceding shall cease
to be outstanding, a principal amount of Bonds equal to the excess of
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<PAGE> 22
(i) the aggregate principal amount of Bonds made the
basis of a credit upon all sinking fund payments
and/or redeemed by operation of the sinking fund for
Bonds of such Series as set forth in said (a) in all
years, over
(ii) the aggregate amounts set forth in (b) of the
paragraph immediately preceding with reference to
Bonds of such Series for all years,
shall become 'available Bond retirements' as such term is defined in
Section 1.10.J. of the Original Indenture and may thereafter be
included in Item 4 of any 'certificate of available Bond retirements'
thereafter delivered to and/or filed with the Trustee pursuant to
Section 3.02 of the Original Indenture; and from and after the time
when all Bonds of any of the Series referred to in (c) of the paragraph
immediately preceding shall cease to be outstanding, a principal amount
of Bonds equal to the excess of
(iii) the aggregate principal amount of Bonds made the
basis of a credit upon all sinking fund payments
and/or redeemed by operation of the sinking fund for
Bonds of such Series as set forth in said (c) in all
years, over
(iv) the aggregate amounts set forth in (d) of the
paragraph immediately preceding with reference to
Bonds of such Series for all years,
shall become 'available Bond retirements' as such term is defined in
Section 1.10.J. of the Original Indenture and may thereafter be
included in Item 4 of any 'certificate of available Bond retirements'
thereafter delivered to and/or filed with the Trustee pursuant to
Section 3.02 of the Original Indenture, and an amount of available
additions equal to the excess of
(v) the amount of available additions made the basis of a
credit against all sinking fund payments for Bonds of
such Series as set forth in (e) of the paragraph
immediately preceding in all years, over
(vi) the aggregate amounts set forth in (f) of the
paragraph immediately preceding with reference to
Bonds of such Series for all years,
shall become 'available additions' as such term is defined in Section
1.10.I. of the Original Indenture and may thereafter be included in
Item 5 of any 'certificate of available additions' thereafter filed
with the Trustee pursuant to Section 3.01 of the Original Indenture";
(3) subsection H of Section 1.10 of the Original Indenture be
amended by inserting before the semicolon preceding clause (ii)
thereof, and as a part of clause (1) thereof, the words "if, to the
extent that, and so long as, the provisions of this Indenture or any
supplemental indentures creating or providing for any such fund or any
supplemental indentures amending the provisions creating or providing
for any such fund shall preclude the use of property additions so
included in an officers' certificate as the basis for further
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<PAGE> 23
action or credit hereunder"; Subsection I of Section 1.10 of the
Original Indenture be amended by changing the reference therein from
"Item 5" to "Item 7"; and Subsection J of Section 1.10 of the Original
Indenture be amended by changing the reference therein from "Item 4" to
"Item 5";
(4) paragraph (3) of Section 3.01(A) of the Original Indenture
be amended by changing the period at the end thereof to a comma and
adding the following words thereto: "except to the extent otherwise
provided in this Indenture or in any supplemental indenture";
(5) the Certificate of Available Additions set forth in
Section 3.03.A. of the Original Indenture be amended by
(i) adding new paragraphs (5) and (6) thereto
immediately preceding existing paragraph (5)
thereof, as follows:
"(5) The aggregate amount, if any, of
available additions included in Item
4 above which were so included
because the same were made the basis
of a credit upon any sinking fund
payment for Bonds of any series and
which have subsequently again become
'available additions' as a result of
the fact that all Bonds of such
series ceased to be outstanding, is
$_______________
"(6) The aggregate amount of available
additions heretofore made the basis
for action or credit under said
Indenture of Mortgage and which have
not subsequently again become
'available additions' as set forth
in Item 5 above, namely Item 4 above
minus Item 5 above is $____________
(ii) renumbering existing paragraph (5) as
paragraph (7) and changing the references in
renumbered paragraph (7) from "Item 3 above
minus Item 4 above" to "Item 3 above minus
Item 6 above",
(iii) renumbering existing paragraphs (6) and (7)
as paragraphs (8) and (9) and changing the
references in renumbered paragraph (9) from
"Item 5 above minus Item 6 above" to "Item 7
above minus Item 8 above", and
(iv) deleting "Item 7 above" in the second line
of the paragraph immediately succeeding
renumbered paragraph (9) and substituting
"Item 9 above" therefor; and
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<PAGE> 24
(6) the Certificate of Available Bond Retirements set forth in
Section 3.03.B. of the Original Indenture be amended by
(i) adding a new paragraph (4) thereto
immediately preceding the existing paragraph
(4) thereof, as follows:
"(4) The aggregate amount, if any, of
Bonds previously made the basis of a
credit upon any sinking fund payment
for Bonds of any series, and/or
redeemed (whether on a sinking fund
payment date or in anticipation of
sinking fund payment) by operation
of the sinking fund for Bonds of
such series, which have subsequently
become 'available Bond retirements'
as a result of the fact that all
Bonds of such series ceased to be
outstanding is $_________"
(ii) renumbering the existing paragraph (4) as
paragraph (5) and revising the same to read
as follows: "The amount of presently
available Bond retirements, namely the sum
of Items (1), (2), (3) and (4) above, is
$___________"
(iii) renumbering the existing paragraphs (5) and
(6) as (6) and (7), respectively, and
changing the reference in renumbered
paragraph (7) from "Item 4 minus Item 5" to
"Item 5 minus Item 6".
IV. The amendments of Subsections A, G, H, I and/or J of Section 1.10
of the Original Indenture, of Sections 3.01, 3.03 and/or 4.03 of the Original
Indenture and/or of Section 1.03 of the First, Third, Fifth, Sixth, Seventh and
Ninth through Twenty-fourth Supplemental Indentures set forth above shall,
subject to the Company and the Trustee, in accordance with the provisions of
Section 17.02 of the Original Indenture, entering into an indenture or
indentures supplemental to the Original Indenture for the purpose of so amending
said Subsections A, G, H, I and/or J, Sections 3.01, 3.03 and/or 4.03 and/or
Section 1.03, become effective at such time as the holders of not less than 75%
in principal amount of Bonds then outstanding or their attorneys-in-fact duly
authorized, including the holders of not less than 60% in principal amount of
the Bonds then outstanding of each series the rights of the holders of which are
affected by such amendment, shall have consented to such amendment. No further
vote or consent of the holders of Bonds of the Medium Term Note Series ____
shall be required to permit such amendments to become effective and in
determining whether the holders of not less than 75% in principal amount of
Bonds outstanding at the time such amendments become effective have consented
thereto, the holders of all Bonds of the Medium Term Note Series ___ then
outstanding shall be deemed to have so consented.
SECTION 1.08. This Article shall be of force and effect only so long as
any Bonds of the Medium Term Note Series__ are outstanding.
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<PAGE> 25
ARTICLE TWO.
TRUSTEE.
SECTION 2.01. The Trustee hereby accepts the trust hereby created. The
Trustee undertakes, prior to the occurrence of an event of default and after the
curing of all events of default which may have occurred, to perform such duties
and only such duties as are specifically set forth in the Original Indenture as
heretofore and hereby supplemented and modified, on and subject to the terms and
conditions set forth in the Original Indenture as so supplemented and modified,
and in case of the occurrence of an event of default (which has not been cured)
to exercise such of the rights and powers vested in it by the Original Indenture
as so supplemented and modified, 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.
The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Supplemental Indenture or the
Bonds issued hereunder or the due execution thereof by the Company. The Trustee
shall be under no obligation or duty with respect to the filing, registration,
or recording of this Supplemental Indenture or the re-filing, re-registration,
or re-recording thereof. The recitals of fact contained herein or in the Bonds
(other than the Trustee's authentication certificate) shall be taken as the
statements solely of the Company, and the Trustee assumes no responsibility for
the correctness thereof.
ARTICLE THREE.
MISCELLANEOUS PROVISIONS.
SECTION 3.01. Although this Supplemental Indenture, for convenience and
for the purpose of reference, is dated_____, the actual date of execution by the
Company and by the Trustee is as indicated by their respective acknowledgments
hereto annexed.
SECTION 3.02. This Supplemental Indenture is executed and shall be
construed as an indenture supplemental to the Original Indenture as heretofore
supplemented and modified, and as supplemented and modified hereby, the Original
Indenture as heretofore supplemented and modified is in all respects ratified
and confirmed, and the Original Indenture as heretofore and hereby supplemented
and modified shall be read, taken and construed as one and the same instrument.
All terms used in this Supplemental Indenture shall be taken to have the same
meaning as in the Original Indenture except in cases where the context clearly
indicates otherwise.
SECTION 3.03. In case any one or more of the provisions contained in
this Supplemental Indenture or in the Bonds or coupons 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
Supplemental Indenture, but this Supplemental Indenture shall be construed as if
such invalid or illegal or unenforceable provision had never been contained
herein.
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<PAGE> 26
SECTION 3.04. This Supplemental Indenture may be executed in any number
of counterparts, and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts, or as many of them as the Company
and the Trustee shall preserve undestroyed, shall together constitute but one
and the same instrument.
IN WITNESS WHEREOF, Portland General Electric Company has caused this
Supplemental Indenture to be signed in its corporate name by its President or
one of its Senior Vice Presidents or one of its Vice Presidents and its
corporate seal to be hereunto affixed and attested by its Secretary or one of
its Assistant Secretaries, and in token of its acceptance of the trusts created
hereunder, HSBC Bank USA (formerly Marine Midland Bank) (formerly The Marine
Midland Trust Company of New York) has caused this Supplemental Indenture to be
signed in its corporate name by one of its Vice Presidents or one of its
Assistant Vice Presidents or one of its Corporate Trust Officers and its
corporate seal to be hereunto affixed and attested bone of its Corporate Trust
Officers, all as of the day and year first above written.
PORTLAND GENERAL ELECTRIC COMPANY
By:
-------------------------------------
Title:
----------------------------------
Attest:
- ----------------------------
Title:
----------------------
(Seal)
HSBC BANK USA
By:
-------------------------------------
Title:
----------------------------------
Attest:
- ----------------------------
Title:
----------------------
(Seal)
-26-
<PAGE> 27
State of Oregon
County of Multnomah} ss.:
The foregoing instrument was acknowledged before me on this __ day of
__________ by ___________, a __________ of PORTLAND GENERAL ELECTRIC COMPANY, an
Oregon corporation, on behalf of said corporation.
----------------------------------
Notary Public for Oregon
My Commission Expires
-------------
[NOTARIAL SEAL]
-27-
<PAGE> 28
State of New York
County of ___________} ss.:
The foregoing instrument was acknowledged before me on this __ day of
___________ by ___________, a(an)___________ of HSBC BANK USA, a New York
banking corporation and trust company, on behalf of said corporation.
----------------------------------
Notary Public, State of New York
No.
---------------
Commission Expires
------------
[NOTARIAL SEAL]
-28-
<PAGE> 29
State of Oregon
County of Multnomah} ss.:
_________________ and _______________, a ______________ and __________,
respectively, of PORTLAND GENERAL ELECTRIC COMPANY, an Oregon corporation, the
mortgagor in the foregoing mortgage named, being first duly sworn, on oath
depose and say that they are the officers above named of said corporation and
that this affidavit is made for and on its behalf by authority of its Board of
Directors and that the aforesaid mortgage is made by said mortgagor in good
faith, and without any design to hinder, delay or defraud creditors.
Subscribed and sworn to before me this __ day of _____.
----------------------------------
Notary Public for Oregon
My Commission Expires
------------
[NOTARIAL SEAL]
-29-
<PAGE> 30
1. Bracketed material is to be inserted only if Bonds are to be issued as a
global security held by a depository.
2. Bracketed material is to be inserted only if Bonds are to be issued as a
global security held by a depository.
3. Bracketed material may be added, deleted, or changed to reflect whether the
Bonds of the series to which this Supplemental Indenture relates are to bear
interest at a rate which may change during the life of such Bonds or at a rate
which is to be fixed during the life of such Bonds.
4. If any bond to which this Supplemental Indenture relates includes a sinking
fund, the provision thereof will be set forth in such bond.
