<PAGE>
As filed with the Securities and Exchange Commission on January 12, 1996
Registration No. 33-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PACIFIC TELECOM, INC.
(Exact name of registrant as specified in its charter)
Washington 91-0644974
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization Identification No.)
805 Broadway
P.O. Box 9901
Vancouver, Washington 98668-8701
(360) 905-5800
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
Brian M. Wirkkala
Vice President and Treasurer
805 Broadway
P.O. Box 9901
Vancouver, Washington 98668-8701
(360) 905-5800
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
It is respectfully requested that the Commission send copies of all
notices, orders and communications to:
Stoel Rives LLP Winthrop, Stimson, Putnam & Roberts
700 NE Multnomah, Suite 950 One Battery Park Plaza
Portland, Oregon 97232-4109 New York, New York 10004-1490
Attention of John M. Schweitzer Attention of C. Payson Coleman, Jr.
(503) 872-4821 (212) 858-1426
Approximate date of commencement of proposed sale of the
securities to the public: From time to time after this Registration
Statement becomes effective as determined by market conditions and other
factors.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check
the following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
---------------------------
<PAGE>
<TABLE>
<CAPTION>
Calculation of Registration Fee
Proposed
Proposed maximum
Title of each Amount maximum aggregate Amount of
class of securities to be offering price offering registration
to be registered registered(1)(2) per unit(1) price(2) fee
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities ______ ______ $200,000,000 $68,966
<FN>
(1) The amount to be registered and the proposed maximum offering price
per unit have been omitted in accordance with the Note on the cover
page of Form S-3.
(2) In no event will the aggregate principal amount of the Debt Securities
issued under this Registration Statement exceed $200,000,000.
(3) The amount of the registration fee has been calculated in accordance
with Rule 457(o) under the Securities Act of 1933.
</FN>
</TABLE>
------------------------------
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that
this Registration Statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 or until this Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE>
SUBJECT TO COMPLETION DATED JANUARY 12, 1996
PROSPECTUS
[PTI LOGO]
Debt Securities
Pacific Telecom, Inc. (the "Company") may from time to time offer its
unsecured debt securities consisting of notes, debentures or other
evidences of indebtedness (the "Debt Securities") in an aggregate principal
amount of up to U.S. $200,000,000 (or the equivalent thereof in other
currencies or composite currencies) of its unsecured debt securities
consisting of notes, debentures or other evidences of indebtedness (the
"Debt Securities"). The Debt Securities may be offered as separate series
in amounts, at prices and on terms to be determined in light of market
conditions at the time of sale and set forth in a Prospectus Supplement or
Prospectus Supplements.
The terms of each series of Debt Securities, including, where
applicable, the specific designation, aggregate principal amount,
authorized denominations and currencies, maturity or maturities, rate or
rates and time or times of payment of any interest, any terms for optional
or mandatory redemption or payment of additional amounts or any sinking
fund provisions, any initial public offering price, the proceeds to the
Company and any other specific terms in connection with the offering and
sale of such series (the "Offered Securities") will be set forth in a
Prospectus Supplement or Prospectus Supplements.
The Debt Securities may be sold directly by the Company, through
agents designated from time to time or to or through underwriters or
dealers. See "Plan of Distribution." If any agents of the Company or any
underwriters are involved in the sale of any Debt Securities in respect of
which this Prospectus is being delivered, the names of such agents or
underwriters and any applicable commissions or discounts will be set forth
in a Prospectus Supplement. The net proceeds to the Company from such sale
also will be set forth in a Prospectus Supplement or Prospectus
Supplements.
The Debt Securities may be issued only in registered form, which may,
if so designated in the applicable Prospectus Supplement or Prospectus
Supplements, be in the form of a registered global security to facilitate
the use of a "book-entry" registration and transfer system. See
"Description of Debt Securities -- Global Securities."
--------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
--------------------
This Prospectus may not be used to consummate sales of Debt Securities
unless accompanied by a Prospectus Supplement.
The date of this Prospectus is ____________, 1996
<PAGE>
FORM OF LEGEND
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any jurisdiction in which such offer, solicitation or sale
would be unlawful prior to registration or qualification under the
securities laws of any such jurisdiction. Information contained herein is
subject to completion or amendment. A registration statement relating to
these securities has been filed with the Securities and Exchange
Commission. These securities may not be sold nor may offers to buy be
accepted prior to the time the registration statement becomes effective.
This prospectus shall not constitute an offer to sell or the solicitation
of an offer to buy nor shall there be any sale of these securities in any
jurisdiction in which such offer, solicitation or sale would be unlawful
prior to registration or qualification under the securities laws of any
such jurisdiction.
<PAGE>2
IN CONNECTION WITH THIS OFFERING, UNDERWRITERS MAY OVER-ALLOT OR
EFFECT TRANSACTIONS THAT STABILIZE OR MAINTAIN THE MARKET PRICES OF THE
SECURITIES OFFERED HEREBY OR ANY OTHER DEBT SECURITIES OF THE COMPANY AT
LEVELS ABOVE THOSE THAT MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
--------------------
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the
Securities and Exchange Commission (the "Commission"). Such reports and
other information (including proxy and information statements) filed by the
Company can be inspected and copied at public reference facilities
maintained by the Commission at 450 Fifth Street, NW, Washington, D.C.
20549, and at the following Regional Offices of the Commission: New York
Regional Office, 7 World Trade Center, 13th Floor, New York, New York
10048, and Chicago Regional Office, Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661. Copies of such material can be
obtained from the Public Reference Section of the Commission at 450 Fifth
Street, NW, Washington, D.C. 20549, upon payment of the prescribed rates.
This Prospectus constitutes a part of a registration statement on Form
S-3 (together with all amendments and exhibits thereto, the "Registration
Statement") filed by the Company with the Commission under the Securities
Act of 1933, as amended (the "Securities Act"). This Prospectus does not
contain all of the information included in the Registration Statement,
certain parts of which are omitted in accordance with the rules and
regulations of the Commission. Statements contained herein concerning the
provisions of any document are qualified by reference to the copy of such
document filed as an exhibit to the Registration Statement or otherwise
filed with the Commission. Reference is made to the Registration Statement,
including the exhibits thereto, for further information with respect to the
Company and the securities offered hereby.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed by the Company with the
Commission pursuant to the Exchange Act are incorporated in this Prospectus
by reference:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1994 (as amended by Form 10-K/A dated June 30, 1995);
(b) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, June 30 and September 30, 1995; and
(c) The Company's Current Reports on Form 8-K dated February 6,
February 15, March 9, March 31, July 14, September 27, 1995 and
September 30, 1995.
<PAGE>3
All documents filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this Prospectus and prior
to the termination of this offering shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the date of
filing of such documents (such documents, and the documents enumerated
above, being hereinafter referred to as "Incorporated Documents"; provided,
however, that all documents subsequently filed by the Company pursuant to
Section 13 or 14 of the Exchange Act in each year during which the offering
made by this Prospectus is in effect prior to the filing with the
Commission of the Company's Annual Report on Form 10-K covering such year
shall not be Incorporated Documents or be incorporated by reference in this
Prospectus or be a part hereof from and after such filing of such Annual
Report on Form 10-K).
Any statement contained in an Incorporated Document shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent
that a statement contained herein or in any other subsequently filed
Incorporated Document or in any accompanying Prospectus Supplement modifies
or supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a
part of this Prospectus.
The Company hereby undertakes to provide without charge to each
person, including any beneficial owner, to whom a copy of this Prospectus
has been delivered, on the written or oral request of any such person, a
copy of any or all of the Incorporated Documents, other than exhibits to
such documents, unless such exhibits are specifically incorporated by
reference therein. Requests should be directed to Pacific Telecom, Inc.,
805 Broadway, P.O. Box 9901, Vancouver, Washington 98668-8701, Attention:
Brian M. Wirkkala, Vice President and Treasurer, telephone number (360)
696-6918. The information relating to the Company contained in this
Prospectus does not purport to be comprehensive and should be read together
with the information contained in the Incorporated Documents.
No person has been authorized to give any information or to make any
representation not contained in this Prospectus or in any Prospectus
Supplement and, if given or made, such information or representation must
not be relied upon as having been authorized. This Prospectus and any
Prospectus Supplement do not constitute an offer to sell or a solicitation
of an offer to buy any of the securities offered hereby or thereby in any
jurisdiction to any person to whom it is unlawful to make such offer in
such jurisdiction.
Neither the delivery of this Prospectus and the Prospectus Supplement
nor any sale made hereunder or thereunder shall, under any circumstances,
create any implication that there has been no change in the affairs of the
Company or its subsidiaries since the date of this Prospectus or the date
of the latest Prospectus Supplement, as the case may be.
<PAGE>4
THE COMPANY
General
The Company was organized in 1955 to provide telephone service to
suburban and rural communities principally in the Pacific Northwest. Since
that time, the Company has grown significantly through acquisitions and
expanded its service offerings in several areas within the
telecommunications industry. The Company is a holding company, and its
assets are predominantly the common stock of its majority or wholly-owned
subsidiaries. The Company currently operates one of the major non-Bell
telephone companies in the United States. Through its subsidiaries, the
Company provides local telephone service and access to the long-distance
network in Alaska, seven other western states and three midwestern states,
provides cellular mobile telephone services in nine states and is engaged
in sales of capacity in and operation of a submarine fiber optic cable
between the United States and Japan. See "Available Information" and
"Incorporation of Certain Documents by Reference" for additional
information concerning the Company's operations.
The Company is a Washington corporation. Its principal executive
offices are located at 805 Broadway, Vancouver, Washington 98668-8701, and
its telephone number is (360) 905-5800.
Relationship with PacifiCorp and Holdings
All of the common stock of the Company is owned by PacifiCorp
Holdings, Inc. ("Holdings"), a wholly-owned subsidiary of PacifiCorp.
PacifiCorp is an electric utility headquartered in Portland, Oregon that
conducts its electric utility business through Pacific Power & Light
Company and Utah Power & Light Company, and engages in power production and
sales on a wholesale basis under the name PacifiCorp. PacifiCorp is the
indirect owner through Holdings, of 100% of each of Powercor, the Company,
Pacific Generation Company ("PGC") and PacifiCorp Financial Services, Inc.
("PFS"). Powercor is an electric distribution company serving 570,000
customers in suburban Melbourne and the western and central regions of the
State of Victoria in southeast Australia. PGC is engaged in the independent
power production and cogeneration business. PFS plans to continue to
liquidate portions of its lease, leasing and real estate investments.
USE OF PROCEEDS
Unless otherwise indicated in a Prospectus Supplement, the net
proceeds to be received by the Company from the issuance and sale of the
Debt Securities will be used for general corporate purposes, including
repayment of short-term indebtedness that may be incurred from time to
time, future acquisitions and further investments in subsidiaries.