-30-
<PAGE> 1
Exhibit 4(e)
===============================================================================
PORTLAND GENERAL ELECTRIC COMPANY
TO
HSBC BANK USA
TRUSTEE
-----------------------
INDENTURE
Dated as of April 30, 1999
-----------------------
===============================================================================
<PAGE> 2
PORTLAND GENERAL ELECTRIC COMPANY
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO
SECTIONS 310 THROUGH 318, INCLUSIVE OF THE
TRUST INDENTURE ACT OF 1939:
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- --------------- ---------
<S> <C> <C> <C>
Section 310(a)(1) ............................................................................... 609
(a)(2) ............................................................................... 609
(a)(3) ............................................................................... Not Applicable
(a)(4) ............................................................................... Not Applicable
(b) ............................................................................... 608
............................................................................... 610
Section 311(a) ............................................................................... 613
(b) ............................................................................... 613
Section 312(a) ............................................................................... 701
............................................................................... 702(a)
(b) ............................................................................... 702(b)
(c) ............................................................................... 702(c)
Section 313(a) ............................................................................... 703(a)
(b) ............................................................................... 703(a)
(c) ............................................................................... 703(a)
(d) ............................................................................... 703(b)
Section 314(a) ............................................................................... 704
(a)(4) ............................................................................... 101
............................................................................... 1004
(b) ............................................................................... Not Applicable
(c)(1) ............................................................................... 102
(c)(2) ............................................................................... 102
(c)(3) ............................................................................... Not Applicable
(d) ............................................................................... Not Applicable
(e) ............................................................................... 102
Section 315(a) ............................................................................... 601
(b) ............................................................................... 602
(c) ............................................................................... 601
(d) ............................................................................... 601
(e) ............................................................................... 514
Section 316(a) ............................................................................... 101
(a)(1)(A) ............................................................................... 502
............................................................................... 512
(a)(1)(B) ............................................................................... 513
(a)(2) ............................................................................... Not Applicable
(b) ............................................................................... 508
(c) ............................................................................... 104(c)
Section 317(a)(1) ............................................................................... 503
(a)(2) ............................................................................... 504
(b) ............................................................................... 1003
Section 318(a) ............................................................................... 107
</TABLE>
- -------------------
Note: This reconciliation and tie sheet shall not, for any purpose, be deemed
to be a part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
<TABLE>
<S> <C> <C>
SECTION 101. Definitions................................................................................1
Act.............................................................................................2
Affiliate.......................................................................................2
Authenticating Agent............................................................................2
Board of Directors..............................................................................2
Board Resolution................................................................................2
Business Day....................................................................................2
Commission......................................................................................2
Company.........................................................................................2
Company Request or Company Order................................................................2
Corporate Trust Office..........................................................................2
corporation.....................................................................................3
Defaulted Interest..............................................................................3
Depository......................................................................................3
Eligible Obligations............................................................................3
Event of Default................................................................................3
Federal Bankruptcy Act..........................................................................3
Global Security.................................................................................3
Holder..........................................................................................3
indebtedness....................................................................................3
Indenture.......................................................................................4
interest .......................................................................................4
Interest Payment Date...........................................................................4
Lien............................................................................................4
Maturity........................................................................................4
Officers' Certificate...........................................................................4
Opinion of Counsel..............................................................................4
Original Issue Discount Security................................................................4
Outstanding.....................................................................................5
Paying Agent....................................................................................5
Person..........................................................................................6
Place of Payment................................................................................6
Predecessor Security............................................................................6
Redemption Date.................................................................................6
Redemption Price................................................................................6
Regular Record Date.............................................................................6
Responsible Officer.............................................................................6
Securities......................................................................................6
Security Register and Security Registrar........................................................6
</TABLE>
-i-
<PAGE> 4
<TABLE>
<S> <C> <C>
Special Record Date.............................................................................6
Stated Maturity.................................................................................6
Subsidiary......................................................................................7
Tax-Free Debt...................................................................................7
Trustee.........................................................................................7
Trust Indenture Act.............................................................................7
U.S. Government Obligations.....................................................................7
Vice President..................................................................................7
SECTION 102. Compliance Certificates and Opinions.......................................................8
SECTION 103. Form of Documents Delivered to Trustee.....................................................8
SECTION 104. Acts of Holders; Record Dates..............................................................9
SECTION 105. Notices, Etc., to Trustee and Company.....................................................10
SECTION 106. Notice to Holders; Waiver.................................................................10
SECTION 107. Conflict with Trust Indenture Act.........................................................10
SECTION 108. Effect of Headings and Table of Contents..................................................11
SECTION 109. Successors and Assigns....................................................................11
SECTION 110. Separability Clause.......................................................................11
SECTION 111. Benefits of Indenture.....................................................................11
SECTION 112. Governing Law.............................................................................11
SECTION 113. Interest Limitation.......................................................................11
SECTION 114. Legal Holidays............................................................................12
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally...........................................................................12
SECTION 202. Form of Face of Security..................................................................13
SECTION 203. Form of Reverse of Security...............................................................15
SECTION 204. Form of Legend for Global Securities......................................................18
SECTION 205. Form of Legend for Global Securities......................................................18
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series......................................................19
SECTION 302. Denominations.............................................................................21
SECTION 303. Execution, Authentication, Delivery and Dating............................................21
SECTION 304. Temporary Securities......................................................................22
SECTION 305. Registration, Registration of Transfer and Exchange.......................................23
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities..........................................24
SECTION 307. Payment of Interest; Interest Rights Preserved............................................25
SECTION 308. Persons Deemed Owners.....................................................................26
SECTION 309. Cancellation..............................................................................26
SECTION 310. Computation of Interest...................................................................27
</TABLE>
-ii-
<PAGE> 5
ARTICLE FOUR
SATISFACTION AND DISCHARGE
<TABLE>
<S> <C> <C>
SECTION 401. Satisfaction and Discharge of Indenture...................................................27
SECTION 402. Application of Trust Money................................................................28
SECTION 403. Reinstatement.............................................................................28
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.........................................................................28
SECTION 502. Acceleration of Maturity; Rescission and Annulment........................................30
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee...........................31
SECTION 504. Trustee May File Proofs of Claim..........................................................32
SECTION 505. Trustee May Enforce Claims Without Possession of Securities...............................32
SECTION 506. Application of Money Collected............................................................32
SECTION 507. Limitation on Suits.......................................................................33
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest..............................................................................34
SECTION 509. Restoration of Rights and Remedies........................................................34
SECTION 510. Rights and Remedies Cumulative............................................................34
SECTION 511. Delay or Omission Not Waiver..............................................................34
SECTION 512. Control by Holders........................................................................34
SECTION 513. Waiver of Past Defaults...................................................................35
SECTION 514. Undertaking for Costs.....................................................................35
SECTION 515. Waiver of Stay or Extension Laws..........................................................36
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.......................................................36
SECTION 602. Notice of Defaults........................................................................36
SECTION 603. Certain Rights of Trustee.................................................................36
SECTION 604. Not Responsible for Recitals or Issuance of Securities....................................38
SECTION 605. May Hold Securities.......................................................................38
SECTION 606. Money Held in Trust.......................................................................38
SECTION 607. Compensation and Reimbursement ...........................................................38
SECTION 608. Disqualification; Conflicting Interests...................................................39
SECTION 609. Corporate Trustee Required; Eligibility...................................................39
SECTION 610. Resignation and Removal; Appointment of Successor.........................................40
SECTION 611. Acceptance of Appointment by Successor....................................................41
SECTION 612. Merger, Conversion, Consolidation or Succession to Business...............................42
</TABLE>
-iii-
<PAGE> 6
<TABLE>
<S> <C> <C>
SECTION 613. Preferential Collection of Claims Against Company.........................................42
SECTION 614. Appointment of Authenticating Agent.......................................................43
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.................................44
SECTION 702. Preservation of Information; Communications to Holders....................................45
SECTION 703. Reports by Trustee........................................................................45
SECTION 704. Reports by Company........................................................................45
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALE
SECTION 801. Consolidation, Merger or Sale Permitted Under Certain
Conditions................................................................................45
SECTION 802. Substitution of Successor Person for the Company..........................................46
SECTION 803. Opinion of Counsel and Officers' Certificate to be given to Trustee.......................47
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders........................................47
SECTION 902. Supplemental Indentures with Consent of Holders...........................................48
SECTION 903. Execution of Supplemental Indentures......................................................49
SECTION 904. Effect of Supplemental Indentures.........................................................49
SECTION 905. Conformity with Trust Indenture Act.......................................................50
SECTION 906. Reference in Securities to Supplemental Indentures........................................50
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest...............................................50
SECTION 1002. Maintenance of Office or Agency..........................................................50
SECTION 1003. Money for Securities Payments to Be Held in Trust........................................51
SECTION 1004. Corporate Existence......................................................................52
SECTION 1005. Maintenance of Properties................................................................52
SECTION 1006. Payment of Taxes and Other Claims........................................................52
SECTION 1007. Statement by Officers as to Default......................................................52
SECTION 1008. Waiver of Certain Covenants..............................................................52
SECTION 1009. Negative Pledge and Exceptions Thereto...................................................53
</TABLE>
-iv-
<PAGE> 7
<TABLE>
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
<S> <C> <C>
SECTION 1101. Applicability of Article.................................................................55
SECTION 1102. Election to Redeem; Notice to Trustee....................................................55
SECTION 1103. Selection by Trustee of Securities to Be Redeemed........................................55
SECTION 1104. Notice of Redemption.....................................................................56
SECTION 1105. Deposit of Redemption Price..............................................................56
SECTION 1106. Securities Payable on Redemption Date....................................................56
SECTION 1107. Securities Redeemed in Part..............................................................57
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.................................................................57
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities....................................57
SECTION 1203. Redemption of Securities for Sinking Fund................................................58
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 1301. Liability Solely Corporate...............................................................58
</TABLE>
-v-
<PAGE> 8
INDENTURE, dated as of April 30, 1999, between PORTLAND GENERAL
ELECTRIC COMPANY, a corporation duly organized and existing under the laws of
the State of Oregon (herein called the "Company"), having its principal office
at 121 S.W. Salmon Street, Portland, Oregon 97204, and HSBC Bank USA, a banking
corporation duly organized and existing under the laws of the State of New
York, as Trustee (herein called the "Trustee"), the office of the Trustee at
which at the date hereof its corporate trust business is principally
administered being 140 Broadway, New York, New York 10005-1180.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its senior unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as provided in this
Indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of a series thereof,
as follows.
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of
such computation; and
-1-
<PAGE> 9
(4) the words "herein", "hereof' and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
"Act," when used with respect to any Holder, has the meaning specified
in Section 104.
"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.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"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, and delivered to the Trustee.
"Business Day," means any Monday, Tuesday, Wednesday, Thursday or
Friday which is not a day on which banking institutions in New York, New York
or the Place of Payment for the Securities are authorized or obligated by law
or executive order to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934,
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.
"Company" means the corporation named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee in
New York, New York at which at any particular time its corporate trust business
with respect to this Indenture shall be administered, which office at the date
hereof is that indicated in the introductory paragraph of this Indenture.
-2-
<PAGE> 10
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Depository" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depository for such series by the Company
pursuant to Section 301.
"Eligible Obligations" means interest-bearing obligations as a result
of the deposit of which the Securities are rated in the highest generic
long-term debt rating category assigned to legally defeased debt by one or more
nationally recognized rating agencies.
"Event of Default" has the meaning specified in Section 501.
"Federal Bankruptcy Act" means the Bankruptcy Code of 1978, as
amended, or Title 11 of the United States Code.
"Global Security" means a Security bearing the legend specified in
Section 204 evidencing all or part of a series of Securities, issued to the
Depository for such series or its nominee, and registered in the name of such
Depository or nominee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"indebtedness," as applied to the Company or any Subsidiary, shall
mean bonds, debentures, notes and other instruments representing obligations
created or assumed by any such Person for the repayment of money borrowed
(other than unamortized debt discount or premium). All indebtedness secured by
a Lien upon property owned by the Company or any Subsidiary and upon which
indebtedness any such Person customarily pays interest, although any such
Person has not assumed or become liable for the payment of such indebtedness,
shall for all purposes hereof be deemed to be indebtedness of any such Person.
All indebtedness for money borrowed incurred by other Persons which is directly
guaranteed as to payment of principal by the Company or any Subsidiary shall
for all purposes hereof be deemed to be indebtedness of any such Person, but no
other contingent obligation of any such Person in respect of indebtedness
incurred by other Persons shall for any purpose be deemed indebtedness of such
Person. Indebtedness of the Company or any Subsidiary shall not include (i) any
amount representing capitalized lease obligations; (ii) indirect guarantees or
other contingent obligations in connection with the indebtedness of others,
including agreements, contingent or otherwise, with such other Persons or with
third Persons with respect to, or to permit or ensure the payment of,
obligations of such other Persons, including, without limitation, agreements to
purchase or repurchase obligations of such other Persons, agreements to advance
or supply funds to or to invest in such other Persons, or agreements to pay for
property, products, or services of such other Persons (whether or not
conferred, delivered or rendered), and any demand charge, throughput,
take-or-pay, keep-well, make-whole, cash deficiency, maintenance of working
capital or earnings or similar agreements; and (iii) any guarantees with
respect to lease or other similar periodic payments to be made by other
Persons.
-3-
<PAGE> 11
"Indenture" means this instrument as originally executed as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301; provided,
however, that if at any time more than one Person is acting as Trustee under
this instrument, "Indenture" shall mean with respect to any one or more series
of Securities for which such Person is Trustee, this instrument as originally
executed or as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of particular series of
Securities for which such Person is Trustee established as contemplated by
Section 301, exclusive, however, of any provisions or terms which relate solely
to other series of Securities for which such Person is not Trustee, regardless
of when such terms or provisions were adopted, and exclusive of any provisions
or terms adopted by means of one or more indentures supplemental hereto
executed and delivered after such Person had become such Trustee but to which
such Person, as such Trustee, was not a party.
"interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date," when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Lien" means any mortgage, pledge, lien, security interest or similar
charge or encumbrance.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company, and who shall be acceptable to the
Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
-4-
<PAGE> 12
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of
such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory
to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have
been presented to the Trustee or Authenticating Agent proof
satisfactory to it and the Company that such Securities are
held by a bona fide purchaser in whose hands such Securities
are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 502, (ii) the principal amount of a Security
denominated in one or more foreign currencies or currency units shall be the
U.S. dollar equivalent, determined in the manner provided as contemplated by
Section 301 on the date of original issuance of such Security, of the principal
amount (or, in the case of an Original Issue Discount Security, the U.S. dollar
equivalent on the date of original issuance of such Security of the amount
determined as provided in (i) above) of such security, and (iii) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver or upon any such determination as to the presence of
a quorum, only Securities which a Responsible Officer of the Trustee knows to
be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect
to such Securities and that the pledgee is not the Company or ally other
obligor upon the Securities or any Affiliate of the Company or of such other
obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any one or more series of Securities
on behalf of the Company.
-5-
<PAGE> 13
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer," when used with respect to the Trustee, means
any officer of the Trustee with direct responsibility for the administration of
this Indenture, and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture; provided, however, that if at any time there is
more than one Person acting as Trustee under this instrument, "Securities" with
respect to the Indenture as to which such Person is Trustee shall have the
meaning stated in the first recital of this instrument and shall more
particularly mean Securities authenticated and delivered under this instrument,
exclusive, however, of Securities of any series as to which such Person is not
Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security, or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
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<PAGE> 14
"Subsidiary" means a Person other than an individual more than 50% of
the outstanding voting power of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For the purposes of this definition, "voting power" means
power for the election of directors or other persons managing the affairs of
such Person, whether at all times or only so long as no senior class of stock
has such voting power by reason of any contingency.
"Tax-Free Debt" means indebtedness of the Company or a Subsidiary to a
state, territory or possession of the United States or any political
subdivision thereof issued in a transaction in which such state, territory,
possession or political subdivision issued obligations the interest on which is
excludable from gross income pursuant to the provisions of Section 103 of the
Internal Revenue Code of 1986, as amended, or any federal statute hereafter
enacted which relates to such matters, as in effect at the time of issuance of
such obligations, and debt to a bank issuing a letter of credit with respect to
the principal of or interest on such obligations.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"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.
"U.S. Government Obligations" means securities which are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in either case
are not callable or redeemable at the option of the issuer thereof, and shall
also include a depository receipt issued by a bank or trust company as
custodian with respect to any such U.S. Government Obligations or a specific
payment of interest on or principal of any such U.S. Government Obligation held
by such custodian for the account of the holder of a 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 U.S.
Government Obligation or the specific payment of interest on or principal of
the U.S. Government Obligations evidenced by such depository receipt.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
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SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other set forth in this
Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(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 each such individual,
such individual has made such examination or investigation as is
necessary to enable such individual 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, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
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<PAGE> 16
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given
or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in
person or by agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where
it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of the Holders 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 Indenture and (subject to Section
601) conclusive in favor of the Trustee and the Company, if made in
the manner provided in this Section.
(b) 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 the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the
Trust Indenture Act, fix any day as the record date for the purpose of
determining the Holders of Securities of any series entitled to give
or take any request, demand, authorization, direction, notice,
consent, waiver or other action, or to vote on any action, authorized
or permitted to be given or taken by Holders of Securities of such
series. If not set by the Company prior to the first solicitation of a
Holder of Securities of such series made by any Person in respect of
any such action, or, in the case of any such vote, prior to such vote,
the record date for any such action or vote shall be the 30th day (or,
if later, the date of the most recent list of Holders required to be
provided pursuant to Section 701) prior to such first solicitation or
vote, as the case may be. With regard to any record date for action to
be taken by the Holders of one or more series of Securities, only the
Holders of Securities of such series on such date (or their duly
designated proxies) shall be entitled to give or take, or vote on, the
relevant action.
(d) The ownership of Securities shall be proved by the
Security Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in
exchange
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<PAGE> 17
therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Department, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this Indenture or
at any other address previously furnished in writing to the Trustee by
the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at such Holder's address as it appears in the Security Register,
not later than the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the provision of the Trust Indenture Act
shall control. If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act that may be so modified or excluded, the
latter provision shall be deemed to apply to this Indenture as so modified or
to be excluded, as the case may be.
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<PAGE> 18
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities 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 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 112. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 113. Interest Limitation.
It is the intention of the Company to conform strictly to all
applicable usury laws and any subsequent revisions, repeals or judicial
interpretations thereof. Accordingly, if the transactions contemplated hereby
would be usurious under any applicable law then, in that event, notwithstanding
anything to the contrary in the Securities or this Indenture, it is agreed as
follows: (i) the aggregate of all consideration which constitutes interest
under applicable law with respect to a Security shall under no circumstances
exceed the maximum amount allowed by applicable law, and any excess shall be
credited to the principal amount of such Security (or, if the principal amount
of such Security shall have been paid in full, refunded to the Company), to the
extent permitted by applicable law, and (ii) in the event that the maturity of
any Security is accelerated or in the event of any redemption of such Security,
then such consideration that constitutes interest under applicable law may
never include more than the maximum amount allowed by applicable law, and any
excess shall be credited to the principal amount of such Security (or, if the
principal amount of such Security shall be paid in full, refunded to the
Company), to the extent permitted by applicable law. All calculations made to
compute the rate of interest with respect to a Security for the purpose of
determining whether such rate exceeds the maximum amount allowed by applicable
law shall be made, to the extent permitted by such applicable law, by
allocating and spreading during the period of the full stated term of such
Security all interest any time contracted for, taken, reserved, charged
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<PAGE> 19
or received by such Holder or by the Trustee on behalf of any such Holder in
connection therewith so that the amount or rate of interest charged for any and
all periods of time during the term of the Security does not exceed the maximum
amount or rate of interest allowed to be charged by law during the relevant
period of time. Notwithstanding any of the foregoing, if at any time applicable
laws shall be changed so as to permit a higher rate or amount of interest to be
charged than that permitted prior to such change, then unless prohibited by
law, references in this Indenture or any Security to "applicable law" when used
in the context of determining the maximum interest or rate of interest that can
be charged shall be deemed to refer to such applicable law as so amended to
allow the greater amount or rate of interest.
The right to accelerate maturity of any Security does not include the
right to accelerate any interest which has not otherwise accrued to the date of
such acceleration, provided, however, that the foregoing shall not prohibit the
continuing accrual after acceleration of interest in accordance with the terms
of the Indenture and such Security.
SECTION 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision of the Securities of any series which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity, provided
that payment on such succeeding Business Day shall not include interest accrued
for the period from and after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any applicable
law or any applicable rule or regulation promulgated thereunder, with the rules
of any securities exchange or as may, consistently herewith, be determined by
the officers executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is 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 Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities. Any form of Security approved by or pursuant to a Board Resolution
shall be acceptable as to form
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<PAGE> 20
to the Trustee, such acceptance to be evidenced by the Trustee's authentication
of Securities in that form or a certificate signed by a Responsible Officer of
the Trustee and delivered to the Company.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 202. Form of Face of Security.
[If the Security is an Original Issue Discount Security, insert ______
FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE UNITED STATES INTERNAL
REVENUE CODE OF 1986, AS AMENDED, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS
SECURITY IS _____________% OF ITS PRINCIPAL AMOUNT, THE ISSUE DATE IS
____________________________________, 19___[,] [AND] THE YIELD TO MATURITY IS
________________%[, THE METHOD USED TO DETERMINE THE YIELD IS
______________________ AND THE AMOUNT OF ORIGINAL ISSUE DISCOUNT APPLICABLE TO
THE SHORT ACCRUAL PERIOD OF ______________________________, 19____ TO
________________________________, 19____ IS ______________% OF THE PRINCIPAL
AMOUNT OF THIS SECURITY].
PORTLAND GENERAL ELECTRIC COMPANY
[INSERT TITLE OF SECURITIES]
No._______________ $_____________
Portland General Electric Company, a corporation duly organized and
existing under the laws of the State of Oregon (herein called the "Company",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to
___________________________, or registered assigns, the principal sum of
_____________ Dollars on _____________________________________________________
[If the Security is to bear interest prior to Maturity, insert - , and to pay
interest thereon from ____________ or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on
____________________ and _____________________ in each year, commencing
___________________, at the rate of ______________% per annum, until the
principal hereof is paid or made available for payment [if applicable, insert -
, and (to the extent that the payment of such interest shall be legally
enforceable) at the rate of _____________% per annum on any overdue principal
and premium and on any overdue installment of interest]. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in the Indenture described on the reverse hereof, be paid to
the Person in whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date for such
interest, which shall be ___________________________ or
____________________________ (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities of this series not less than
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<PAGE> 21
10 days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said
Indenture].
[If the Security is not to bear interest prior to Maturity, insert -
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of _________________% per annum (to the extent that the
payment of such interest shall be legally enforceable), which shall accrue from
the date of such default in payment to the date payment of such principal has
been made or duly provided for. Interest on any overdue principal shall be
payable on demand. Any such interest on any overdue principal that is not so
paid on demand shall bear interest at the rate of ______________________% per
annum (to the extent that the payment of such interest shall be legally
enforceable), which shall accrue from the date of such demand for payment to
the date payment of such interest has been made or duly provided for, and such
interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert - any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in the Borough of Manhattan,
the City of New York, State of New York, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts [if applicable, insert - ; provided, however, that at
the option of the Company payment of interest may be made by check mailed to
the address of the Person entitled thereto as such address shall appear in the
Security Register].
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
PORTLAND GENERAL ELECTRIC COMPANY
By
Attest: --------------------------------------
Title:
- --------------------------
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<PAGE> 22
SECTION 203. Form of Reverse of Security.
This security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of_______________ , 1999 (herein
called the "Indenture"), between the Company and HSBC Bank USA, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [, limited in aggregate principal amount to
$_____________________________].
[If applicable, insert - The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert
__ (1) on ______________________ in any year commencing with the year
_________________ and ending with the year _________________ through operation
of the sinking fund for this series at a Redemption Price equal to
_____________% of the principal amount, and (2)] at any time [on or after
_____________________, 19___.], as a whole or in part, at the election of the
Company, at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [on or before _____________________________,
___________%, and if redeemed] during the 12-month period beginning
______________________________ the years indicated,
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
---- ---------- ---- ----------
and thereafter at a Redemption Price equal to _________________% of the
principal amount, together in the case of any such redemption [if applicable,
insert - (whether through operation of the sinking fund or otherwise)] with
accrued interest to the Redemption Date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders
of such Securities, or one or more Predecessor Securities, of record at the
close of business on the relevant Record Dates referred to on the face hereof,
all as provided in the Indenture.]
[If applicable, insert - The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ____________ in
any year commencing with the year ___________ and ending with the year
_____________ through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table
below, and (2) at any time [on or after ____________________], as a whole or in
part, at the election of the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund (expressed as percentages
of the principal amount) set
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<PAGE> 23
forth in the table below: If redeemed during the 12-month period beginning
___________________ of the years indicated,
REDEMPTION PRICE FOR REDEMPTION PRICE FOR
REDEMPTION THROUGH REDEMPTION OTHERWISE
OPERATION OF THE THAN THROUGH OPERATION
YEAR SINKING FUND OF THE SINKING FUND
---- -------------------- ----------------------
and thereafter at a Redemption Price equal to ____________% of the principal
amount, together in the case of any such redemption (whether through operation
of the sinking fund or otherwise) with accrued interest to the Redemption Date,
but interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert - Notwithstanding the foregoing, the Company
may not, prior to ____________, redeem any Securities of this series as
contemplated by [Clause (2) of] the preceding paragraph as a part of, or in
anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having all interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less
than ___________% per annum.]
[If applicable, insert -The sinking fund for this series provides for
the redemption on ____________________________ in each year beginning with the
year and ending with the year ______________ of [not less than]
$_________________________ [("mandatory sinking fund") and not more than
$________________________] aggregate principal amount of Securities of this
series. [Securities of this series acquired or redeemed by the Company
otherwise than through [mandatory] sinking fund payments may be credited
against subsequent [mandatory] sinking fund payments otherwise required to be
made [in the [describe order] in which they become due].]
[If the Security is subject to redemption, insert - In the event of
redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.]