<PAGE>5
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be issued pursuant to an Indenture, dated as
of September 20, 1991, as amended and supplemented (the "Indenture"),
between the Company and The First National Bank of Chicago, as Trustee (the
"Trustee"), a copy of which is filed as an exhibit to the Registration
Statement of which this Prospectus is a part. The statements under this
caption are brief summaries of certain provisions of the Indenture, do not
purport to be complete and are subject to, and are qualified in their
entirety by reference to, all of the provisions of the Indenture, including
the definitions therein of certain terms. Section references and defined
terms used herein or in a Prospectus Supplement are references to
provisions of and defined terms in the Indenture, unless otherwise noted.
The Debt Securities may be issued from time to time in one or more
series. The particular terms of each series of Debt Securities offered by
any Prospectus Supplement or Prospectus Supplements will be described in
such Prospectus Supplement or Prospectus Supplements relating to such
series.
General
The Debt Securities offered hereby (the "Offered Securities") will be
limited to an aggregate principal amount of U.S. $200,000,000 (or the
equivalent thereof in other currencies or composite currencies). The
Indenture does not limit the aggregate amount of Debt Securities that may
be issued thereunder, and Debt Securities may be issued thereunder from
time to time in separate series up to the aggregate amount from time to
time authorized by the Company for each series. The Debt Securities will be
unsecured obligations of the Company and will rank pari passu with all
other unsecured and unsubordinated indebtedness of the Company.
The applicable Prospectus Supplement or Prospectus Supplements will
describe the following terms of the Offered Securities: (1) the title of
the Offered Securities; (2) any limit upon the aggregate principal amount
of the Offered Securities; (3) the date or dates on which the principal of
the Offered Securities is payable; (4) the rate or rates (or, if subject to
adjustment, the manner for determining such rates) at which the Offered
Securities shall bear interest, if any, the date or dates from which any
such interest shall accrue, the Interest Payment Dates on which any such
interest shall be payable, the Regular Record Dates for any interest
payable on the Interest Payment Dates and the basis upon which interest
shall be calculated if other than a year of twelve 30-day months; (5) the
place or places where, subject to the terms of the Indenture as described
below under "Payment and Paying Agents," the principal of and premium, if
any, and interest on the Offered Securities will be payable and where,
subject to the terms of the Indenture as described below under
"Denominations, Registration and Transfer," the Offered Securities may be
presented for registration of transfer or exchange and the place or places
where notices and demands to or upon the Company in respect of the Offered
Securities and the Indenture may be made; (6) the period or periods within
which, the price or prices at which and the terms and conditions upon which
Offered Securities may be redeemed, in whole or in part, at the option of
the Company; (7) the obligation, if any, of the Company to redeem,
repurchase or repay the Offered Securities pursuant to any sinking fund or
analogous provisions or at the
<PAGE>6
option of a holder thereof and the period or periods within which, the
price or prices at which and the terms and conditions upon which the
Offered Securities shall be redeemed, repurchased or repaid, in whole or in
part, pursuant to such obligation; (8) the denominations in which any
Offered Securities shall be issuable if other than denominations of $1,000
and any integral multiple thereof and the currency or composite currency in
which the Offered Securities will be denominated if other than U.S.
dollars; (9) any addition to, or modification or deletion of, any Event of
Default or any covenant of the Company specified in the Indenture with
respect to the Offered Securities; (10) any index used to determine the
amount of payments of principal of and premium, if any, on the Offered
Securities and the manner in which such amounts will be determined; (11) if
other than the principal amount thereof, the portion of the principal
amount of the Offered Securities which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to the Indenture; (12) the
dates within 15 days of which lists of Holders of Original Issue Discount
Securities are to be furnished to the Trustee pursuant to the Indenture;
(13) whether such Offered Securities may be issued in whole or in part in
the form of one or more Global Securities and, if so, the identity of the
Depositary for such Global Security or Securities; and (14) any other terms
of the Offered Securities not inconsistent with the provisions of the
Indenture.
The Debt Securities will be unsecured, general obligations of the
Company. The Debt Securities will rank equally with the Company's other
unsecured and unsubordinated indebtedness and will not, by their terms, be
subordinate in right of payment to any other indebtedness of the Company.
As the Debt Securities will be issued at the holding company level, the
Debt Securities effectively will be subordinate to all obligations of the
Company's subsidiaries, and the rights of the Company's creditors,
including holders of the Debt Securities, to participate in the assets of
such subsidiaries upon liquidation or reorganization will be junior to the
rights of the holders of all preferred stock, indebtedness and other
liabilities of such subsidiaries, which may include trade payables,
obligations to banks under credit facilities, guarantees, pledges, support
agreements, bonds, capital leases, notes and other obligations. With
respect to any such subsidiaries that are not wholly-owned by the Company,
the rights of the Company's creditors, including holders of the Debt
Securities, will also be limited to the Company's ownership interest in
such subsidiaries. See "The Company -- General."
Other than the restriction on the Company's ability to incur secured
indebtedness for borrowed money described below under "Limitation on
Liens," there are no provisions in the Indenture that afford holders of the
Debt Securities protection in the event of a highly leveraged transaction
involving the Company. The restriction on the Company's ability to incur
secured indebtedness for borrowed money contained in the Indenture may be
waived or modified only with the consent of the Holders of not less than a
majority in aggregate principal amount of the Outstanding Debt Securities
of each series affected by the waiver or modification. See "Modification
and Waiver."
Debt Securities may be issued as Original Issue Discount Securities to
be sold at a discount below their principal amount. Special United States
federal income tax considerations applicable to any Debt Securities issued
at an original issue discount,
<PAGE>7
including Original Issue Discount Securities, will be described in the
applicable Prospectus Supplement or Prospectus Supplements.
Denominations, Registration and Transfer
The Debt Securities will be issuable only in registered form without
coupons. Debt Securities of a series may be issuable in whole or in part in
the form of one or more Global Securities, as described below under "Global
Securities." One or more Global Securities will be issued in a denomination
or aggregate denominations equal to the aggregate principal amount of
Outstanding Debt Securities of the series to be represented by such Global
Security or Securities.
Debt Securities (other than Global Securities) may be presented for
exchange as provided above, and may be presented for registration of
transfer (with the form of transfer endorsed thereon duly executed) at the
office of the Security Registrar or at the office of any transfer agent
designated by the Company for such purpose with respect to any series of
Debt Securities and referred to in an applicable Prospectus Supplement,
without service charge and upon payment of any taxes and other governmental
charges as described in the Indenture. Such transfer or exchange will be
effected upon the Security Registrar or such transfer agent, as the case
may be, being satisfied with the documents of title and identity of the
person making the request. Unless otherwise indicated in a Prospectus
Supplement or changed by written notice to the Holders of any series of
Debt Securities affected thereby, the Trustee will be designated as the
sole Security Registrar with respect to the Offered Securities. (Section
305) If a Prospectus Supplement refers to any transfer agents (in addition
to the Security Registrar) initially designated by the Company with respect
to any series of Debt Securities, the Company may at any time rescind the
designation of any such transfer agent or approve a change in the location
through which any such transfer agent acts, provided that the Company
maintains a transfer agent in each Place of Payment for such series. The
Company may at any time designate additional transfer agents with respect
to any series of Debt Securities. (Section 1002)
In the event of any redemption, the Company shall not be required to
(i) issue, register the transfer of or exchange Debt Securities of any
series during a period beginning at the opening of business 15 days before
any selection of Debt Securities of that series to be redeemed and ending
at the close of business on the day of mailing of the relevant notice of
redemption or (ii) register the transfer of or exchange any Debt Security,
or portion thereof, called for redemption, except the unredeemed portion of
any Debt Security being redeemed in part. (Section 305)
Global Securities
The Debt Securities of a series may be issued in whole or in part in
the form of one or more Global Securities that will be deposited with, or
on behalf of, a depositary (the "Depositary") identified in the Prospectus
Supplement relating to such series. Unless and until it is exchanged in
whole or in part for Debt Securities in definitive form, a Global Security
may not be transferred except as a whole by the Depositary for such Global
Security to a nominee of such Depositary or by a nominee of such Depositary
to such Depositary or another nominee of such
<PAGE>8
Depositary or by such Depositary or any such nominee to a successor of such
Depositary or a nominee of such successor. (Sections 303 and 305)
The specific terms of the depositary arrangement with respect to any
Debt Securities of a series will be described in the Prospectus Supplement
or Prospectus Supplements relating to such series. The Company anticipates
that the following provisions will apply to all depositary arrangements.
So long as the Depositary for a Global Security, or its nominee, is
the owner of such Global Security, such Depositary or nominee, as the case
may be, will be considered the sole owner or holder of the Debt Securities
represented by such Global Security for all purposes under the Indenture
governing such Debt Securities; provided that with respect to a consent or
vote of a Holder, Global Securities will be voted in accordance with the
instructions of the owners of beneficial interests therein. Except as set
forth below, owners of beneficial interests in a Global Security will not
be entitled to have Debt Securities of the series represented by such
Global Security registered in their names, will not receive or be entitled
to receive physical delivery of Debt Securities of such series in
definitive form and will not be considered the owners or holders thereof
under the Indenture.
Principal, premium, if any, and interest payments on Debt Securities
registered in the name of or held by a Depositary or its nominee will be
made to the Depositary or its nominee, as the case may be, as the
registered owner or the holder of the Global Security representing such
Debt Securities. None of the Company, the Trustee for such Debt Securities,
any Paying Agent or the Security Registrar for such Debt Securities will
have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests in a
Global Security for such Debt Securities or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
(Section 308)
If a Depositary for Debt Securities of a series is at any time
unwilling or unable to continue as depositary and a successor depositary is
not appointed by the Company within 90 days, the Company will issue Debt
Securities of such series in definitive form in exchange for the Global
Security or Securities representing the Debt Securities of such series. In
addition, the Company may at any time and in its sole discretion determine
not to have any Debt Securities of a series represented by one or more
Global Securities and, in such event, will issue Debt Securities of such
series in definitive form in exchange for the Global Security or Securities
representing such Debt Securities. If there shall have occurred and be
continuing an event of default under the Indenture, as described under
"Events of Default," and the Depositary is notified by the Company, the
Trustee or the Registrar and Paying Agent that such Global Security shall
be exchangeable for definitive Notes in registered form, the Company will
issue Debt Securities of such series in definitive form in exchange for the
Global Security representing the Debt Securities of such series. Further,
if the Company so specifies with respect to the Debt Securities of a
series, an owner of a beneficial interest in a Global Security representing
Debt Securities of such series may, on terms acceptable to the Company and
the Depositary for such Global Security, receive Debt Securities of such
series in definitive form. In any such instance, an owner of a beneficial
interest in a Global Security will be entitled to physical delivery in
definitive form of Debt Securities of
<PAGE>9
the series represented by such Global Security equal in principal amount to
such beneficial interest and to have such Debt Securities registered in its
name. Debt Securities of such series so issued in definitive form will be
issued as registered securities in denominations, unless otherwise specified
by the Company, of $1,000 and integral multiples thereof.