[If the Security is not an Original Issue Discount Security, insert -
If an Event of Default with respect to Securities of this series shall occur
and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]
[If the Security is an Original issue Discount Security, insert - If
an Event of Default with respect to Securities of this series shall occur and
be continuing, an amount of principal of the
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<PAGE> 24
Securities of this series may be declared due and payable in the manner and
with the effect provided in the Indenture. Such amount shall be equal to -
insert formula for determining the amount. Upon payment of (i) the amount of
principal so declared due and payable and (ii) interest on any overdue
principal and overdue interest (in each case to the extent that the payment of
such interest shall be legally enforceable), all of the Company's obligations
in respect of the payment of the principal of and interest, if any, on the
Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of more than 50% in principal amount of the
Securities at the time Outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange here for or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of the Company on this Security upon compliance by the
Company with certain conditions set forth therein, which provisions apply to
this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall, without the consent of the Holder, alter or impair
the right of the Holder, which is absolute and unconditional, to receive
payment of principal of and any premium and interest on this Security at the
times, place and rate, and in the coin or currency, herein prescribed, except
for Section 113 of the Indenture (which limits interest to the maximum amount
permissible by law), the provisions of which are incorporated herein by
reference.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registerable in the
Security Register, upon surrender of this Security for registration of transfer
at the office or agency of the Company in any place where the principal of and
any premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities
of this series, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $______________ and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series of a different
authorized denomination, as requested by the Holder surrendering the same.
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No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
SECTION 204. Form of Legend for Global Securities.
Any Global Security authenticated and delivered hereunder shall bear a
legend in substantially the following form:
"This Security is a Global Security 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 Security is exchangeable
for Securities 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 Security (other than a
transfer of this 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 or by the Depository or any such
nominee of the Depository to a successor Depository or a nominee of
such successor Depository) may be registered except in such limited
circumstances."
SECTION 205. Form of Legend for Global Securities.
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
HSBC Bank USA
as Trustee
By
------------------------------------------------
Authorized Signatory
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ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto,
prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Section 304, 305,
306, 906 or 1107 and except for any Securities which, pursuant to
Section 303, are deemed never to have been authenticated and delivered
hereunder);
(3) The Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest,
(4) the date or dates on which the principal of and any
premium on the Securities of the series is payable,
(5) the rate or rates (which may be fixed or variable), or
the method by which such rate or rates shall be determined, at which
the Securities of the series shall bear interest, if any, the date or
dates from which such interest shall accrue, or the method by which
such date or dates shall be determined, the Interest Payment Dates on
which any such interest shall be payable and the Regular Record Date
for any interest payable on any Interest Payment Date,
(6) the place or places where the principal of and any
premium and interest on Securities of the series shall be payable;
(7) the period or periods within which, the price or prices
at which and the terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the
Company, if the Company is to have that option;
(8) the obligation, if any, and the option, if any, of the
Company to redeem, purchase or repay Securities of the series pursuant
to any sinking fund or analogous provisions or at the option of a
Holder thereof and the period or periods within which, the
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price or prices at which and the terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation or option;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable,
(10) the currency, currencies or currency units in which
payment of the principal of and any premium and interest on any
Securities of the series shall be payable if other than the currency
of the United States of America and the manner of determining the
equivalent thereof in the currency of the United States of America for
purposes of the definition of "Outstanding" in Section 101;
(11) if the amount of payments of principal of or any premium
or interest on any Securities of the series may be determined with
reference to an index, the manner in which such amounts shall be
determined;
(12) If the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the
Company or a Holder thereof, in one or more currencies or currency
units other than that or those in which the Securities are stated to
be payable, the currency, currencies or currency units in which
payment of the principal of and any premium and interest on Securities
of such series as to which such election is made shall be payable, and
the periods within which and the terms and conditions upon which such
election is to be made;
(13) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502 or provable in bankruptcy pursuant to Section
504 or the method by which such portion shall be determined;
(14) any trustees, paying agents, transfer agents or
registrars with respect to Securities of such series;
(15) whether the Securities of the series shall be issued
upon original issuance in whole or in part in the form of one or more
Global Securities and, in such case, (a) the Depository with respect
to such Global Security or Securities, which Depository at the time of
designation and at all times while it serves as Depository shall be a
clearing agency registered under the Securities Exchange Act of 1934,
as amended; and (b) the circumstances under which any such Global
Security may be exchanged for Securities registered in the name of,
and any transfer of such Global Security may be registered to, a
Person other than such Depository or its nominee, if other than as set
forth in Section 305; and
(16) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as
permitted by Section 901(5)).
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All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to the Board Resolution referred to above and set forth, or determined
in the manner provided, in the Officers' Certificate referred to above or in
any such indenture supplemental hereto.
If any of the terms of the 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 the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities of each series shall be executed on behalf of the
Company by its Chairman of the Board, a Vice Chairman of the Board, its
President or one of its Vice Presidents, under its corporate seal reproduced
thereon attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Securities may be manual or
facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by
the Company to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate, Board
Resolution, supplemental indenture or Opinion of Counsel otherwise required
pursuant to Sections 102, 201 or 301 or the Company Order otherwise required
pursuant to such preceding paragraph at or prior to the time of authentication
of each Security of such series if such documents are delivered at or prior to
the authentication upon original issuance of the first Security of such series
to be issued.
A Company Order, Officer's Certificate or Board Resolution or
supplemental indenture delivered by the Company to the Trustee in the
circumstances set forth in the preceding paragraph may provide that Securities
which are the subject thereof will be authenticated and delivered by the
Trustee or its agent on original issue from time to time in the aggregate
principal amount, if any,
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established for such series pursuant to such procedures acceptable to the
Trustee as may be specified from time to time by Company Order upon the
telephonic, electronic, or written order of Persons designated in such Company
Order, Officers' Certificate, supplemental indenture or Board Resolution (any
such telephonic or electronic instructions to be promptly confirmed in writing
by such Persons) and that such Persons are authorized to determine, consistent
with such Company Order, Officers' Certificate, supplemental indenture or Board
Resolution, such terms and conditions of said Securities as are specified in
such Company Order, Officers' Certificate, supplemental indenture or Board
Resolution.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section
309, together with a written statement (which need not comply with Section 102
and need not be accompanied by an Opinion of Counsel) stating that such
Security has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
The Trustee shall not be required to authenticate such Securities if
the issue thereof will adversely affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and
of a like aggregate principal amount and tenor. Until so exchanged the
temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series.
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SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept a register for each series of
Securities (the registers so maintained being herein sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. The "Security Registrar" for the
purpose of registering Securities and transfers of Securities as herein
provided shall be either the Company or such other Person as the Company may
appoint, including the Trustee.
In no case shall there be more than one Security Register for a series
of Securities. If the Trustee shall at any time not be authorized to keep and
maintain the Security Register with respect to any series of Securities, the
Trustee shall have the right to inspect the Security Register for such series
of Securities at all reasonable times and to rely conclusively upon a
certificate of the Person in charge of such Security Register as to the names
and addresses of the Holders of the Securities and the principal amounts and
numbers of such Securities so held.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like tenor and
aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
a like tenor and aggregate principal amount, upon surrender of the Securities
to be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange
is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Security Registrar)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
1103 and ending at the close of business on the day of such mailing, or (ii) to
register the transfer
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of or exchange any Security so selected for redemption in whole or in part
except the unredeemed portion of any Security being redeemed in part.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any Global Security shall be exchangeable pursuant
to this Section 305 for Securities registered in the names of, and a transfer
of a Global Security of any series may be registered to, any Person other than
the Depository for such Security or its nominee only if (i) such Depository
notifies the Company that it is unwilling or unable to continue as Depository
for such Global Security or if at any time such Depository ceases to be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, (ii) the Company executes and delivers to the Trustee a Company Order
that such Global Security shall be so exchangeable and the transfer thereof so
registrable or (iii) there shall have occurred and be continuing an Event of
Default or an event which, with the giving of notice or lapse of time, or both,
would constitute an Event of Default with respect to the Securities of such
series. Upon the occurrence in respect of any Global Security of any series of
any one or more of the conditions specified in clauses (i), (ii) or (iii) of
the preceding sentence or such other conditions as may be specified as
contemplated by Section 301 for such series, such Global Security may be
exchanged for Securities registered in the names of, and the transfer of such
Global Security may be registered to, such Persons (including Persons other
than the Depository with respect to such series and its nominees) as such
Depository shall direct. Notwithstanding any other provision of this Indenture,
any Security authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, any Global Security shall also be a Global
Security and bear the legend specified in Section 204 except for any Security
authenticated and delivered in exchange for, or upon registration of transfer
of, a Global Security pursuant to the preceding sentence.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
purchaser without notice of any adverse claim, the Company shall execute and
the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost
or stolen Security, a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, 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.
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Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duty provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series 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 be not more than 15 days and not 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 Holder of Securities of such series at his address as
it appears in the Security Register, 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 so
mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Securities of such series
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(or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
Unless otherwise specified pursuant to Section 301, at the option of
the Company, interest on the Securities of any series that bears interest may
be paid by mailing a check to the address of any Holder as such address shall
appear in the Securities Register.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium
and (subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by a Depository or impair, as between a
Depository and holders of beneficial interests in any Global Security, the
operation of customary practices governing the exercise of the rights of the
Depository (or its nominee) as Holder of such Global Security.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by
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<PAGE> 34
this Indenture. All canceled Securities held by the Trustee shall be disposed
of by the Trustee in accordance with its customary procedures unless the
Trustee is otherwise directed by a Company Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
With respect to any series of Securities, if at any time (a) the
Company shall have paid or caused to be paid the principal of and any premium
and interest on all the Securities of such series Outstanding hereunder, as and
when the same shall have become due and payable, or (b) the Company shall have
delivered to the Trustee for cancellation all Securities of such series
theretofore authenticated (other than any Securities of such series which shall
have been apparently destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 306) or (c) the Company and the Trustee
shall have entered into an agreement in form and substance satisfactory to the
Company and the Trustee providing for the creation of an escrow fund and the
Company shall have irrevocably deposited or caused to be so deposited in trust
with the Trustee, as escrow agent of said fund, sufficient funds in cash and/or
Eligible Obligations and/or U.S. Government Obligations, maturing as to
principal and interest in such amounts and at such times, as will be sufficient
without consideration of any reinvestment of such interest, and as further
expressed in the opinion of a nationally recognized firm of independent public
accountants in a written certification thereof delivered to the Trustee at or
prior to the time of such deposit, to pay at the Stated Maturity or Redemption
Date all such Securities of such series not theretofore delivered to the
Trustee for cancellation, including principal and any premium and interest to
the Stated Maturity or Redemption Date, and if the Company shall also pay or
cause to be paid all other sums payable hereunder by the Company, then this
Indenture shall cease to be of further effect with respect to the Securities of
such series (except as to (i) rights of registration of transfer and exchange,
(ii) substitution of mutilated, defaced, or apparently destroyed, lost or
stolen Securities of such series, (iii) rights of Holders of Securities of such
series to receive payments of principal thereof (and premium, if any) and
interest thereon and remaining obligations to make mandatory sinking fund
payments, (iv) the rights, remaining obligations, if any, and immunities of the
Trustee hereunder and (v) the rights of the Holders of Securities of such
series as beneficiaries hereof with respect to the property so deposited with
the Trustee payable to all or any of them), and the Trustee, on demand of the
Company accompanied by an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture with respect to the Securities of
such series have been complied with, and at the cost and expense of the
Company, shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture with respect to the Securities of such series. In
the event Eligible Obligations are to be deposited with the Trustee pursuant to
this Section, the Opinion of Counsel to be delivered hereunder
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shall state substantially to the effect that neither the Trustee nor any trust
fund deposit created pursuant to this Section will be required to be registered
under the Investment Company Act of 1940, as amended. The Company agrees to
reimburse the Trustee for any costs or expenses thereafter reasonably and
properly incurred and to compensate the Trustee for any services thereafter
reasonably and properly rendered by the Trustee in connection with this
Indenture or the Securities of such series.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Securities of such series, the obligations of the Company to the
Trustee under Section 607 and, if funds shall have been deposited with the
Trustee pursuant to subclause (c) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities of the
relevant series and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal and
any premium and interest for whose payment such money has been deposited with
the Trustee, which funds need not be segregated except to the extent required
by law.
SECTION 403. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or
securities in accordance with Section 402 of this Indenture, by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 401 of this Indenture, until such time as the Trustee or Paying Agent
is permitted to apply all such money or securities in accordance with Section
402 of this Indenture; provided that, if the Company has made any payment of
principal of or interest on any Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money or securities held by
the Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default," wherever used herein with respect to Securities of
any series, 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) which shall have occurred and is continuing:
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(1) default in the payment of any interest upon any Security
of that series when such interest becomes due and payable or default
in the payment of any mandatory sinking fund payment provided for by
the terms of any series of Securities, and continuance of such default
for a period of 30 days; or
(2) default in the payment of the principal of (or premium,
if any, on) any Security of that series at its Maturity; or
(3) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere
in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of one or more
series of Securities other than that series), and continuance of such
default or breach for a period of 60 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in the
principal amount of the Outstanding Securities of such series 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
(4) without petition, approval or consent of the Company, a
period of 60 days shall have elapsed after
(a) the entry of an order for relief under the
Federal Bankruptcy Act by a court of competent jurisdiction,
or
(b) The entry by a court of competent jurisdiction
of an order granting relief under any applicable bankruptcy,
insolvency or other similar law or statute of the United
States of America or any State thereof; or
(c) the appointment by such a court of a trustee,
custodian, receiver or other similar official of the Company
or of all or any substantial part of its property upon the
application of any creditor in any insolvency or bankruptcy
proceeding or other creditor's suit;
but such period of 60 days shall not include any period during which
any such decree or order shall be stayed upon appeal or otherwise; or
(5) the filing by the Company of, or consenting or
acquiescing by the Company to a petition seeking an order for relief
under the Federal Bankruptcy Act or the making by it of an assignment
for the benefit of creditors or the consenting by it to, or failure by
it to contest, the appointment of a custodian or receiver of all or
any substantial part of the property of the Company; or the filing by
the Company of a petition or answer seeking, consenting to or
acquiescing in the granting of relief under any other applicable
bankruptcy, insolvency or other similar law or statute of the United
States of America or any State thereof; or
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(6) any other Event of Default provided with respect to
Securities of that series.
The Trustee shall not be charged with or be deemed to have knowledge
of any default or Event of Default, except for Events of Default specified in
clause (1) or (2) of this Section 501, until a Responsible Officer has actual
notice thereof or until a written notice of any such event is received by the
Trustee at the Corporate Trust Office, Attention: Corporate Trust Department
and such notice refers to the Securities generally, the Company or this
Indenture.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default described in clause (1), (2) or (6) of Section
501 with respect to Securities of any series at the time Outstanding has
occurred, then in every such case, during the continuance of any such Event of
Default, the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series may declare the principal amount (or,
if the Securities of that series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that
series) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
portion thereof) shall become immediately due and payable. If an Event of
Default described in clause (3) of Section 501 occurs and is continuing, then
in every such case the Trustee or the Holders of not less than 25% in principal
amount of all the Securities then Outstanding may declare the principal amount
(or, if any such Securities are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that
series) of all of the Securities to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by the Holders), and
upon any such declaration such principal amount (or specified portion thereof)
shall become immediately due and payable. If an Event of Default described in
clause (4) or (5) of Section 501 occurs and is continuing, the principal of and
any interest on all of the Securities then Outstanding shall become immediately
due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series (or of all series, as the case may be) has been made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders of a
majority in principal amount of the Outstanding Securities of that series (or
of all series, as the case may be), by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that
series (or of all series, as the case may be),
(B) the principal of (and premium, if any, on) any
Securities of that series (or of all series, as the case may
be) which has become due otherwise than by such declaration
of acceleration and any interest thereon at the rate or rates
prescribed therefor in such Securities,
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(C) to the extent that payment of such interest is
legally enforceable, interest upon overdue interest at the
rate or rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section
607;
and
(2) all Events of Default with respect to Securities of that
series (or of all series, as the case may be), other than the
non-payment of the principal of Securities of that series (or of all
series, as the case may be), which has become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 607.
If an Event of Default with respect to Securities of any series (or of
all series, as the case may be) occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series (or of all series, as the case may be) by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
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SECTION 504. Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company (or any other obligor upon the Securities),
its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders
and the Trustee allowed in any such proceeding. In particular, the Trustee
shall be authorized to file and prove a claim for the whole amount of principal
(and premium, if any) and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607) and of the Holders allowed in such judicial proceeding, and to
collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any amount due
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 607, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any
premium or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
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SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal and any
premium and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) The Holders of not less than 25% in principal amount of
the Outstanding Securities of that series in the case of any Event of
Default described in clause (1), (2) or (6) of Section 501, or the
Holders of not less than 25% in principal amount of all Outstanding
Securities in the case of any Event of Default described in clause
(3), (4) or (5) of Section 501, shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) The Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has filled to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of
not less than a majority in principal amount of the Outstanding
Securities of that series in the case of any Event of Default
described in clause (1), (2) or (6) of Section 501, or, in the case of
any Event of Default described in clause (3), (4) or (5) of Section
501, by the Holders of not less than a majority in principal amount of
all Outstanding Securities;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Securities of the same series, in the case of any Event of Default
described in clause ( 1), (2) or (6) of Section 501, or of Holders of all
Securities in the case of any Event of Default described in clause (3), (4) or
(5) of Section 501, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all Holders of Securities of the same series, in the case of any Event of
Default described in clause (1), (2) or (6)
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of Section 501, or of Holders of all Securities in the case of any Event of
Default described in clause (3), (4) or (5) of Section 501.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section
307) any interest on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. Control by Holders.
With respect to the Securities of any series, the Holders of not less
than a majority in principal amount of the Outstanding Securities of such
series 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, relating to or arising under clause (1), (2)
or
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(6) of Section 501, and, with respect to all Securities, the Holders of not
less than a majority in principal amount of all Outstanding Securities 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, not relating to or arising under clause (1),
(2) or (6) of Section 501, provided that in each case
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(2) The Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
Subject to Section 502, the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the Securities of such series waive any past default
described in clause (1), (2) or (6) of Section 501 (or, in the case of a
default described in clause (3), (4) or (5) of Section 501, the Holders of not
less than a majority in principal amount of all Outstanding Securities may
waive any such past default), and its consequences, except a default
(1) in respect of the payment of the principal of or any
premium or interest on any Security, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shaft extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
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, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit
to file an undertaking to pay the costs of such suit, and may assess costs
against any such party litigant, in the manner and to the extent provided in
the Trust Indenture Act; provided that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company
or the Trustee.
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SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it 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 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.
SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series
and the Trustee knows of such default, the Trustee shall give the Holders of
Securities of such series notice of such default as and to the extent provided
by the Trust Indenture Act; provided, however, that (a) in the case of any
default of the character specified in Section 501(3) with respect to Securities
of such series, no such notice to Holders shall be given until at least 30 days
after the occurrence thereof, and (b) except in the case of a default in the
payment of the principal of or any premium or interest on any Security of such
series or in the payment of any sinking fund installment with respect to
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the Board of Directors, the Executive Committee or
Trust Committee of Directors or a Responsible Officer of the Trustee in good
faith determines that the withholding of such notice is in the interest of the
Holders of the Securities of such series. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities of such
series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(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,
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direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(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) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of 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;
(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
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) 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, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(g) 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;
(h) the Trustee shall have no responsibility to determine
whether any payments with respect to the Securities are in compliance
with any applicable usury laws and subsequent revisions, repeals or
judicial interpretations thereof. Notwithstanding any provisions of
this Indenture or the Securities, the Trustee and any Paying Agent
shall have the right to assume that payments with respect to the
Securities are in compliance with any applicable usury laws unless and
until it shall have received from the Company, in conformity with
Sections 102 and 103 of this Indenture, (1) an Opinion of Counsel to
the effect that, as the result of a final judicial interpretation by a
court of competent jurisdiction, any payments with respect to the
Securities will exceed the maximum amount allowed by applicable law
and that any direction to the Trustee by the Company for action under
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Section 113 of this Indenture is in compliance with all applicable
usury laws and the provisions of this Indenture and the Securities and
(2) an Officers' Certificate setting forth the action required to be
taken with respect to the Securities pursuant to Section 113 of this
Indenture, together with any computations or calculations with respect
thereof, and stating that such action is in compliance with the
provisions of this Indenture and the Securities;
(i) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, which shall
conform to Section 102. The Trustee shall not be liable for any action
it takes or omits to take in good faith in reliance on such
certificate or opinion; and
(j) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferree upon
it by this Indenture.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations
as to the legality, validity or sufficiency of this Indenture or of the
Securities. The Trustee or any Authenticating Agent shall not be accountable
for the use or application by the Company of Securities or the proceeds
thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or of the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 608 and 613, may otherwise deal with the Company with
the same rights it would have if it were not the Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee and any
Paying Agent shall be under no liability for interest on any money received by
it hereunder except as otherwise agreed in writing with the Company.
SECTION 607. Compensation and Reimbursement
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of any express trust);
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(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including, without
limitation, 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 its negligence or
willful misconduct; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
willful misconduct on its part, arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim
or liability In connection with the exercise or performance of any of
its powers or duties hereunder.
To secure the Company's payment obligations in this Section 607, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, in its capacity as Trustee under this Indenture,
except money or property held in trust to pay principal of, premium, if any,
and interest on particular Securities;
If the Trustee incurs expenses or renders services after the
occurrence of an Event of Default specified in clause (4) or (5) of Section
501, the expenses and the compensation for the services will be intended to
constitute expenses of administration under Title 11 of the United States
Bankruptcy Code or any applicable federal or state law for relief of debtors;
and
The provisions of this Section 607 shall survive the resignation or
removal of the Trustee and the termination of this Indenture.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has 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 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which 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 and its Corporate
Trust Office in New York, New York. If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of said
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 Trustee 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.
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SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the 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 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to
the Company. If the instrument of acceptance by a successor Trustee
required by Section 611 shall not have been delivered to the Trustee
within 30 days after the giving 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 the Securities
of such series.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fall to comply with Section
608 after written request therefor by the Company or by any
Holder . who has been a bona fide Holder of a Security of the
applicable series for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting
with respect to any series of Securities or shall be adjudged
a bankrupt or insolvent or 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, (i) the Company by a Board Resolution may
remove the Trustee with respect to any one or more of such series of
Securities, or (ii) subject to Section 514, any Holder who has been a
bona fide Holder of a Security of that series 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 or Trustees with respect to
Securities of that series.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, with respect to the Outstanding Securities of
one or more series, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one
Trustee with respect, to the Securities of any particular series) and
shall comply with the applicable
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requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any
series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company
or the Holders and accepted appointment in the manner required by
Section 611, any Holder who has been a bona fide Holder of a Security
of such series 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 Trustee with respect
to the Securities of such series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with respect to the
Securities of any series to all Holders of Securities of such series
in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee with respect to the Securities of such
series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all series of Outstanding Securities, every
such successor Trustee so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on the request of the Company or the successor Trustee,
such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor Trustee
with respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each Successor
Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is
not retiring
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shall continue to be vested in the retiring Trustee, and (3) shall 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 and 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 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 and each such
successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates;
but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, 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) and (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.
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation 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. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
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SECTION 614. Appointment of Authenticating Agent.
The Trustee may, with notice to the Company, appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon original issue and upon exchange, registration of transfer
or partial redemption thereof or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
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 an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
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The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
----------------------------------------
HSBC Bank USA
As Trustee
By
--------------------------------------
As Authenticating Agent
By
--------------------------------------
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will, with respect to each series of Securities
Outstanding, furnish or cause to be furnished to the Trustee
(a) semi-annually, on dates mutually acceptable to the
Trustee and the Company, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of such
series as of a date mutually acceptable to the Trustee and 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 (or if any provision
of this Indenture or any Security requires the Trustee to interact
with Holders of any Security as of a given date, such list to provide
the names and addresses of the Holders as of such date);
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
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SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained
in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders received by the
Trustee in its capacity as Paying Agent. The Trustee may destroy any
list furnished to it as provided in Section 701 upon receipt of a new
list so furnished.
(b) The rights of the Holders to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the
Trustee, shall be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company
nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names and
addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) Within 60 days after each May 15, beginning May 15, 2000,
the Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange upon which any Securities as to which it is Trustee are
listed, with the Commission and with the Company. The Company will
notify the Trustee when any Securities are listed on any stock
exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant to such Act; provided, however,
that any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 shall be filed with the Trustee within 15 days after the same is so
required to be filed with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALE
SECTION 801. Consolidation, Merger or Sale Permitted Under Certain
Conditions.
Nothing contained in this Indenture or in the Securities shall be
deemed to prevent the consolidation or merger of the Company with or into any
other Person, or the merger into the Company of any other Person, or the sale
by the Company of its property and assets as, or
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substantially as, an entirety, or otherwise; provided, however, (a) that, in
case of any such consolidation or merger, the Person resulting from such
consolidation or any Person other than the Company into which such merger shall
be made 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 hereto and
shall become liable and be bound for, and shall expressly assume, by an
indenture supplemental hereto in form satisfactory to the Trustee executed and
delivered to the Trustee, the due and punctual payment of the principal of (and
premium, if any) and interest on, all the Securities then Outstanding and the
performance and observance of each and every covenant and condition of this
Indenture on the part of the Company to be performed or observed, and (b) that,
as a condition of any such sale of the property and assets of the Company as,
or substantially as, an entirety, the Person to which such property and assets
shall be sold shall (i) expressly assume, as a part of the purchase price
thereof, the due and punctual payment of the principal of (and premium, if any)
and interest on all the Securities and the performance and observance of all
the covenants and conditions of this Indenture on the part of the Company to be
performed or observed, and (ii) simultaneously with the delivery to it of the
conveyances or instruments of transfer of such property and assets, execute and
deliver to the Trustee an indenture supplemental hereto in form satisfactory to
the Trustee, whereby such purchasing Person shall so assume the due and
punctual payment of the principal of (and premium, if any) and interest on all
the Securities then outstanding and the performance and observance of each and
every covenant and condition of this Indenture on the part of the Company to be
performed or observed, to the same extent that the Company be bound and liable
and provided further that no such consolidation, merger or sale shall be made
if, immediately after such transaction the Person (whether the Company or such
other Person) formed by or surviving any such consolidation or merger, or to
which such sale or conveyance shall have been made, shall be in default in the
performance or observance of any of the terms, covenants and conditions of this
Indenture to be kept or performed by the Company, and (if other than the
Company) shall not be a Person organized under the laws of the United States or
a State thereof.