Payment and Paying Agents
Unless otherwise indicated in an applicable Prospectus Supplement,
payment of principal of (and premium, if any) and any interest on Debt
Securities will be made at the office or offices of such Paying Agent or
Paying Agents as the Company may designate from time to time, except that,
at the option of the Company, payment of any interest may be made (i) by
check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register or (ii) by wire transfer to an
account maintained by the Person entitled thereto as specified in the
Security Register, provided that proper wire transfer instructions have
been received by the Regular Record Date. (Sections 305, 307 and 1002)
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of any installment of interest on Debt Securities (other than Defaulted
Interest) will be made to the Person in whose name such Debt Security (or
Predecessor Security) is registered at the close of business on the Regular
Record Date for such interest, except that interest payable at Maturity
will be payable to the Person entitled to the principal payment. (Section
307)
Unless otherwise indicated in an applicable Prospectus Supplement or
changed by written notice to the Holders of any series of Debt Securities
affected thereby, the Trustee, at its Corporate Trust Office in Chicago and
its office in The City of New York, will be designated as the Company's
sole Paying Agent for payments with respect to Offered Securities. The
Company may at any time designate additional Paying Agents, rescind the
designation of any Paying Agent or approve a change in the office or
offices through which any Paying Agent acts, except that the Company will
be required to maintain a Paying Agent in each Place of Payment for each
series of Debt Securities. (Section 1002)
All monies paid by the Company to a Paying Agent for the payment of
principal of (and premium, if any) or interest on any Debt Security which
remain unclaimed at the end of two years after such principal, premium or
interest shall have become due and payable will be repaid to the Company,
and the Holder of such Debt Security will thereafter look only to the
Company for payment thereof as a general unsecured creditor. (Section 1003)
Limitation on Liens
The Indenture provides that the Company may not at any time incur
secured indebtedness for borrowed money in excess of 10% of Consolidated
Net Worth (as defined below) of the Company without expressly securing
payment of the principal of and premium, if any, and interest on the Debt
Securities equally and ratably with such secured indebtedness; provided,
however, that this restriction will not apply to (1) liens on any property
or assets securing indebtedness of the Company incurred or assumed for the
purpose of financing all or any part of the cost of acquiring such
<PAGE>10
property or asset; provided, however, that such lien attaches to such property
or assets concurrently with or within 90 days after the acquisition thereof
and no such lien shall extend to or cover any other property or assets of
the Company; (2) any liens securing indebtedness upon the property or
assets of a corporation which are in existence prior to the time such
corporation is merged into or consolidated with the Company or which are in
existence on properties or assets acquired by the Company and which are not
created in contemplation of any such event, provided, however, that no such
lien shall extend to or cover any other property or assets of the Company;
(3) liens on property or related receivables, or both, to secure
nonrecourse obligations in connection with the Company's engaging in any
leveraged or single-investor or other lease, project financing or similar
transaction entered into by the Company in the ordinary course of its
business; (4) any extension, renewal or replacement (or successive
extensions, renewals or replacements, in any case, without increase in
principal amount of the indebtedness secured thereby), in whole or in part,
of any of the foregoing; provided, however, that any such extension,
renewal or replacement shall be limited to all or part of the property or
assets which secured the lien so extended, renewed or replaced (plus
improvements) and the principal amount secured thereby shall not be
increased as a result thereof. (Section 1005)
The term "Consolidated Net Worth" means, at any date, the
shareholders' equity of the Company and its consolidated subsidiaries,
determined on a consolidated basis in accordance with generally accepted
accounting principles then in effect.
Dividend Covenant
The Indenture provides that the Company may not declare or pay
dividends (other than dividends payable solely in the Company's common
stock) on, directly or indirectly purchase or otherwise acquire (except
solely by exchange of additional shares of common stock), or make any other
distributions of cash or property with respect to, any class of its common
stock or, in the case of any such purchase or acquisition, any options or
warrants to acquire its common stock ("Restricted Payments") if the
aggregate of all Restricted Payments made after August 31, 1989 would
exceed the sum of (i) $150,000,000 plus (ii) 80% of the cumulative
consolidated net income of the Company after January 1, 1989 (minus 100% of
the cumulative consolidated net losses during such period) plus (iii) the
amount of any net proceeds to the Company from the sale of its common and
preferred stock, equity contributions to its capital and other
contributions to its capital from the conversion or exercise of securities
to or for its equity securities, in each case subsequent to January 1,
1989. (Section 1006)
Defeasance
The Company may discharge its indebtedness and its obligations or
certain of its obligations under the Indenture with respect to any series
of Debt Securities by depositing funds or U.S. Government Obligations with
the Trustee.
<PAGE>11
Defeasance and Discharge. The Indenture provides that the Company will
be discharged from certain obligations in respect of the Debt Securities of
any series (not including obligations relating to payment thereof in
accordance with their terms, exchange of Debt Securities, registration of
the transfer of or exchange of Debt Securities of such series, replacement
of stolen, lost or mutilated Debt Securities of such series and maintenance
of paying agencies) upon the deposit with the Trustee, in trust, of money
and/or U.S. Government Obligations which, through the payment of interest
and principal in respect thereof in accordance with their terms, will
provide money in an amount sufficient to pay the principal of (and premium,
if any), each installment of interest on and any sinking fund payments on
the Debt Securities of such series on the Stated Maturity of such payments
in accordance with the terms of the Indenture and the Debt Securities of
such series. Such a trust may only be established if, among other things,
(a) the Company has paid or caused to be paid all other sums payable with
respect to the Debt Securities of such series; (b) such deposit will not
result in a breach or violation of, or constitute a default under, the
Indenture or any other agreement or instrument to which the Company is a
party or by which it is bound; (c) no Event of Default or event which, with
the giving of notice or lapse of time, or both, would become an Event of
Default with respect to the Debt Securities of such series shall have
occurred and be continuing on the date of such deposit; (d) the Debt
Securities of such series, if then listed on any national securities
exchange, will not be delisted as a result of such deposit, defeasance and
discharge; and (e) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel as to certain matters. In addition to
discharging certain obligations under the Indenture as stated above, if the
Company delivers to the Trustee an Opinion of Counsel to the effect that
(a) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (b) since the date of the Indenture
there has been a change in applicable federal income tax law, in either
case to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders of Debt Securities of such series will not
recognize income, gain or loss for federal income tax purposes as a result
of such deposit, defeasance and discharge and will be subject to federal
income tax on the same amount and in the same manner and at the same times,
as would have been the case if such deposit, defeasance and discharge had
not occurred, then, in such event, the obligation of the Company to duly
and punctually pay or cause to be paid the principal of (and premium, if
any) and interest on the Debt Securities of such series shall cease,
terminate and be completely discharged. In the event of any such defeasance
and discharge of Debt Securities of such series, Holders of Debt Securities
of such series would be able to look only to such trust fund for payment of
principal of (and premium, if any) and interest, if any, on their Debt
Securities. (Section 403)
Events of Default
Any of the following events will constitute an Event of Default under
the Indenture with respect to Debt Securities of any series: (a) failure to
pay any interest on any Debt Security of that series when due, and such
failure shall continue for 30 days; (b) failure to pay principal of or any
premium on any Debt Security of that series when due; (c) failure to
deposit any sinking fund payment, when due, in respect of any Debt Security
of that series; (d) failure to perform any other covenant of the Company in
the Indenture (other than a covenant included in the Indenture solely for
the benefit of series of Debt Securities other than that series), continued
<PAGE>12
for 30 days after written notice as provided in the Indenture; (e) default
resulting in the acceleration of the maturity of, or default in the payment
of, any other indebtedness of the Company in an aggregate amount in excess
of $5,000,000 and the failure by the Company to obtain rescission or
annulment of all such accelerations or to discharge all such defaulted
indebtedness within 10 days after notice thereof to the Company by the
Trustee or the Holders of at least 25% in principal amount of the Debt
Securities; (f) certain events in bankruptcy, insolvency or reorganization
involving the Company; and (g) any other Event of Default provided with
respect to Debt Securities of that series. (Section 501)
If an Event of Default with respect to Debt Securities of any series
at the time Outstanding occurs and is continuing, either the Trustee or the
Holders of at least 25% in aggregate principal amount of the Outstanding
Debt Securities of that series, by notice as provided in the Indenture, may
declare the principal amount (or, if the Debt 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 the Debt Securities of
that series and the accrued interest thereon, if any, to be due and payable
immediately. At any time after a declaration of acceleration with respect
to Debt Securities of any series has been made, but before a judgment or
decree for payment of money has been obtained by the Trustee, the Holders
of a majority in aggregate principal amount of the Outstanding Debt
Securities of that series may, under certain circumstances, including the
Company's payment or deposit with the Trustee of all overdue amounts (other
than amounts due solely as a result of such acceleration), rescind and
annul such acceleration. (Section 502)
The Indenture provides that the Trustee shall transmit notice, as
provided in the Indenture, of any default with respect to the Debt
Securities of any series unless (a) such default has been cured or waived
or (b) such default does not constitute a payment default with respect to
such series and the board of directors, the executive committee or a trust
committee of directors of the Trustee and/or Responsible Officers in good
faith determine that the withholding of such notice is in the interest of
the Holders of Securities of such series. (Section 602)
The Indenture provides that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be
under no obligation to exercise any of its rights or powers under the
Indenture at the request or direction of any of the Holders, unless such
Holders shall have offered to the Trustee reasonable security or indemnity.
(Sections 601 and 603) Subject to such provisions for the indemnification
of the Trustee, the Holders of a majority in aggregate principal amount of
the Outstanding Debt Securities of any series will have the right to direct
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Debt Securities of that series, unless the
Trustee shall determine that the action specified would be in conflict with
any rule of law or the Indenture, involve the Trustee in personal liability
which has not been indemnified or be unduly prejudicial to the interests of
the Holders of the Debt Securities not joining in such direction. (Section
512)
<PAGE>13
The Company will be required to furnish to the Trustee annually a
statement as to the performance by the Company of certain of its
obligations under the Indenture and as to any default in such performance.
(Section 704)
Modification and Waiver
Modifications and amendments of the Indenture may be made by the
Company and the Trustee with the consent of the Holders of not less than a
majority in aggregate principal amount of the Outstanding Debt Securities
of each series affected by such modification or amendment; provided,
however, that no such modification or amendment may, without the consent of
the Holder of each Outstanding Debt Security affected thereby, (a) change
the Stated Maturity of the principal of, or any installment of principal of
or interest on, any Debt Security; (b) reduce the principal amount of, or
premium or interest, if any, on, any Debt Security; (c) reduce the amount
of principal of an Original Issue Discount Security payable upon
acceleration of the maturity thereof; (d) reduce any premium payable upon
redemption; (e) waive any default in the payment of the principal of or
interest on any Debt Security; (f) change the coin or currency in which any
Debt Security or any premium or interest thereon is payable; (g) impair the
right to institute suit for the enforcement of any payment on or with
respect to any Debt Security; (h) reduce the percentage in principal amount
of Outstanding Debt Securities of any series, the consent of whose Holders
is required for modification or amendment of the Indenture or for waiver of
compliance with certain provisions of the Indenture or for waiver of
certain defaults; (i) change any obligation of the Company to maintain an
office or agency in the places and for the purposes required by the
Indenture; or (j) modify any of the above provisions or the provisions set
forth in the paragraph below, except to increase the foregoing percentage.
(Sections 508 and 902)
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Debt Securities of each series may, on behalf of the
Holders of all the Debt Securities of that series, waive, insofar as that
series is concerned, compliance by the Company with certain restrictive
provisions of the Indenture. (Section 1008) The Holders of not less than a
majority in aggregate principal amount of the Outstanding Debt Securities
of each series may, on behalf of all Holders of Debt Securities of that
series, waive any past default under the Indenture with respect to Debt
Securities of that series, except a default (a) in the payment of principal
of (or premium, if any) or interest on any security of such series or (b)
in respect of a covenant or provision of the Indenture which cannot be
modified or amended without the consent of the Holder of each Outstanding
Debt Security of such series affected. (Section 513)
Consolidation, Merger and Sale of Assets
The Company, without the consent of the Holders of any of the
Outstanding Debt Securities under the Indenture, may consolidate or merge
with or into, or convey, transfer or lease all or substantially all of its
property or assets to, any entity organized under the laws of any domestic
jurisdiction, or may permit any Person to consolidate with or merge into
the Company or convey, transfer or lease all or substantially all of its
properties and assets to the Company; provided that, in the case of a
consolidation or a merger of the Company into any other Person or the
<PAGE>14
conveyance, transfer or lease of all or substantially all of the property
and assets of the Company to any other Person, any successor, transferee or
lessee expressly assumes the Company's obligations on the Debt Securities
and under the Indenture, after giving effect to the transaction no Event of
Default shall have occurred and be continuing and the Company delivers to
the Trustee an Officer's Certificate and an Opinion of Counsel to the
effect that such consolidation, merger, conveyance, transfer or lease
complies with the provisions of the Indenture and certain other conditions
are met. (Section 801)
Notices
Except as otherwise provided in the Indenture, notices to Holders of
Debt Securities will be given by mail to the addresses of such Holders as
they appear in the Security Register. (Sections 101 and 106)
Replacement of Debt Securities
Any mutilated Debt Security may be replaced by the Company at its
discretion at the expense of the Holder upon surrender of such Debt
Security to the Trustee. Debt Securities that become destroyed, stolen or
lost may be replaced by the Company at the expense of the Holder upon
delivery to the Trustee of the Debt Security or evidence of the
destruction, loss or theft thereof satisfactory to the Company and the
Trustee. In the case of a destroyed, lost or stolen Debt Security, an
indemnity satisfactory to the Trustee and the Company may be required at
the expense of the Holder of such Debt Security before a replacement Debt
Security will be issued. (Section 306)
Regarding the Trustee
The Company and affiliates of the Company maintain banking
relationships in the ordinary course of business with the Trustee.
PLAN OF DISTRIBUTION
The Company may sell Debt Securities in any of the following ways: (i)
through underwriters or dealers; (ii) directly to a limited number of
purchasers or to a single purchaser; or (iii) through agents. The
Prospectus Supplement with respect to any Offered Securities will set forth
the terms of the offering of such Offered Securities, including the name or
names of any underwriters, dealers or agents, the purchase price of such
Offered Securities and the proceeds to the Company from such sale, 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.
If underwriters are involved in the sale of any Offered Securities,
such Offered Securities will be acquired by the underwriters for their own
account and may be resold from time to time in one or more transactions,
including negotiated
<PAGE>15
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The underwriter or underwriters with respect to a
particular underwritten offering of Offered Securities will be named in the
Prospectus Supplement relating to such offering and, if an underwriting
syndicate is used, the managing underwriter or underwriters will be set
forth on the cover page of such Prospectus Supplement. Unless otherwise set
forth in such Prospectus Supplement, the obligations of the underwriters to
purchase the Offered Securities will be subject to certain conditions
precedent, and the underwriters will be obligated to purchase all such Offered
Securities if any are purchased.
If a dealer is used in the sale of any Offered Securities, the Company
will sell such Offered Securities to the dealer, as principal. The dealer
may then resell such Offered Securities to the public at varying prices to
be determined by such dealer at the time of resale. The name of any dealer
involved in a particular offering of Offered Securities and any discounts
or concessions allowed or reallowed or paid to the dealer will be set forth
in the Prospectus Supplement relating to such offering.
Offered Securities may be sold directly by the Company or through
agents designated by the Company from time to time. Any such agent, who may
be deemed to be an underwriter as that term is defined in the Securities
Act, involved in the offer or sale of any of the Offered Securities will be
named, and any commissions payable by the Company to such agent will be set
forth, in the Prospectus Supplement relating to such Offered Securities.
Unless otherwise indicated in such Prospectus Supplement, any such agent
will be acting on a reasonable best efforts basis for the period of its
appointment.
Underwriters, dealers and agents participating in the distribution of
the Offered Securities may be deemed to be "underwriters" within the
meaning of, and any discounts and commissions received by them and any
profit realized by them on resale of such Offered Securities may be deemed
to be underwriting discounts and commissions under, the Securities Act.
Underwriters, dealers and agents may be entitled, under agreements with the
Company, to indemnification against or contribution toward certain civil
liabilities, including certain liabilities under the Securities Act, and to
reimbursement by the Company for certain expenses.
If so indicated in an applicable Prospectus Supplement, the Company
will authorize dealers acting as the Company's agents to solicit offers by
certain institutions to purchase Offered Securities from the Company at the
public offering price set forth in such Prospectus Supplement pursuant to
delayed delivery contracts ("Contracts") providing for payment and delivery
on the date or dates stated in such Prospectus Supplement. Each Contract
will be for an amount not less than, and the aggregate principal amount of
Offered Securities sold pursuant to Contracts shall be not less nor more
than, the respective amounts stated in such Prospectus Supplement.
Institutions with whom Contracts, when authorized, may be made include
commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions and other
institutions, but will in all cases be subject to the approval of the
Company. Contracts will not be subject to any conditions except (i) the
purchase by an institution of the Offered Securities covered by its
Contracts shall not at the time of delivery be prohibited under the laws of
any jurisdiction in the United States to which such institution is subject,
and (ii) if the Offered Securities are being sold to underwriters, the
Company shall have sold to such underwriters the total principal amount of
the Offered Securities less the principal amount thereof covered by
Contracts. Agents and underwriters will have no responsibility in respect
of the delivery or performance of Contracts.
<PAGE>16
Certain of the underwriters or agents and their associates may be
customers of, engage in transactions with and perform services for the
Company and its affiliates in the ordinary course of business.
The Company will indicate in a Prospectus Supplement the extent to
which it anticipates that a secondary market for the Offered Securities
will be available.
Subject to certain conditions, the Company may agree to indemnify the
several underwriters, agents or dealers and their controlling persons
against certain civil liabilities, including certain liabilities under the
Securities Act, or to contribute to payments any such person may be
required to make in respect thereof. Agents, underwriters and dealers may
engage in transactions with or perform services for the Company and its
subsidiaries in the ordinary course of business.
RATIOS OF EARNINGS TO FIXED CHARGES
The ratios of earnings to fixed charges for the years ended December
31, 1990 through 1994 and for the nine months ended September 30, 1995,
calculated as required by the Commission, are 3.9x, 2.8x, 2.6x, 2.4x, 3.5x
and 4.9x, respectively. For the purpose of computing such ratios,
"earnings" represents the aggregate of (a) income from continuing
operations before income taxes, (b) fixed charges, (c) equity losses of
less than 50 percent owned subsidiaries, and (d) minority interest. "Fixed
charges" consist of interest charges and an estimated amount representing
the interest portion of rental expense.
LEGAL MATTERS
The validity of the Offered Securities will be passed upon for the
Company by Stoel Rives LLP, counsel to the Company, 700 NE Multnomah, Suite
950, Portland, Oregon 97232, and for any underwriters, dealers or agents by
Winthrop, Stimson, Putnam & Roberts, One Battery Park Plaza, New York, New
York 10004. Winthrop, Stimson, Putnam & Roberts may rely on the opinion of
Stoel Rives LLP as to matters of Washington law. John M. Schweitzer and
John Detjens III, who are assistant secretaries of PacifiCorp, are partners
in the firm of Stoel Rives LLP.
EXPERTS
The consolidated financial statements of the Company and subsidiaries
and supplemental schedules incorporated by reference in this Prospectus
have been audited by Deloitte & Touche LLP, independent auditors, as stated
in their reports included in or incorporated by reference in the Company's
Annual Report on Form 10-K incorporated by reference herein, and have been
so incorporated herein in reliance upon such reports given upon the
authority of that firm as experts in accounting and auditing.
<PAGE>17
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Registration fee .................................... $ 68,966
*Counsel fees ....................................... 50,000
*Accountants' fees .................................. 10,000
*Trustee fees ....................................... 3,000
*Rating agency fees ................................. 90,000
*Blue sky expenses .................................. 7,500
*Printing and delivery of registration statement,
prospectus, certificates, etc ....................... 25,000
*Miscellaneous expenses ............................. 10,534
--------
Total ............................................... $265,000
- ------------------------
* Estimated
Item 15. Indemnification of Directors and Officers.
The Company's Bylaws, as amended (Bylaws), require the Company to
indemnify directors and officers to the fullest extent not prohibited by
law. The right to and amount of indemnification ultimately will be subject
to determination by a court that indemnification in the circumstances
presented is consistent with public policy considerations and other
provisions of law. It is likely, however, that the Bylaws would require
indemnification at least to the extent that indemnification is authorized
by the Washington Business Corporation Act (WBCA). The effect of the WBCA
is summarized as follows:
(a) The WBCA permits the Company to grant a right of
indemnification in respect of any pending, threatened or completed
action, suit or proceeding, other than an action by or in the right of
the Company, against expenses (including attorneys' fees), judgments,
penalties, fines and amounts paid in settlement actually and
reasonably incurred, provided the person concerned acted in good faith
and in a manner the person reasonably believed to be, in the case of
conduct in his or her own official capacity with the Company, in the
best interests of the Company and, in all other cases, at least not
opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his
or her conduct was unlawful.
(b) The WBCA permits the Company to grant a right of
indemnification in respect of any proceeding by or in the right of the
Company against the reasonable expenses (including attorneys' fees)
incurred if the person concerned acted in good faith and in a manner
the person reasonably believed to be, in the case of conduct in his or
her own official capacity with the Company, in the best interests of
the Company and, in all other cases, at least not opposed to the best
interests of the Company, except that no indemnification may be
granted if such person is adjudged to be liable to the Company unless
permitted by a court.
(c) Indemnification is not permitted in connection with a
proceeding in which a person is adjudged liable on the basis that
personal benefit was improperly received, unless indemnification is
permitted by a court upon a finding that the person is fairly and
reasonably entitled to indemnification in view of all of the relevant
circumstances, except that indemnification with respect to such
proceeding shall be limited to expenses. The termination of a
proceeding by judgment, order, settlement, conviction or upon a plea
of nolo contendere or its equivalent is not, of itself, determinative
that the person did not meet the prescribed standard of conduct.