SECTION 802. Substitution of Successor Person for the Company.
The Company will not consolidate with any other Person or permit the
Company to be merged into any other Person, or sell its property and assets as,
or substantially as, an entirety except upon the terms and conditions set forth
in this Article Eight. If at any time there be any consolidation, merger, sale
or conveyance of property to which the covenants of this Article Eight are
applicable, then in any such event the successor Person will promptly deliver
to the Trustee: (i) an Officers' Certificate stating that as of the time
immediately after the effective date of any such transaction the covenants of
the Company contained in this Article Eight have been complied with and the
successor Person is not in default under the provisions of this Indenture; and
(ii) an Opinion of Counsel stating that in his opinion such covenants have been
compiled with and that any instrument or instruments executed in the
performance of such covenants comply with the requirements thereof. Upon any
consolidation or merger, or any sale of the property and assets of the Company
as, or substantially as, an entirety in accordance with the provisions of this
Article Eight, the Person formed by such consolidation or into which the
Company shall have been merged or to which such sale shall have been made shall
succeed to and be substituted for the Company with the same effect as if it had
been named herein as a party hereto, and thereafter from time to time such
Person may exercise each and every right and power of the Company under this
Indenture, in the name of the Company or in its own name; and any act or
proceeding by any provision of this
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Indenture required or permitted to be done by any board or officer of the
Company may be done with like force and effect by the like board or officer of
any Person that shall at the time be the successor of the Company hereunder;
and in the event of any such conveyance or transfer, the Company (which term
shall for this purpose mean the Person named as the "Company" in the first
paragraph of this Indenture or any prior successor Person which shall
theretofore have become such in the manner described in Section 801) shall be
discharged from all obligations and covenants under the Indenture and the
Securities and may be dissolved and liquidated.
SECTION 803. Opinion of Counsel and Officers' Certificate to be given
to Trustee.
The Trustee shall be entitled to receive an Opinion of Counsel and
Officers' Certificate as conclusive evidence that any such consolidation,
merger, sale or conveyance and any assumption permitted or required by the
terms of this Article Eight comply with the provisions of this Article Eight.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default with respect to
all or any series of Securities (and if such Events of Default are to
be for the benefit of less than all series of Securities, stating that
such Events of Default are being included solely for the benefit of
such series); or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or
to permit or facilitate the issuance of Securities in uncertificated
form; or
(5) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities,
provided that any such addition, change or
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elimination (i) shall neither (A) apply to any Security of any series
created prior to the execution of such supplemental indenture entitled
to the benefit of such provision nor (B) modify the rights of the
Holder of any such Security with respect to such provision or (ii)
shall become effective with respect to any such series only when there
is no Security of such series Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to 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,
pursuant to the requirements of Section 611(b); or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action
pursuant to this clause (9) shall not, as evidenced by an Opinion of
Counsel delivered to the Trustee, adversely affect the interests of
the Holders of Securities of any series in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of more than 50% in principal amount
of all Outstanding Securities affected by such supplemental indenture, by Act
of said Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the right of the Holders of Securities
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce
the principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or reduce the amount of
the principal of an Original Issue Discount Security that would be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502 or the amount thereof provable in bankruptcy
pursuant to Section 504, or change any Place of Payment where, or the
coin or currency in which, any Security or any premium or interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date), or
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(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513
or Section 1009, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby, provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this
Section and Section 1009, or the deletion of this proviso, in
accordance with the requirements of Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying upon,
in addition to the documents required by Section 102, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture and that it will be valid and binding upon the
Company. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties,
immunities or liabilities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
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SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay or cause to be paid the
principal of and any premium and interest on the Securities of that series in
accordance with the terms of the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. 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, surrenders, 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, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee and the
Holders of such series of any such designation or rescission and of any change
in the location of any such other office or agency.
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SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium and interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of or
any premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay the principal and any premium and interest so
becoming due, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (i) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
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
by Company Order 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 trusts 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 money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease.
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SECTION 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the
loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in
good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary;
provided, however, that the Company shall not be required to pay or discharge
or cause to be paid or discharged any such tax, assessment or charge whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 1007. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate signed by the principal executive officer, principal financial
officer or principal accounting officer of the Company, stating whether or not
to the best knowledge of the signers thereof the Company is in default in the
performance and observance of any of the terms, provisions and conditions of
this Indenture, and, if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.
SECTION 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1002, and 1004 to 1006,
inclusive, if before the time for such compliance the Holders of more than 50%
in principal amount of the Outstanding Securities shall, by Act of such
Holders, waive such compliance in such instance with such term, provision or
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<PAGE> 60
condition. In the event that there shall be included in this Indenture any
covenant, other than a covenant to pay principal, premium (if any) and
interest, solely for the benefit of one or more, but less than all, series of
Securities, then, unless otherwise expressly provided with respect to such
covenant, the Company may similarly omit in any particular instance to comply
with any term, provision or condition of such covenant if before the time for
such compliance the Holders of more than 50% in principal amount of all
Outstanding Securities entitled to the benefit of such covenant, by Act of such
Holders, waive such compliance in such instance with such term, provision or
condition. No such waiver contemplated by this Section 1008 shall extend to or
affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
SECTION 1009. Negative Pledge and Exceptions Thereto.
So long as any of the Securities are outstanding, the Company shall
not, directly or indirectly, create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, except in favor of the Company or
any Subsidiary, any Lien upon any of its property, assets or revenues, whether
now owned or hereafter acquired, to secure any indebtedness of the Company or
any Subsidiary, without making effective provisions whereby the Securities
shall be equally and ratably secured with any and all such indebtedness so
secured and with any other indebtedness similarly entitled to be equally and
ratably secured; provided, however, that this restriction shall not apply to or
prevent the creation or existence of any:
(1) Liens for taxes, assessments or charges imposed on the
Company or any Subsidiary or any of their property by any governmental
authority not yet due or which are being contested in good faith by
appropriate proceedings if adequate reserves with respect thereto are
maintained on the books of the Company or any of its Subsidiaries, as
the case may be, in accordance with generally accepted accounting
principles applicable to electric utilities generally at the time;
(2) Liens imposed by law, such as carriers' warehousemen's,
mechanics', materialmen's, repairmen's or other like Liens incurred in
the ordinary course of business and securing obligations that are not
yet due or that are being contested in good faith by appropriate
proceedings, and Liens arising out of judgments or awards not
exceeding $25,000,000 in the aggregate with respect to which appeals
are being prosecuted, execution pending such appeals having been
effectively stayed;
(3) pledges or deposits in connection with worker's
compensation, unemployment insurance and other social security laws,
or to secure the performance of bids, tenders contracts (other than
for borrowed money), leases, statutory obligations, surety or appeal
bonds, or indemnity, performance or other similar bonds, in the
ordinary course of business;
(4) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and
encumbrances consisting of zoning restrictions, easements, licenses,
restrictions on the use of property or minor imperfections in title
thereto which, in the aggregate, are not material in amount, and which
do not in any
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<PAGE> 61
case materially detract from the value of the property subject thereto
or interfere with the ordinary conduct of the business of the Company
or any of its Subsidiaries;
(5) the Lien of the Indenture of Mortgage and Deed of Trust
dated July 1, 1945, as supplemented and in effect from time to time,
from the Company to the Marine Midland Trust Company of New York (now
HSBC Bank USA) (the "Mortgage");
(6) Permitted Encumbrances (as defined in Section 1.11 of the
Mortgage);
(7) Liens securing the payment of Tax-Free Debt, provided
that each such Lien shall extend only to the property, and proceeds
thereof, being financed by the Tax-Free Debt secured thereby;
(8) Liens on or over the whole or any part of the assets of
the Company as security for any indebtedness owing by the Company to
any Subsidiary whose primary function is that of acting as a financing
Subsidiary of the Company and consisting of one or more loans made to
the Company by such Subsidiary and repayable on the same date as a
loan or other indebtedness incurred by such Subsidiary; provided,
however, that the aggregate principal amount of the indebtedness
secured by all such Liens shall not exceed the aggregate principal
amount of all such indebtedness incurred by such Subsidiary; and
provided further, that the aggregate principal amount of the
indebtedness secured by all such Liens shall not exceed $100,000,000;
(9) Liens over all or any part of the assets of the Company
or any Subsidiary of the Company constituting a specific construction
project or generating plant as security for any indebtedness incurred
for the purpose of financing all or such part, as the case may be, of
such construction project or generating plant, and undetermined Liens
and charges incidental to such construction;
(10) the right reserved to, or vested in, any municipality or
public authority by the terms of any right, power, franchise, grant,
license, permit or by any provision of law, to purchase or recapture
or designate a purchaser of, any property;
(11) Liens on property or assets of any Subsidiary in favor
of the Company;
(12) Liens with respect to which cash in the amount of the
indebtedness secured by such Liens has been deposited with the Person
serving as the Agent under the Credit Agreement dated as of July 29,
1993 among the Company and the banks listed on the signature pages
thereof, as amended from time to time, or any agreement taking the
place thereof entered into hereafter by the Company; or
(13) Liens on or over specific assets hereafter acquired
which are created or assumed contemporaneously with, or within 120
days after such acquisition, for the sole purpose of financing or
refinancing the acquisition of such assets.
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<PAGE> 62
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall,
at least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee in
writing of such Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities to be
redeemed. In the case of any redemption of Securities prior to the expiration
of any restriction on such redemption provided in the terms of such Securities
or elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by lot or by
such other method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series or any integral multiple
thereof) of the principal amount of Securities of such series of a denomination
larger than the minimum authorized denomination for Securities of that series.
If less than all of the Securities of such series and of a specified tenor are
to be redeemed, the particular Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and specified tenor not previously called
for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
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<PAGE> 63
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given 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 Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company, in which event the
Company shall provide the Trustee with the information required by clauses (1)
through (6) above.
SECTION 1105. Deposit of Redemption Price.
Prior to 11:00 a.m., New York City time, on any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that date.
The Paying Agent shall provide notice to the Trustee of such deposit.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security
shall be paid by the Company
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<PAGE> 64
at the Redemption Price, together with accrued interest to the Redemption Date;
provided, however, that, unless otherwise specified as contemplated by Section
301, installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same
series and of like tenor, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered. If a Global
Security is so surrendered, such new Security so issued shall be a new Global
Security.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver to the Trustee Outstanding Securities of a
series (other than any previously called for redemption) theretofore purchased
or otherwise acquired by the Company and (2) may receive credit for Securities
of a series which have been previously delivered to the Trustee by the Company
or for Securities of a series which have been redeemed either at the election
of the Company pursuant to the terms of such Securities or through the
application of permitted
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<PAGE> 65
optional sinking fund payments pursuant to the terms of such Securities, in
each case in satisfaction of all or any part of any mandatory sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 (which Securities will, if not previously delivered,
accompany such certificate) and whether the Company intends to exercise its
right to make a permitted optional sinking fund payment with respect to such
series, and will deliver to the Trustee any Securities to be so delivered. Not
less than 30 days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 1103 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 1104. Such notice having been duly given, the redemption of
such Securities shall be made upon the terms and in the manner stated in
Sections 1106 and 1107.
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 1301. Liability Solely Corporate.
No recourse shall be had for the payment of the principal of (or
premium, if any) or interest on any Securities or any part thereof, or for any
claim based thereon or otherwise in respect thereof, or of the indebtedness
represented thereby, or upon any obligation, covenant or agreement of this
Indenture, against any incorporator, or against any stockholder, officer or
director, as such, past, present or future, 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 agreed and understood that this
Indenture and all the Securities are solely corporate obligations, and that no
personal liability whatsoever shall attach to, or be insured by, any such
incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or of any predecessor or successor corporation, either
directly or through the Company or any such predecessor or successor
corporation, because of the indebtedness hereby authorized or under or by
reason of any of the obligations, covenants, promises or agreements contained
in this Indenture or in any of the Securities or to be implicit herefrom or
therefrom; and that any such personal liability is hereby expressly waived and
released as a condition of, and as part of the consideration for, the execution
of this Indenture and the issue of the Securities; provided, however, that
nothing herein or in the Securities contained shall be taken to prevent
recourse to and the enforcement of the
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<PAGE> 66
liability, if any, of any stockholder or subscriber to capital stock of the
Company upon or in respect of shares of capital stock not fully paid up.
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.
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<PAGE> 67
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the day and year first above written.
PORTLAND GENERAL ELECTRIC COMPANY
By
--------------------------------------
Name:
Title:
HSBC BANK USA
as Trustee
By
--------------------------------------
Name:
Title:
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<PAGE> 1
EXHIBIT 5
VINSON & ELKINS
ATTORNEYS AT LAW
VINSON & ELKINS L.L.P.
2300 FIRST CITY TOWER
1001 FANNIN STREET
HOUSTON, TEXAS 77002-6760
April 30, 1999
WRITER'S TELEPHONE WRITER'S FAX
(713) 758-2222 (713) 758-2346
Portland General Electric Company
17th Floor, One World Trade Center
121 S.W. Salmon Street
Portland, OR 97204
Ladies and Gentlemen:
We are familiar with the Registration Statement on Form S-3 (the
"Registration Statement") of Portland General Electric Company, an Oregon
corporation (the "Company"), filed with the Securities and Exchange Commission
(the "Commission"), in which Registration Statement this opinion is included as
Exhibit (5), which Registration Statement relates to the proposed offering from
time to time of up to an aggregate amount of $200,000,000 of Debt Securities
issued by the Company (the "Debt Securities").
In connection therewith, we have examined, among other things, a copy
of the Articles of Incorporation and Bylaws of the Company, the corporate
proceedings taken to date with respect to the authorization, issuance and sale
of the Debt Securities, a copy of the Indenture of Mortgage and Deed of Trust
dated July 1, 1945 between the Company and The Marine Midland Trust Company of
New York (now HSBC Bank USA), as Trustee, and the Supplemental Indentures
thereto, and a copy of the Indenture dated as of April 30, 1999 (the
"Indenture") between the Company and HSBC Bank USA, as Trustee, and we have
performed such other investigations as we have deemed relevant and necessary as
the basis for the opinion expressed below. Capitalized terms used but not
defined herein are used as defined in the Registration Statement.
Based on the foregoing, and subject to the qualifications set forth
herein, we are of the opinion that:
1. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
Oregon and has all requisite corporate power required to carry
on its business as now conducted.
<PAGE> 2
Portland General Electric Company
Page 2
April 30, 1999
2. The Debt Securities of the Company have been validly
authorized for issuance, and (subject to the Registration
Statement becoming effective and any applicable state
securities or Blue Sky laws being complied with), when the
terms thereof and of their issue and sale have been duly
established, upon issuance and delivery thereof as set forth
in the Registration Statement and in accordance with such
terms, and upon receipt by the Company of the purchase price
thereof, the Debt Securities will be validly issued and will
be binding obligations of the Company.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the caption "Validity of
Securities" in the Prospectus constituting part of the Registration Statement.
By giving such consent we do not admit that we are experts with respect to any
part of the Registration Statement, including this exhibit within the meaning of
the term "expert" as used in the Securities Act of 1933, as amended, or the
rules and regulations of the Commission issued thereunder.
Very truly yours,
VINSON & ELKINS L.L.P.
<PAGE> 1
EXHIBIT 12
PORTLAND GENERAL ELECTRIC COMPANY
EARNINGS TO FIXED CHARGES - SEC BASIS
4/29/99
<TABLE>
<CAPTION>
(Thousands of Dollars) 31-Dec-98 31-Dec-97 31-Dec-96 31-Dec-95 31-Dec-94
------------- ------------- ------------- ------------- --------------
<S> <C> <C> <C> <C> <C>
NET INCOME $ 137,490 $ 125,986 $ 155,915 $ 92,787 $ 106,118
INCOME TAXES 82,453 70,019 114,112 59,709 74,937
------------- ------------- ------------- ------------- --------------
INCOME BEFORE CUMULATIVE EFFECT ITEMS AND INCOME TAXES 219,943 196,005 270,027 152,496 181,055
FIXED CHARGES, EXCLUDING PREFERRED DIVIDEND REQUIREMENT 91,136 91,268 92,809 93,012 84,650
------------- ------------- ------------- ------------- --------------
EARNINGS BEFORE INCOME TAXES AND FIXED CHARGES 311,079 287,273 362,836 245,508 265,705
------------- ------------- ------------- ------------- --------------
FIXED CHARGES:
INTEREST EXPENSE (long & short-term) 75,943 75,587 77,158 76,584 69,027
INTEREST ON LONG-TERM POWER CONTRACTS (PUD'S) 9,242 9,594 9,507 9,486 9,679
INTEREST FACTOR IN LONG-TERM LEASES 5,951 6,087 6,144 6,942 7,690
------------- ------------- ------------- ------------- --------------
TOTAL FIXED CHARGES $ 91,136 $ 91,268 $ 92,809 $ 93,012 $ 84,650
============= ============= ============= ============= ==============
RATIO OF EARNINGS TO FIXED CHARGES BEFORE INCOME TAXES 3.41 3.15 3.91 2.64 3.14
============= ============= ============= ============= ==============
</TABLE>
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that in connection with the proposed
registration by Portland General Electric Company, an Oregon corporation (the
"Company"), of Debt Securities in connection with the proposed sale of such Debt
Securities by the Company, the undersigned officer or director of the Company
hereby constitutes and appoints Ken L. Harrison, Mary K. Turina, Alvin L.
Alexanderson, and William J. Valach, and each of them (with full power to each
of them to act alone), his true and lawful attorney-in-fact and agent, for him
and on his behalf and in his name, place and stead, in any and all capacities,
to sign, execute and file a registration statement on Form S-3 relating to such
securities to be filed with the Securities and Exchange Commission, together
with all amendments thereto, with all exhibits and any and all documents
required to be filed with respect thereto with any regulatory authority,
granting unto said attorneys, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises in order to effectuate the same as fully to all intents
and purposes as the undersigned might or could do if personally present, hereby
ratifying and confirming all the said attorneys-in-fact and agents, or any of
them, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereto set his hand this 29th
day of April, 1999.
/s/ JAMES V. DERRICK, JR.
------------------------------------------
James V. Derrick, Jr.
<PAGE> 2
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that in connection with the proposed
registration by Portland General Electric Company, an Oregon corporation (the
"Company"), of Debt Securities in connection with the proposed sale of such Debt
Securities by the Company, the undersigned officer or director of the Company
hereby constitutes and appoints Ken L. Harrison, Mary K. Turina, Alvin L.
Alexanderson, and William J. Valach, and each of them (with full power to each
of them to act alone), his true and lawful attorney-in-fact and agent, for him
and on his behalf and in his name, place and stead, in any and all capacities,
to sign, execute and file a registration statement on Form S-3 relating to such
securities to be filed with the Securities and Exchange Commission, together
with all amendments thereto, with all exhibits and any and all documents
required to be filed with respect thereto with any regulatory authority,
granting unto said attorneys, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises in order to effectuate the same as fully to all intents
and purposes as the undersigned might or could do if personally present, hereby
ratifying and confirming all the said attorneys-in-fact and agents, or any of
them, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereto set his hand this 29th
day of April, 1999.
/s/ PEGGY Y. FOWLER
------------------------------------------
Peggy Y. Fowler
<PAGE> 3
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that in connection with the proposed
registration by Portland General Electric Company, an Oregon corporation (the
"Company"), of Debt Securities in connection with the proposed sale of such Debt
Securities by the Company, the undersigned officer or director of the Company
hereby constitutes and appoints Ken L. Harrison, Mary K. Turina, Alvin L.
Alexanderson, and William J. Valach, and each of them (with full power to each
of them to act alone), his true and lawful attorney-in-fact and agent, for him
and on his behalf and in his name, place and stead, in any and all capacities,
to sign, execute and file a registration statement on Form S-3 relating to such
securities to be filed with the Securities and Exchange Commission, together
with all amendments thereto, with all exhibits and any and all documents
required to be filed with respect thereto with any regulatory authority,
granting unto said attorneys, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises in order to effectuate the same as fully to all intents
and purposes as the undersigned might or could do if personally present, hereby
ratifying and confirming all the said attorneys-in-fact and agents, or any of
them, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereto set his hand this 29th
day of April, 1999.
/s/ KEN L. HARRISON
------------------------------------------
Ken L. Harrison
<PAGE> 4
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that in connection with the proposed
registration by Portland General Electric Company, an Oregon corporation (the
"Company"), of Debt Securities in connection with the proposed sale of such Debt
Securities by the Company, the undersigned officer or director of the Company
hereby constitutes and appoints Ken L. Harrison, Mary K. Turina, Alvin L.
Alexanderson, and William J. Valach, and each of them (with full power to each
of them to act alone), his true and lawful attorney-in-fact and agent, for him
and on his behalf and in his name, place and stead, in any and all capacities,
to sign, execute and file a registration statement on Form S-3 relating to such
securities to be filed with the Securities and Exchange Commission, together
with all amendments thereto, with all exhibits and any and all documents
required to be filed with respect thereto with any regulatory authority,
granting unto said attorneys, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises in order to effectuate the same as fully to all intents
and purposes as the undersigned might or could do if personally present, hereby
ratifying and confirming all the said attorneys-in-fact and agents, or any of
them, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereto set his hand this 29th
day of April, 1999.
/s/ KENNETH L. LAY
------------------------------------------
Kenneth L. Lay
<PAGE> 5
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that in connection with the proposed
registration by Portland General Electric Company, an Oregon corporation (the
"Company"), of Debt Securities in connection with the proposed sale of such Debt
Securities by the Company, the undersigned officer or director of the Company
hereby constitutes and appoints Ken L. Harrison, Mary K. Turina, Alvin L.
Alexanderson, and William J. Valach, and each of them (with full power to each
of them to act alone), his true and lawful attorney-in-fact and agent, for him
and on his behalf and in his name, place and stead, in any and all capacities,
to sign, execute and file a registration statement on Form S-3 relating to such
securities to be filed with the Securities and Exchange Commission, together
with all amendments thereto, with all exhibits and any and all documents
required to be filed with respect thereto with any regulatory authority,
granting unto said attorneys, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises in order to effectuate the same as fully to all intents
and purposes as the undersigned might or could do if personally present, hereby
ratifying and confirming all the said attorneys-in-fact and agents, or any of
them, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereto set his hand this 29th
day of April, 1999.
/s/ JEFFREY K. SKILLING
------------------------------------------
Jeffrey K. Skilling
<PAGE> 1
EXHIBIT 25(a)
CONFORMED COPY
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
MARINE MIDLAND BANK
(Exact name of trustee as specified in its charter)
New York 16-1057879
(Jurisdiction of incorporation (I.R.S. Employer
or organization if not a U.S. Identification No.)
national bank)
140 Broadway, New York, NY 10005-1180
(212) 658-1000 (Zip Code)
(Address of principal executive offices)
Warren L. Tischler
Senior Vice President
Marine Midland Bank
140 Broadway
New York, New York 10005-1180
Tel: (212) 658-5167
(Name, address and telephone number of agent for service)
PORTLAND GENERAL ELECTRIC COMPANY
(Exact name of obligor as specified in its charter)
Oregon 93-0256820
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
121 S.W. Salmon Street
Portland, Oregon 97204
(503) 464-8000 (Zip Code)
(Address of principal executive offices)
FIRST MORTGAGE BONDS, SERIES DUE
(Title of Indenture Securities)
<PAGE> 2
General
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory authority to
which it is subject.
State of New York Banking Department.
Federal Deposit Insurance Corporation, Washington, D.C.
Board of Governors of the Federal Reserve System,
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
None
<PAGE> 3
Item 16. List of Exhibits.
<TABLE>
<CAPTION>
Exhibit
- -------
<S> <C> <C>
T1A(i)
* - Copy of the Organization Certificate
of HSBC Bank USA
T1A(ii) * - Certificate of the State of New York
Banking Department dated December
31, 1993 as to the authority of HSBC
Bank USA to commence business.
T1A(iii) - Not applicable.
T1A(iv) * - Copy of the existing By-Laws of HSBC
Bank USA as adopted on January 20,
1994.
T1A(v) - Not applicable.
T1A(vi) * - Consent of HSBC Bank USA required
by Section 321(b) of the Trust
Indenture Act of 1939.
T1A(vii) - Copy of the latest report of
condition of the trustee (December
31, 1998), published pursuant to law
or the requirement of its
supervisory or examining authority.
T1A(viii) - Not applicable.
T1A(ix) - Not applicable.
</TABLE>
* Exhibits previously filed with the Securities and Exchange Commission
with Registration No. 33-53693 and incorporated herein by reference
thereto.
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
HSBC Bank USA, a banking corporation and trust company organized 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 26th day of April, 1999.