(d) Under the WBCA, the Company may not indemnify a person in
respect of a proceeding described in (a) or (b) above unless it is
determined in the specific case that indemnification is permissible
because the person has met the prescribed standard of conduct by any
one of the following: (i) the Board of Directors, by a majority vote
of a quorum consisting of directors not at the time parties to the
proceeding, (ii) if a quorum of directors not parties to the
proceeding cannot be obtained, by a majority vote of a committee of
two or more directors not at the time parties to the proceeding, (iii)
by special legal counsel selected by the Board of Directors or the
committee thereof, as described in (i) and (ii) above, or (iv) by the
shareholders, but shares owned by or voted under the control of
directors who are at the time parties to the proceeding may not be
voted on the determination. Indemnification can also be ordered by a
court if the court determines that indemnification is fair in view of
all of the relevant circumstances. Notwithstanding the foregoing,
every person who has been wholly successful, on the merits or
otherwise, in defense of a proceeding described in (a) or (b) above is
entitled to be indemnified as a matter of right against reasonable
expenses incurred in connection with the proceeding.
(e) Under the WBCA, the Company may pay for or reimburse the
reasonable expenses incurred in defending a proceeding in advance of
the final disposition thereof if the director or officer receiving the
advance furnishes (i) written affirmation of the director's or
officer's good faith belief that he or she has met the prescribed
standard of conduct, and (ii) a written undertaking to repay the
advance in the event indemnification is not authorized.
(f) A report of any indemnification shall be provided to
shareholders along with notice of the next shareholders' meeting or
prior to such notice.
The rights of indemnification described above are not exclusive
of any other rights of indemnification to which officers or directors
may be entitled under any statute, agreement, vote of shareholders,
action of directors
<PAGE>18
or otherwise. Indemnity agreements entered into by the Company require
the Company to indemnify the directors and officers who are parties
thereto to the fullest extent permitted by law and are intended to
create an obligation to indemnify to the fullest extent a court may
find to be consistent with public policy considerations.
The Company has directors' and officers' liability insurance
coverage which insures directors and officers of the Company and its
subsidiaries against certain liabilities.
Item 16. Exhibits.
1 Form of Selling Agency Agreement.
4(a) Indenture between the Company and The First National Bank of Chicago,
as Trustee, dated as of September 20, 1991. Incorporated by reference
to Exhibit 4-A to Registration Statement on Form S-3, Registration No.
33-42577.
4(b) Form of Certificate of Authorized Officer to be used in connection
with the issuance of the Debt Securities.
4(c) Form of Debt Securities (included in Exhibits 4(a) and (b)).
5 Opinion of Stoel Rives LLP.
12 Statement re Computation of Ratios. Incorporated by reference to
Exhibit 12 to Quarterly Report on Form 10-Q for the quarter ended
September 30, 1995, File No. 0-873.
23(a) Consent of Independent Public Accountants.
23(b) Consent of Stoel Rives LLP (included in Exhibit 5).
24 Powers of Attorney.
25 Statement of Eligibility of Trustee.
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the registration statement is on Form S-3, Form
S-8 or Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of
an employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions described
under Item 15, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of
<PAGE>19
expenses incurred or paid by a director, officer or controlling person of
the registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection
with the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as expressed in
the Securities Act of 1933 and will be governed by the final adjudication
of such issue.
<PAGE>20
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Vancouver, State of Washington,
on January 12, 1996.
PACIFIC TELECOM, INC.
By: BRIAN M. WIRKKALA
------------------------------------
Brian M. Wirkkala
Vice President and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been duly signed by the following persons on
January 12, 1996 in the capacities indicated.
Signature Title
--------- -----
CHARLES E. ROBINSON
- --------------------------------------- Chairman, President, Chief Executive
Charles E. Robinson Officer and Director
JAMES H. HUESGEN
- --------------------------------------- Executive Vice President and Chief
James H. Huesgen Financial Officer
DONALD A. BLOODWORTH
- --------------------------------------- Vice President, Revenue Requirements
Donald A. Bloodworth and Controller
JOYCE E. GALLEHER
- --------------------------------------- Director
Joyce E. Galleher
MICHAEL C. HENDERSON
- --------------------------------------- Director
Michael C. Henderson
ROY M. HUHNDORF
- --------------------------------------- Director
Roy M. Huhndorf
NOLAN E. KARRAS
- --------------------------------------- Director
Nolan E. Karras
PAUL G. LORENZINI
- --------------------------------------- Director
Paul G. Lorenzini
DONALD L. MELLISH
- --------------------------------------- Director
Donald L. Mellish
SIDNEY R. SNYDER
- --------------------------------------- Director
Sidney R. Snyder
VERL R. TOPHAM
- --------------------------------------- Director
Verl R. Topham
NANCY WILGENBUSCH
- --------------------------------------- Director
Nancy Wilgenbusch
*By BRIAN M. WIRKKALA
----------------------------------
Brian M. Wirkkala
(Attorney-in-Fact)
<PAGE>21
EXHIBIT INDEX
Exhibit Sequential
No. Description Page No.
- ------- ----------- ----------
1 Form of Selling Agency Agreement.
4(a) Indenture between the Company and The First
National Bank of Chicago, as Trustee, dated as of
September 20, 1991. Incorporated by reference to
Exhibit 4-A to Registration Statement on Form S-3,
Registration No. 33-42577.
4(b) Form of Certificate of Authorized Officer to be
used in connection with the issuance of the Debt
Securities.
4(c) Form of Debt Securities (included in Exhibits 4(a)
and (b)).
5 Opinion of Stoel Rives LLP.
12 Statement re Computation of Ratios. Incorporated
by reference to Exhibit 12 to Quarterly Report on
Form 10-Q for the quarter ended September 30,
1995, File No. 0-873.
23(a) Consent of Independent Public Accountants.
23(b) Consent of Stoel Rives LLP (included in Exhibit
5).
24 Powers of Attorney.
25 Statement of Eligibility of Trustee.
<PAGE>
DRAFT
WSP&R
1/10/96
PACIFIC TELECOM, INC.
U.S. $200,000,000
Medium-Term Notes, Series C
Due Nine Months or More
From Date of Issue
Selling Agency Agreement
------------------------
Dated [_____], 1996
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Merrill Lynch & Co.,
Merrill Lynch, Pierce,
Fenner & Smith Incorporated
World Financial Center, North Tower
New York, New York 10281
Ladies and Gentlemen:
Pacific Telecom, Inc., a Washington corporation (the "Company"),
confirms its agreement with each of you with respect to the issue and sale
by the Company of up to U.S. $200,000,000 (or the equivalent thereof in
other currencies) aggregate principal amount of its
<PAGE>2
Medium-Term Notes, Series C (the "Notes"). The Notes will be offered at
varying maturities of nine months or more from their dates of issue. The
Notes will be issued under an Indenture dated as of September 20, 1991, as
amended and supplemented, between The First National Bank of Chicago, as
trustee (the "Trustee"), and the Company (the "Indenture"). The Notes will
be issued in minimum denominations of U.S. $1,000 and in denominations
exceeding such amount by integral multiples of U.S. $1,000, will be issued
only in fully registered form and will have the annual interest rates,
maturities and, if appropriate, other terms set forth in a supplement to
the Prospectus (as defined in Section 1(i) hereof). The Notes will be
issued, and the terms thereof established, in accordance with the Indenture
and, in the case of Notes sold pursuant to Section 2(a) hereof, the
Medium-Term Notes Administrative Procedures attached as Exhibit A hereto
(the "Procedures"). The Procedures may only be amended by written agreement
of the Company and you after notice to, and with the approval of, the
Trustee. If the Company determines that it shall offer Notes denominated in
a foreign currency or currency unit, the Company and you agree that an
amendment to the Procedures (which shall be substantially in the form of
Exhibit B hereto) shall be entered into that shall contain modifications
mutually acceptable to the Company and you. For the purposes of this
Agreement, the term "Agent" shall mean any of you acting solely in the
capacity as agent for the Company pursuant to Section 2(a) hereof and not
as principal (collectively, the "Agents"), the term "Purchaser" shall mean
any one of you acting solely as principal pursuant to Section 2(b) hereof
and not as agent, and the term "you" shall mean you collectively whether or
not at any time any of you is acting in both such capacities or in either
such capacity.
Section 1. Representations and Warranties. The Company represents
and warrants to, and agrees with, you as set forth below in this Section 1.
Certain terms used in this Section 1 are defined in paragraph (i) hereof.
(a) The Company meets the requirements for use of Form S-3 under
the Securities Act of 1933, as amended (the "Act"), and has filed with
the Securities and Exchange Commission (the "Commission") a
registration statement on such Form (File Number: 33-[_____]),
including a prospectus, which has become effective, for the
registration under the Act of U.S. $200,000,000 aggregate principal
amount of debt securities (the "Securities"), including the Notes.
Such registration statement, as amended at the date of this Agreement,
meets the requirements set forth in paragraph (a)(1)(ix) or (a)(1)(x)
of Rule 415 and complies in all other material respects with Rule 415.
The Company has included in such registration statement, or has filed
or will file with the Commission pursuant to the applicable paragraph
of Rule 424(b), a supplement to the form of prospectus included in
such registration statement relating to the Notes and the plan of
distribution thereof (the "Prospectus Supplement"). In connection with
the sale of Notes, the Company proposes to file with the Commission
pursuant to the applicable paragraph of Rule 424(b) further amendments
or supplements to the Prospectus Supplement specifying the interest
rates, maturity dates and, if appropriate, other terms of the Notes
sold pursuant hereto or describing the offering thereof (each such
amendment or supplement, a "Pricing Supplement").
<PAGE>3
(b) On the Effective Date, as of the Execution Time, when any
supplement to the Prospectus is filed with the Commission, as of the
date of any Terms Agreement (as defined in Section 2(b) hereof) and at
the date of delivery by the Company to you of any Notes sold hereunder
(a "Closing Date"), (i) the Registration Statement, as amended as of
any such time, and the Prospectus, as supplemented as of any such
time, and the Indenture did, does and will, as the case may be, comply
in all material respects with the requirements of the Act, the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
the respective rules thereunder; (ii) the Registration Statement, as
amended as of any such time, did not, does not and will not, as the
case may be, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and (iii) the
Prospectus, as supplemented as of any such time, did not, does not and
will not, as the case may be, include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to (A) that part of
the Registration Statement that shall constitute the Statement of
Eligibility on Form T-1 under the Trust Indenture Act of the Trustee
or (B) the information contained in or omitted from the Registration
Statement or the Prospectus (or any amendment or supplement thereto)
in reliance upon and in conformity with information furnished in
writing to the Company by any of you specifically for inclusion in the
Registration Statement or the Prospectus (or any amendment or
supplement thereto).
(c) As of the time any Notes are issued and sold hereunder, the
Indenture will constitute a legal, valid and binding instrument of the
Company enforceable against the Company in accordance with its terms,
except as limited by bankruptcy, insolvency, reorganization or other
laws affecting the enforcement of creditors' rights generally or by
equitable principles affecting the availability of remedies, and such
Notes will have been duly authorized, executed, authenticated and,
when paid for by the purchasers thereof, will constitute legal, valid
and binding obligations of the Company entitled to the benefits of the
Indenture, except as limited by bankruptcy, insolvency, reorganization
or other laws affecting the enforcement of creditors' rights generally
or by equitable principles affecting the availability of remedies.
(d) The financial statements included or incorporated by
reference in the Prospectus present fairly the financial condition and
operations of the Company at the respective dates or for the
respective periods to which they apply; such financial statements have
been prepared in each case in accordance with generally accepted
accounting principles consistently applied throughout the periods
involved except as otherwise indicated in the Prospectus; and Deloitte
& Touche LLP, who examined the audited financial statements, are
independent public accountants as required by the Act and the rules
thereunder.
<PAGE>4
(e) Except as reflected in, or contemplated by, the Registration
Statement and the Prospectus, as they may be amended or supplemented,
since the respective most recent dates as of which information is
given in the Registration Statement and the Prospectus, as so amended
or supplemented, there has not been any material adverse change in the
business, affairs, business prospects, property or financial condition
of the Company, whether or not arising in the ordinary course of
business, and since such dates there has not been any material
transaction entered into by the Company other than transactions
contemplated by the Registration Statement and the Prospectus, as so
amended or supplemented, and transactions in the ordinary course of
business; and the Company has no material contingent obligation that
is not disclosed in the Registration Statement and the Prospectus, as
they may be amended or supplemented.
(f) The Company is not in violation of its Restated Articles of
Incorporation, as amended, or Bylaws, as amended, or in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, agreement or other
instrument to which it is a party or by which it may be bound, the
effect of which, singly or in the aggregate, is material to the
Company, and neither the execution or delivery of this Agreement or
any Terms Agreement, the consummation of the transactions herein or
therein contemplated, the fulfillment of the terms hereof or thereof,
nor compliance with the terms and provisions hereof or thereof will
conflict with, or result in a breach of, or constitute a default under
(i) such Restated Articles of Incorporation or Bylaws, or any
contract, agreement or other instrument to which the Company is a
party or by which it may be bound or (ii) any order, rule or
regulation applicable to the Company of any court or any federal or
state governmental body having jurisdiction over the Company or over
its properties, the effect of which, singly or in the aggregate, is
material to the Company.
(g) This Agreement has been, and any Terms Agreement will be,
duly authorized, executed and delivered by the Company and this
Agreement is, and any such Terms Agreement will be, a legal, valid and
binding agreement of the Company enforceable against the Company,
except as limited by bankruptcy, insolvency, reorganization or other
laws affecting the enforcement of creditors' rights generally or by
equitable principles affecting the availability of remedies and
subject to any principles of public policy limiting the right to
enforce the indemnification and contribution provisions contained
herein.
(h) The statements made in the Prospectus within the coverage of
Rule 175(b) under the Act were made by the Company with a reasonable
basis and in good faith.
(i) The terms that follow, when used in this Agreement, shall
have the meanings indicated: "Effective Date" shall mean, at any time,
the later of (i) the date that the Registration Statement or any post-
effective amendment or amendments thereto became or become effective
(the "Initial Effective Date") and (ii) the date that the Company's
Annual Report on Form 10-K for its most recently completed fiscal year
was
<PAGE>5
or is filed with the Commission under the Exchange Act, in each
case at such time; "Execution Time" shall mean the date and time that
this Agreement is executed and delivered by the Company and the
Agents; "Basic Prospectus" shall mean the form of prospectus relating
to the Securities contained in the Registration Statement at the
Effective Date; "Prospectus" shall mean the Basic Prospectus as
amended or supplemented, including by the Prospectus Supplement or any
Pricing Supplement; "Registration Statement" shall mean the
registration statement referred to in paragraph (a) above, including
exhibits and financial statements thereto, as amended at the Execution
Time; and "Rule 415" and "Rule 424(b)" shall mean such rules under the
Act. Any reference herein to the Registration Statement, the Basic
Prospectus, the Prospectus Supplement or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act that were filed
under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Prospectus; and any
reference herein to the terms "amend," "amended," "amendment" or
"supplement" or "supplemented" with respect to the Registration
Statement, the Basic Prospectus, the Prospectus Supplement or the
Prospectus shall be deemed to refer to and include any document filed
under the Exchange Act after, in the case of the Registration
Statement, the Initial Effective Date and, in the case of the
Prospectus, the issue date thereof and deemed to be incorporated
therein by reference pursuant to Item 12 of Form S-3 under the Act
(together with such documents filed on or before the Effective Date or
issue date, as the case may be, "Incorporated Documents").
Section 2. Solicitations as Agent; Purchases as Principal.
(a) Appointment of Agents; Solicitation by the Agents of Offers
to Purchase. Subject to the terms and conditions set forth herein, the
Company hereby authorizes each of the Agents to act as its agent to solicit
offers for the purchase of all or part of the Notes from the Company.
On the basis of the representations and warranties and subject to
the terms and conditions set forth herein, each of the Agents agrees, as
agent of the Company, to use its reasonable best efforts to solicit offers
to purchase the Notes from the Company upon the terms and conditions set
forth in the Prospectus (and any amendment or supplement thereto) and in
the Procedures. In soliciting offers as agents, each Agent is acting
individually, and not jointly, solely as agent of the Company and not as
principal. Each Agent shall use its reasonable best efforts to assist the
Company in obtaining performance by each purchaser whose offer to purchase
Notes has been solicited by such Agent and accepted by the Company, but
such Agent shall not, except as otherwise provided in this Agreement, have
any liability to the Company in the event any such purchase is not
consummated for any reason. Except as provided in Section 2(b) hereof,
under no circumstances will any Agent be obligated to purchase any Notes
for its own account. It is understood and agreed, however, that any Agent
may purchase Notes for its own account as Purchaser pursuant to Section
2(b) hereof or otherwise.
<PAGE>6
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase the Notes. Upon receipt
of instructions from the Company, the Agents will forthwith suspend
solicitation of offers to purchase Notes from the Company until such time
as the Company has advised them that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, on the Closing
Date with respect to each sale of Notes by the Company as a result of a
solicitation made by such Agent, in an amount equal to that percentage
specified in Schedule I hereto of the aggregate principal amount of such
Notes sold by the Company. Such commission shall be payable as specified in
the Procedures.
Subject to the provisions of this Section 2(a) and to the
Procedures, offers for the purchase of Notes may be solicited by an Agent
as agent of the Company at such time and in such amounts as such Agent
deems advisable. The Company may from time to time offer and sell Notes
otherwise than through an Agent; provided, however, that so long as this
Agreement shall be in effect, (i) the Company shall not solicit offers to
purchase Notes through any agent without (A) amending this Agreement to
appoint such agent as an additional Agent hereunder on the same terms and
conditions as provided herein for the Agents and (B) giving the Agents
prior notice of such appointment and (ii) the Company may accept any offer
to purchase Notes through any agent other than an Agent, provided that (A)
the Company shall not have solicited such offer, (B) the Company and such
agent shall have entered into an agreement with respect to such purchase
having terms and conditions (including, without limitation, any commissions
with respect thereto) in substance identical to the terms and conditions
that would apply to such purchase under this Agreement if such agent were
an Agent hereunder, which may be effected by incorporating the terms and
conditions of this Agreement by reference into such agreement in the form
of Exhibit C hereto, and (C) the Company shall provide the Agents with
notice of such offer to purchase, together with a copy of such agreement,
promptly following the acceptance thereof.
If the Company shall default in its obligations to deliver Notes
to a purchaser whose offer it has accepted, the Company shall hold each of
you harmless against any loss, claim or damage arising from or as a result
of such default.
(b) Sales of Notes to a Purchaser. Subject to the terms and
conditions stated herein, whenever the Company and one of you determines
that the Company shall sell Notes directly to you as Purchaser, each such
sale of Notes shall be made in accordance with the terms of this Agreement
and, if requested by such Agent, any supplemental agreement relating
thereto between the Company and the Purchaser. Each such supplemental
agreement (which may be an oral agreement confirmed in writing (including
facsimile transmission), so long as such oral agreement and written
confirmation contain all the information, as applicable, specified in
Exhibit D hereto) is herein referred to as a "Terms Agreement" and, if
written (or if a written confirmation of any such oral agreement), shall be
substantially in the form of Exhibit D hereto. The Purchaser's commitment
to purchase Notes pursuant to any Terms Agreement shall be
<PAGE>7
deemed to have been made on the basis of the representations and warranties
of the Company herein contained and shall be subject to the terms and
conditions herein set forth except as otherwise may be set forth therein.
Each Terms Agreement shall describe the Notes to be purchased by the Purchaser
pursuant thereto, specify the principal amount of such Notes, the price to
be paid to the Company for such Notes, the rate at which interest will be
paid on the Notes, the Closing Date for such Notes, the place of delivery
of the Notes and payment therefor, the method of payment and any
modification of the requirements for the delivery of the opinions of
counsel, the certificate from the Company and the letter from the Company's
independent public accountants, pursuant to Sections 5(d), 5(e), 5(f) and
5(g), respectively, hereof. In connection with the resale of any Notes, the
Purchaser thereof may utilize a selling or dealer group and may reallow to
any broker or dealer any portion of the discount or commission payable
pursuant hereto. Such Terms Agreement shall also specify the period of time
referred to in Section 4(l) hereof.
Delivery of the certificates for Notes sold to the Purchaser
pursuant to any Terms Agreement shall be made as agreed to between the
Company and the Purchaser as set forth in such Terms Agreement, not later
than the Closing Date set forth in such Terms Agreement, against payment of
funds to the Company in the net amount due to the Company for such Notes by
the method and in the form set forth in such Terms Agreement. If a Terms
Agreement does not contain such settlement details, the settlement details
specified in the Procedures shall apply with the Purchaser filling the
roles specified therein of the Agent and the beneficial owner.
Section 3. Offering and Sale of Notes. Each Agent and the Company
agree to perform the respective duties and obligations specifically
provided to be performed by them in the Procedures.