HBSC BANK USA
By: /s/ JAMES M. FOLEY
---------------------------
James M. Foley
Assistant Vice President
<PAGE> 5
<TABLE>
<S> <C>
EXHIBIT T1A (vii)
Board of Governors of the Federal Reserve System
OMB Number: 7100-0036
Federal Deposit Insurance Corporation
OMB Number: 3064-0052
Office of the Comptroller of the Currency
OMB Number: 1557-0081
FEDERAL FINANCIAL INSTITUTIONS EXAMINATION COUNCIL Expires March 31, 2000
- ------------------------------------------------------------------------------------------------------------------
Please refer to page i, [1]
Table of Contents, for
the required disclosure
of estimated burden.
CONSOLIDATED REPORTS OF CONDITION AND INCOME FOR
A BANK WITH DOMESTIC AND FOREIGN OFFICES--FFIEC 031
REPORT AT THE CLOSE OF BUSINESS DECEMBER 31, 1998
(19980930)
--------
This report is required by law; 12 U.S.C. Section 324 (State member (RCRI 9999)
banks); 12 U.S.C. Section 1817 (State nonmember banks); and 12 U.S.C. This report form is to be filed by banks with branches
Section 161 (National banks). and consolidated subsidiaries in U.S. territories and
possessions, Edge or Agreement subsidiaries, foreign
branches, consolidated foreign subsidiaries, or
International Banking Facilities.
NOTE: The Reports of Condition and Income must be signed by an The Reports of Condition and Income are to be prepared in
authorized officer and the Report of Condition must be attested accordance with Federal regulatory authority instructions.
to by not less than two directors (trustees) for State nonmember
banks and three directors for State member and National Banks. We, the undersigned directors (trustees), attest to the
correctness of this Report of Condition (including the
I, Gerald A. Ronning, Executive VP & Controller supporting schedules) 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
Name and Title of Officer Authorized to Sign Report issued by the appropriate Federal regulatory authority and
is true and correct.
of the named bank do hereby declare that these Reports of
Condition and Income (including the supporting schedules) have been
prepared in conformance with the instructions issued by the appropriate
Federal regulatory authority and are true to the best of my knowledge
and believe.
/s/ John R. H. Bond
----------------------------------------------------------
Director (Trustee)
/s/ Gerald A. Ronning /s/ Sal H. Alfiero
----------------------------------------------------- ----------------------------------------------------------
Signature of Officer Authorized to Sign Report Director (Trustee)
/s/ Bernard J. Kennedy
----------------------------------------------------------
1/22/99 Director (Trustee)
-----------------------------------------------------
Date of Signature
SUBMISSION OF REPORTS (b) in hard-copy (paper) form and arrange for another
Each Bank must prepare its Reports of Condition and Income party to convert the paper report to automated form.
either: That party (if other than EDS) must transmit the
bank's computer data file to EDS.
(a) in automated format then file the computer data file directly
with the banking agencies' collection agent, Electronic Data To fulfill the signature and attestation requirement for
System Corporation (EDS), by modem or computer diskette; or the Reports of Condition and Income for this report date,
attach this signature page to the hard-copy of the
completed report that the bank places in its files.
FDIC Certificate Number 0 0 5 8 9
---------
(RCRI 9030)
</TABLE>
<PAGE> 6
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the
Marine Midland Bank of Buffalo
Name of Bank City
in the state of New York, at the close of business December 31, 1998
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances currency and coin $1,262,346
Interest-bearing balances 2,301,100
Held-to-maturity securities 0
Available-for-sale securities 4,213,348
Federal funds sold and securities purchased under agreements to resell 86,919
Loans and lease financing receivables:
Loans and leases net of unearned income 24,009,332
LESS: Allowance for loan and lease losses 377,667
LESS: Allocated transfer risk reserve 0
Loans and lease, net of unearned income, allowance, and reserve 23,631,665
Trading assets 826,019
Premises and fixed assets (including capitalized leases) 207,597
Other real estate owned 8,798
Investments in unconsolidated subsidiaries and associated companies 0
Customers' liability to this bank on acceptances outstanding 206,526
Intangible assets 469,194
Other assets 562,433
Total assets 33,775,945
</TABLE>
1
<PAGE> 7
<TABLE>
<CAPTION>
LIABILITIES
<S> <C> <C>
Deposits:
In domestic offices 21,567,189
Noninterest-bearing 3,398,751
Interest-bearing 18,168,438
In foreign offices, Edge and Agreement subsidiaries, and IBFs 5,724,057
Noninterest-bearing 0
Interest-bearing 5,724,057
Federal funds purchased and securities sold under agreements to repurchase 813,172
Demand notes issued to the U.S. Treasury 38,576
Trading Liabilities 76,767
Other borrowed money (including mortgage indebtedness and obligations under
capitalized leases):
With a remaining maturity of one year or less 1,436,207
With a remaining maturity of more than one year through three years 275,394
With a remaining maturity of more than three years 38,610
Bank's liability on acceptances executed and outstanding 206,526
Subordinated notes and debentures 698,026
Other liabilities 527,765
Total liabilities 31,402,289
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common Stock 205,000
Surplus 1,986,362
Undivided profits and capital reserves 141,699
Net unrealized holding gains (losses) on available-for-sale securities 40,595
Cumulative foreign currency translation adjustments 0
Total equity capital 2,373,656
Total liabilities, limited-life preferred stock, and equity capital 33,775,945
</TABLE>
2
<PAGE> 1
EXHIBIT 25(b)
CONFORMED COPY
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
- --------------------------------------------------------------------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
HSBC BANK USA
(Exact name of trustee as specified in its charter)
New York 16-1057879
(Jurisdiction of incorporation (I.R.S. Employer
or organization if not a U.S. Identification No.)
national bank)
140 Broadway, New York, NY 10005-1180
(212) 658-1000 (Zip Code)
(Address of principal executive offices)
Warren L. Tischler
Senior Vice President
Marine Midland Bank
140 Broadway
New York, New York 10005-1180
Tel: (212) 658-5167
(Name, address and telephone number of agent for service)
PORTLAND GENERAL ELECTRIC COMPANY
(Exact name of obligor as specified in its charter)
Oregon 93-0256820
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
121 S.W. Salmon Street
Portland, Oregon 97204
(503) 464-8000 (Zip Code)
(Address of principal executive offices)
DEBT SECURITIES*
(Title of Indenture Securities)
*Specific title to be determined in connection with sale of Debt Securities
<PAGE> 2
General
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory authority to
which it is subject.
State of New York Banking Department.
Federal Deposit Insurance Corporation, Washington, D.C.
Board of Governors of the Federal Reserve System,
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
None
<PAGE> 3
Item 16. List of Exhibits.
<TABLE>
<CAPTION>
Exhibit
- -------
<S> <C> <C> <C>
T1A(i) * - Copy of the Organization Certificate of HSBC Bank USA
T1A(ii) * - Certificate of the State of New York Banking Department dated
December 31, 1993 as to the authority of HSBC Bank USA
to commence business.
T1A(iii) - Not applicable.
T1A(iv) * - Copy of the existing By-Laws of HSBC Bank USA as adopted on
January 20, 1994.
T1A(v) - Not applicable.
T1A(vi) * - Consent of HSBC Bank USA required by Section 321(b) of the
Trust Indenture Act of 1939.
T1A(vii) - Copy of the latest report of condition of the trustee
(December 31, 1998), published pursuant to law or the
requirement of its supervisory or examining authority.
T1A(viii) - Not applicable.
T1A(ix) - Not applicable.
* Exhibits previously filed with the Securities and Exchange Commission with
Registration No. 33-53693 and incorporated herein by reference thereto.
</TABLE>
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
HSBC Bank USA, a banking corporation and trust company organized 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 26th day of April, 1999.
HSBC BANK USA
By: /s/ James M. Foley
-------------------------------------
James M. Foley
Assistant Vice President
<PAGE> 5
EXHIBIT T1A (vii)
<TABLE>
<S> <C>
Board of Governors of the Federal Reserve System
OMB Number: 7100-0036
Federal Deposit Insurance Corporation
OMB Number: 3064-0052
Office of the Comptroller of the Currency
OMB Number: 1557-0081
FEDERAL FINANCIAL INSTITUTIONS EXAMINATION COUNCIL Expires March 31, 2000
- -----------------------------------------------------------------------------------------------------------------------------------
Please refer to page i, Table of Contents, [1]
for the required disclosure of estimated
burden.
- -----------------------------------------------------------------------------------------------------------------------------------
CONSOLIDATED REPORTS OF CONDITION AND INCOME FOR
A BANK WITH DOMESTIC AND FOREIGN OFFICES--FFIEC 031
(19980930)
----------
REPORT AT THE CLOSE OF BUSINESS DECEMBER 31, 1998 (RCRI 9999)
This report is required by law; 12 U.S.C. Section 324 (State This report form is to be filed by banks with branches and
member banks); 12 U.S.C. Section 1817 (State nonmember banks); consolidated subsidiaries in U.S. territories and possessions,
and 12 U.S.C. Section 161 (National banks). Edge or Agreement subsidiaries, foreign branches, consolidated
foreign subsidiaries, or International Banking Facilities.
NOTE: The Reports of Condition and Income must be signed by an The Reports of Condition and Income are to be prepared in
authorized officer and the Report of Condition must be attested to accordance with Federal regulatory authority instructions.
by not less than two directors (trustees) for State nonmember banks
and three directors for State member and National Banks. We, the undersigned directors (trustees), attest to the
correctness of this Report of Condition (including the
I, Gerald A. Ronning, Executive VP & Controller supporting schedules) and declare that it has been examined
by us and to the best of our knowledge and belief has been
prepared in conformance with the instructions issued by the
appropriate Federal regulatory authority and is true and
Name and Title of Officer Authorized to Sign Report correct.
of the named bank do hereby declare that these Reports of Condition
and Income (including the supporting schedules) have been prepared
in conformance with the instructions issued by the appropriate
Federal regulatory authority and are true to the best of my
knowledge and believe.
/s/ John R. H. Bond
--------------------------------------------------------------
Director (Trustee)
/s/ Gerald A. Ronning /s/ Sal H. Alfiero
- ------------------------------------------------------------------- --------------------------------------------------------------
Signature of Officer Authorized to Sign Report Director (Trustee)
/s/ Bernard J. Kennedy
--------------------------------------------------------------
1/22/99 Director (Trustee)
- -------------------------------------------------------------------
Date of Signature
SUBMISSION OF REPORTS (b) in hard-copy (paper) form and arrange for another party
Each Bank must prepare its Reports of Condition and Income either: to convert the paper report to automated form. That party
(if other than EDS) must transmit the bank's computer
data file to EDS.
(a) in automated format then file the computer data file directly To fulfill the signature and attestation requirement for the
with the banking agencies' collection agent, Electronic Data Reports of Condition and Income for this report date, attach
System Corporation (EDS), by modem or computer diskette; or this signature page to the hard-copy of the completed report
that the bank places in its files.
</TABLE>
<PAGE> 6
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the
Marine Midland Bank of Buffalo
Name of Bank City
in the state of New York, at the close of business December 31, 1998
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances currency and coin $1,262,346
Interest-bearing balances 2,301,100
Held-to-maturity securities 0
Available-for-sale securities 4,213,348
Federal funds sold and securitiesd purchased under agreements to resell 86,919
Loans and lease financing receivables:
Loans and leases net of unearned income 24,009,332
LESS: Allowance for loan and lease losses 377,667
LESS: Allocated transfer risk reserve 0
Loans and lease, net of unearned income, allowance, and reserve 23,631,665
Trading assets 826,019
Premises and fixed assets (including capitalized leases) 207,597
Other real estate owned 8,798
Investments in unconsolidated subsidiaries and associated companies 0
Customers' liability to this bank on acceptances outstanding 206,526
Intangible assets 469,194
Other assets 562,433
Total assets 33,775,945
</TABLE>
<PAGE> 7
<TABLE>
<CAPTION>
LIABILITIES
<S> <C> <C>
Deposits:
In domestic offices 21,567,189
Noninterest-bearing 3,398,751
Interest-bearing 18,168,438
In foreign offices, Edge and Agreement subsidiaries, and IBFs 5,724,057
Noninterest-bearing 0
Interest-bearing 5,724,057
Federal funds purchased and securities sold under agreements to repurchase 813,172
Demand notes issued to the U.S. Treasury 38,576
Trading Liabilities 76,767
Other borrowed money (including mortgage indebtedness and obligations under
capitalized leases):
With a remaining maturity of one year or less 1,436,207
With a remaining maturity of more than one year through three years 275,394
With a remaining maturity of more than three years 38,610
Bank's liability on acceptances executed and outstanding 206,526
Subordinated notes and debentures 698,026
Other liabilities 527,765
Total liabilities 31,402,289
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common Stock 205,000
Surplus 1,986,362
Undivided profits and capital reserves 141,699
Net unrealized holding gains (losses) on available-for-sale securities 40,595
Cumulative foreign currency translation adjustments 0
Total equity capital 2,373,656
Total liabilities, limited-life preferred stock, and equity capital 33,775,945
</TABLE>