Section 4. Covenants of the Company. The Company covenants and
agrees with you that:
(a) Prior to the termination of the offering of the Notes
(including by way of resale by a Purchaser of Notes purchased pursuant
to a Terms Agreement), the Company will not file any amendment or
supplement to the Registration Statement or the Prospectus (except for
an amendment or supplement to the Basic Prospectus relating to an
offering of Securities other than the Notes) unless the Company has
furnished to Winthrop, Stimson, Putnam & Roberts ("Counsel for the
Agents") a copy for review prior to filing and will not file any such
proposed amendment or supplement to which any of you reasonably
objects; the Company will cause each such amendment or supplement
(other than any Incorporated Document) to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time
period prescribed and will provide evidence satisfactory to Counsel
for the Agents of such filing; the Company will also furnish to
Counsel for the Agents copies of all other material press releases or
announcements to the general public relating to the financial affairs
or condition of the Company; the Company will promptly advise Counsel
for the Agents (i) when the Prospectus, and any amendment or
supplement thereto, shall have been filed with the
<PAGE>8
Commission pursuant to Rule 424(b), (ii) when, prior to the termination
of the offering of the Notes, any amendment or supplement to the
Registration Statement shall have been filed or become effective, (iii)
of any request by the Commission for any amendment or supplement to the
Registration Statement or the Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (v) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Notes for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose;
and the Company will use its reasonable best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when in the opinion of Counsel for the Agents
a prospectus relating to the Notes is required to be delivered under
the Act and no suspension of solicitation of offers to purchase Notes
from the Company pursuant to the third paragraph of Section 2(a)
hereof or this Section 4(b) shall be in effect (any such time and any
other time when either (i) any of you as Purchaser shall own any Notes
purchased pursuant to a Terms Agreement with the intention of
reselling them or (ii) an offer to purchase any of the Notes has been
accepted by the Company but the Closing Date therefor has not
occurred, a "Marketing Period"), any event occurs as a result of which
the Prospectus as then amended and supplemented would include an
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it
shall be necessary to amend or supplement the Registration Statement
or the Prospectus to comply with the Act, the Exchange Act or the
Trust Indenture Act or the respective rules and regulations
thereunder, the Company promptly will (A) notify each of you to
suspend solicitation of offers to purchase Notes (and, if so notified
by the Company, each of you shall forthwith suspend such solicitation
and cease using the Prospectus as then amended or supplemented), (B)
prepare and file with the Commission, subject to the first clause of
Section 4(a) hereof, an amendment or supplement that will correct such
statement or omission or effect such compliance and (C) supply any
amended or supplemented Prospectus to each of you in such quantities
as you may reasonably request; and, if such amendment or supplement,
and the certificate, legal opinion and accountant's letter delivered
to you pursuant to Sections 4(i), 4(j) and 4(k), respectively, hereof
in connection with the filing of such amendment or supplement, are
satisfactory in all respects to you and Counsel for the Agents, you
will, upon the filing of such amendment or supplement with the
Commission and upon the effectiveness of an amendment to the
Registration Statement, if such an amendment is required, resume your
obligation to solicit offers to purchase Notes hereunder.
(c) The Company, so long as delivery of a prospectus relating to
the Notes may be required by the Act, will file promptly all documents
required to be filed with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act; and the Company will promptly
notify each of you of any written notice given to the
<PAGE>9
Company of any intended or potential decrease in any rating of the Notes
or any other debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
15c3-1 under the Exchange Act) or of a possible change in any such
rating that does not indicate the direction of the possible change.
(d) As soon as practicable, the Company will make generally
available to its security holders an earning statement or statements
of the Company and its subsidiaries that will satisfy the provisions
of Section 11(a) of the Act and Rule 158 thereunder.
(e) The Company will furnish to each of you and Counsel for the
Agents, without charge, a signed copy of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus
relating to the Notes may be required by the Act, as many copies of
the Prospectus, including all amendments and supplements thereto and
all Incorporated Documents, as you may reasonably request.
(f) The Company will arrange for the qualification of the Notes
for sale under the laws of such jurisdictions as any of you may
reasonably designate, will maintain such qualifications in effect so
long as required for the distribution of the Notes, and will arrange
for the determination of the legality of the Notes for purchase by
institutional investors.
(g) The Company shall, whether or not any sale of the Notes is
consummated, (i) pay all expenses incident to the performance of its
obligations under this Agreement and any Terms Agreement, including
the fees and disbursements of its accountants and counsel, the cost of
printing or other production and delivery of the Registration
Statement and the Prospectus (including all amendments and supplements
thereto), the Indenture, this Agreement, such Terms Agreement and all
other documents relating to the offering of the Notes, the cost of
preparing, printing, packaging and delivering the Notes, the fees and
disbursements, including fees of counsel, incurred in compliance with
Section 4(f) hereof, the fees and disbursements of the Trustee, the
fees and disbursements of the Calculation Agent (as defined in the
Prospectus) and its counsel and the fees of any agencies that rate the
Notes, (ii) reimburse each of you on a monthly basis for all
out-of-pocket expenses (including without limitation any advertising
expenses in respect of advertising determined to be appropriate by the
Company and the Agents in accordance with the Procedures) incurred by
you in connection with this Agreement and (iii) pay the reasonable
fees and expenses of Counsel for the Agents incurred in connection
with this Agreement and the offering from time to time of the Notes.
(h) Each acceptance by the Company of an offer to purchase Notes
will be deemed to be an affirmation that the representations and
warranties of the Company contained in this Agreement and in the most
recent certificate theretofore given to you pursuant hereto are true
and correct at the time of such acceptance, and an undertaking that
such representations and warranties will be true and correct at the
Closing Date for
<PAGE>10
such Notes as though made at and as of each such time (and it is
understood that such representations and warranties shall relate to
the Registration Statement and the Prospectus as amended or
supplemented to each such time); and each such acceptance by the
Company of an offer for the purchase of Notes shall be deemed to
constitute an additional representation, warranty and agreement by the
Company that, as of such Closing Date, after giving effect to the
issuance of such Notes, of any other Notes to be issued on or prior to
such Closing Date and of any other Securities to be issued and sold by
the Company on or prior to such Closing Date, the aggregate amount of
Securities (including any Notes) that have been issued and sold by the
Company will not exceed the amount of Securities registered pursuant
to the Registration Statement.
(i) During each Marketing Period, each time that the Registration
Statement or the Prospectus is amended or supplemented (other than by
(i) an amendment or supplement relating to any offering of Securities
other than the Notes, (ii) the filing of a Pricing Supplement by the
Company with the Commission under the Act or (iii) the filing of a
Current Report on Form 8-K by the Company with the Commission under
the Exchange Act that is filed solely (A) under Item 5 of Form 8-K and
not required to be filed to comply with Section 4(b) hereof or (B)
under Item 7 of Form 8-K for the purpose of filing exhibits pursuant
to Item 601 of Regulation S-K, unless in the case of clause (iii)(A)
above, in the reasonable judgment of any of you or Counsel for the
Agents, such information is of such a nature that a certificate of the
Company should be delivered), the Company will deliver or cause to be
delivered promptly to each of you a certificate of the Company, signed
by the Chairman of the Board, the President, the Executive Vice
President and Chief Financial Officer, the Vice President, Treasurer
or the Controller, dated the date of the effectiveness of or the date
of the filing with the Commission of, as the case may be, such
amendment or supplement, in form reasonably satisfactory to you, of
the same tenor as the certificate referred to in Section 5(f) hereof
but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of such
effectiveness or filing.
(j) During each Marketing Period, each time that the Registration
Statement or the Prospectus is amended or supplemented (other than by
(i) an amendment or supplement relating to any offering of Securities
other than the Notes, (ii) the filing of a Pricing Supplement by the
Company with the Commission under the Act or (iii) the filing of a
Current Report on Form 8-K by the Company with the Commission under
the Exchange Act that is filed solely (A) under Item 5 of Form 8-K and
not required to be filed to comply with Section 4(b) hereof or (B)
under Item 7 of Form 8-K for the purpose of filing exhibits pursuant
to Item 601 of Regulation S-K, unless, in the case of this clause
(iii), in the reasonable judgment of any of you, such information is
of such a nature that an opinion of counsel should be furnished), the
Company shall furnish or cause to be furnished promptly to each of you
a written opinion of Counsel for the Company (as defined in Section
5(d) hereof) satisfactory to each of you, dated the date of the
effectiveness of or the date of the filing with the Commission of, as
the case may be, such amendment or supplement, in form satisfactory to
each of you, of the same
<PAGE>11
tenor as the opinion referred to in paragraph (vii) of Section 5(d)
hereof but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of such
effectiveness or filing or, in lieu of such opinion, Counsel for the
Company may furnish each of you with a letter to the effect that you
may rely on the last opinion furnished to you by Counsel for the
Company to the same extent as though it were dated the date of such
letter authorizing reliance (except that statements in such last
opinion will be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of such
effectiveness or filing).
(k) During each Marketing Period, each time that the Registration
Statement or the Prospectus is amended or supplemented to set forth
amended or supplemental financial statements or other financial
information (other than such financial information as of and for, and
derived from, a fiscal quarter of the Company contained in a Current
Report on Form 8-K filed by the Company with the Commission under the
Exchange Act, provided that such financial information shall be
included in a Quarterly Report on Form 10-Q for such fiscal quarter
filed thereafter by the Company with the Commission under the Exchange
Act, unless in the reasonable judgment of any of you or Counsel for
the Agents, such information is of such a nature that a letter of
Deloitte & Touche LLP should be furnished at the time such Form 8-K is
so filed), the Company shall cause Deloitte & Touche LLP promptly to
furnish each of you a letter, dated the date of the effectiveness of
or the date of the filing of, as the case may be, such amendment or
supplement, in form satisfactory to each of you, of the same tenor as
the letter referred to in Section 5(g) hereof with such changes as may
be necessary to reflect the amended and supplemental financial
statements and other information included or incorporated by reference
in the Registration Statement and the Prospectus, as amended or
supplemented to the time of such effectiveness of filing; provided,
however, that, if the Registration Statement or the Prospectus is
amended or supplemented solely to include or incorporate by reference
financial information as of and for a fiscal quarter, Deloitte &
Touche LLP may limit the scope of such letter, which shall be
satisfactory in form to each of you, to the unaudited financial
statements, the related "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and any other
information of an accounting, financial or statistical nature included
in such amendment or supplement, unless, in the reasonable judgment of
any of you or Counsel for the Agents, such letter should cover other
information or changes in specified financial statement line items.
(l) During the period, if any, specified in any Terms Agreement,
the Company shall not, without the prior consent of the Purchaser
thereunder, offer, sell or contract to sell, or otherwise dispose of,
directly or indirectly, or announce the offering of, any debt
securities issued or guaranteed by the Company that have terms
substantially similar to the Notes being sold pursuant to such Terms
Agreement (other than such Notes).
(m) The Company shall not use or authorize the use of any
Prospectus containing the name of any Agent in connection with sales of
Notes (i) made directly by
<PAGE>12
the Company to any purchaser, unless such purchaser executes and delivers
to the Company an acknowledgment substantially in the form of Exhibit E
hereto, or (ii) through any agent of the Company other than an Agent,
unless the name of such agent is contained in the Prospectus (including
any Pricing Supplement); provided, however, that, subject to the fifth
paragraph of Section 2(a) hereof, the foregoing shall not be deemed to
prevent the distribution of the Prospectus by the Company to brokers or
dealers registered under the Exchange Act who are not Agents or to
institutional investors for the purpose of generating inquiries with
respect to the Notes.
Section 5. Conditions to the Obligations of the Agents and any
Purchaser. The obligations of each Agent to solicit offers to purchase the
Notes as agent of the Company and the obligations of each Purchaser to
purchase any Notes as principal shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein
on the Effective Date, as of the Execution Time, as of the date of any
Terms Agreement, when any amendment or supplement to the Prospectus is
filed with the Commission and as of each Closing Date (in each case with
the same effect as if made at such time), to the accuracy of the statements
of the Company made in any certificates pursuant to the provisions hereof,
to the performance and observance by the Company of its obligations
hereunder and covenants and agreements herein contained and to the
following additional conditions (other than, in the case of any such Terms
Agreement, paragraph (h) of this Section 5):
(a) If filing of the Prospectus, or any amendment or supplement
thereto, is required pursuant to Rule 424(b), the Prospectus, and any
such amendment or supplement, shall have been filed in the manner and
within the time period required by Rule 424(b); no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened; and the Company shall have delivered to you
a certificate of the Company signed by the Chairman of the Board, the
President, the Executive Vice President and Chief Financial Officer,
the Vice President, Treasurer or the Controller, dated the Execution
Time, of evidence of qualification of the Company to transact business
as a foreign corporation in each jurisdiction in which it owns or
leases substantial properties or in which the conduct of its business
requires such qualification, except where the failure to so qualify
would not have a material adverse effect on the financial condition of
the Company and its subsidiaries taken as a whole.
(b) None of you shall have discovered and disclosed to the
Company that the Registration Statement or the Prospectus contains an
untrue statement of a fact that, in the opinion of Counsel for the
Agents, is material or omits to state a fact that, in the opinion of
Counsel for the Agents, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Notes, the
Indenture, the form of the Registration Statement, the Prospectus
(other than financial statements and other
<PAGE>13
financial data), each such Terms Agreement and all other legal matters
relating to this Agreement and the transactions contemplated hereby
shall be satisfactory in all respects to Counsel for the Agents, and
the Company shall have furnished to Counsel for the Agents all
documents and information that it may reasonably request to enable
them to pass upon such matters.
(d) The Company shall have furnished to each of you the opinion
of Stoel Rives LLP ("Counsel for the Company"), dated the Execution
Time and, if specified in any such Terms Agreement, on the Closing
Date therefor, in form and substance satisfactory to Counsel for the
Agents, to the effect that:
(i) the Company is a duly organized and validly existing
corporation under the laws of the State of Washington;
(ii) the Company has due corporate right and corporate
authority to own its properties and to carry on the business in
which it is engaged as described in the Prospectus;
(iii) the Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act and constitutes a valid and legally binding
instrument of the Company enforceable against the Company in
accordance with its terms, except as limited by bankruptcy,
insolvency, reorganization or other laws affecting the
enforcement of creditors' rights generally or by equitable
principles affecting the availability of remedies;
(iv) the Notes conform as to legal matters to the
description thereof and the statements in regard thereto
contained in the Registration Statement and the Prospectus
(subject to the insertion in the Notes of the maturity dates, the
interest rates and other similar terms thereof that will be
described in Pricing Supplements);
(v) the Notes have been duly authorized and, when issued in
accordance with the Board Resolution (as defined in the
Indenture) and when authenticated and delivered in accordance
with the provisions of the Indenture and paid for by the
purchasers thereof, will constitute valid and legally binding
obligations of the Company enforceable against the Company in
accordance with their terms, except as limited by bankruptcy,
insolvency, reorganization or other laws affecting the
enforcement of creditors' rights generally or by equitable
principles affecting the availability of remedies;
(vi) to the best of such counsel's knowledge and
information, there are no legal or governmental proceedings
pending or threatened against the Company or its subsidiaries
that are required to be disclosed in the Registration Statement
<PAGE>14
or the Prospectus other than those disclosed therein;
(vii) the Registration Statement, at the Effective Date, and
the Prospectus, at the time it was filed pursuant to Rule 424(b)
(except in each case as to the financial statements and other
financial and statistical data contained therein, upon which such
opinion need not pass and except for Incorporated Documents),
complied or complies, as the case may be, as to form in all
material respects with the requirements of the Act and the Trust
Indenture Act and the respective rules and regulations
thereunder; each Incorporated Document as originally filed
pursuant to the Exchange Act (except as to financial statements
and other financial and statistical data contained therein, upon
which such opinion need not pass) complied as to form when so
filed in all material respects with the requirements of the
Exchange Act and the rules and regulations thereunder; the
Registration Statement has become effective under the Act and, to
the best of the knowledge of such counsel, no proceedings for a
stop order with respect thereto are threatened or pending under
Section 8 of the Act; and nothing has come to the attention of
such counsel that has caused them to believe that the
Registration Statement (except as to financial statements and
other financial and statistical data contained therein, upon
which such opinion need not pass), at the Effective Date,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the
Prospectus (except as to financial statements and other financial
and statistical data contained therein, upon which such opinion
need not pass), at the time it was filed pursuant to Rule 424(b),
at the Execution Time and, in the case of such Terms Agreement,
at the Closing Date therefor, included or includes, as the case
may be, an untrue statement of a material fact or omitted or
omits, as the case may be, 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;
(viii) this Agreement and such Terms Agreement have been
duly authorized, executed and delivered by the Company;
(ix) no approval, authorization, consent or order of any
governmental body is legally required for the authorization of
the issuance and sale of the Notes by the Company pursuant to the
terms of this Agreement, except such as may be required under the
Act or under state or other securities or blue sky laws; and
(x) the sale of all or any of the Notes herein contemplated
and the fulfillment of the terms hereof will not result in a
breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust or other
material agreement for borrowed money the terms of which are
known to such counsel to which the Company is a party (except as
to financial covenants contained in any such instruments and
agreements, upon which such
<PAGE>15
opinion need not pass).
In rendering such opinion, Counsel for the Company may rely (A) as
to matters involving the application of laws of the State of New
York, upon the opinion of Counsel for the Agents and (B) as to
matters of fact, to the extent deemed proper, on certificates of
responsible officers of the Company and public officials.
References to the Registration Statement and the Prospectus in
this Section 5(d) include any amendment or supplement thereto at
the date such opinion is rendered.
(e) Each of you shall have received the opinion of Counsel for
the Agents, dated the Execution Time and, if specified in any such
Terms Agreement, the Closing Date therefor, as the case may be, with
respect to the matters set forth in paragraphs (i), (iii), (iv), (v),
(vii) (except as to Incorporated Documents) and (viii) of Section 5(d)
hereof and other related matters as such of you may reasonably
require, and the Company shall have furnished to Counsel for the
Agents such documents as they request for the purpose of enabling them
to pass upon such matters. In rendering such opinion, Counsel for the
Agents may rely (A) as to matters involving the application of the
laws of Washington upon the opinion of Counsel for the Company and (B)
as to matters of fact, to the extent deemed proper, on certificates of
responsible officers of the Company and public officials.
(f) The Company shall have furnished to each of you a certificate
of the Company, signed by the Chairman of the Board, the President,
the Executive Vice President and Chief Financial Officer, the Vice
President, Treasurer or the Controller, dated the Execution Time and,
if specified in any such Terms Agreement, the Closing Date therefor,
stating that:
(i) the representations and warranties of the Company in
this Agreement are true and correct in all material respects and,
in the case of such Terms Agreement, with the same effect as if
made on such Closing Date and the Company has complied with all
the agreements and satisfied all the conditions on its part to be
performed or satisfied as a condition to the obligation of each
of you to solicit offers to purchase the Notes or purchase the
Notes, as the case may be;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) such signer of such certificate has examined the
Registration Statement and the Prospectus (as they may then be
amended and supplemented) and, to the best of such signer's
knowledge, (A) the Registration Statement (as so amended and
supplemented) does not contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, (B) the Prospectus (as so amended
<PAGE>16
and supplemented) does not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading and (C) since the Effective Date
there has not occurred any event required to be set forth in the
Prospectus (as so amended and supplemented) that has not been so
set forth.
(g) Deloitte & Touche LLP shall have furnished to each of you a
letter or letters (which may refer to letters previously delivered to
the Agents), dated as of the Execution Time and, if specified in such
Terms Agreement, the Closing Date therefor, in form and substance
satisfactory to such of you, confirming that they are independent
accountants within the meaning of the Act and the Exchange Act and the
respective rules thereunder and stating in effect that:
(i) in their opinion, the consolidated financial statements
and schedules included or incorporated by reference in the
Registration Statement and the Prospectus and audited by them
comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the
rules and regulations thereunder;
(ii) on the basis of a reading of the unaudited consolidated
financial statements included or incorporated by reference in the
Registration Statement and the Prospectus, if any, and the latest
available interim unaudited consolidated financial statements of
the Company, if any, the performance of the procedures specified
by the American Institute of Certified Public Accountants for a
review of any such unaudited consolidated financial information
as described in Statement on Auditing Standards No. 71, inquiries
of officials of the Company responsible for financial and
accounting matters and a reading of the minutes of meetings of
the shareholders and the Company's Board of Directors through a
specified date not more than five business days prior to the date
of their letter, nothing came to their attention that caused them
to believe that: (A) any material modification should be made to
the unaudited consolidated financial statements included or
incorporated by reference in the Prospectus, if any, for them to
be in conformity with generally accepted accounting principles or
any such unaudited consolidated financial statements do not
comply as to form in all material respects with the applicable
accounting requirements of the Act and the rules and regulations
thereunder; (B) for the period from the date of the latest
audited financial statements included or incorporated by
reference in the Prospectus to the date of the latest available
financial statements of the Company, there were any decreases in
operating revenues, net income applicable to common stock as
compared with the comparable period of the preceding year; or (C)
at the date of the latest available interim consolidated balance
sheet read by them and at a subsequent date not more than five
business days prior to the date of such letter, there was any
change in the capital stock or long-term debt of the Company or
any decrease in
<PAGE>17
its net assets as compared with the amounts shown in the most
recent consolidated balance sheet included or incorporated by
reference in the Prospectus, except in all instances for changes
or decreases that the Registration Statement or the Prospectus
discloses have occurred or may occur, or for changes or decreases
that are described in such letter that are reasonably satisfactory
to each of you; and
(iii) if unaudited pro forma financial statements are
included or incorporated by reference in the Registration
Statement and the Prospectus, on the basis of a reading of such
unaudited pro forma financial statements, carrying out certain
specified procedures, inquiries of certain officials of the
Company and the company acquired or to be acquired who have
responsibility for financial and accounting matters and proving
the arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts in such pro forma financial
statements, nothing came to their attention that caused them to
believe that such pro forma financial statements do not comply in
form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X or that such pro
forma adjustments have not been properly applied to such
historical amounts in the compilation of such pro forma financial
statements.
Such letter would also cover such other matters as any of you shall
reasonably request, including but not limited to the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" contained in the financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus and any other information of an accounting, financial or
statistical nature included therein.
References to the Registration Statement and the Prospectus in this
Section 6(g) include any amendment or supplement thereto at the date
of such letter.
(h) Subsequent to the execution of this Agreement, there shall
not have occurred and be continuing any of the following: (i) the
suspension of trading in securities generally on the New York Stock
Exchange or the establishment of minimum prices on such Exchange, (ii)
the declaration of a banking moratorium by either Federal or New York
State authorities, (iii) the occurrence of any outbreak or material
escalation of hostilities or other calamity or crisis the effect of
which on the financial markets of the United States is such as to make
it, in the judgment of the Agents, impracticable to market the Notes,
(iv) a decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined in Rule 15c3-1 under the Exchange Act), any written notice to
the Company or any public announcement of any intended or potential
decrease in any such rating or of a possible change in any such rating
that does not indicate the direction of such possible change or (v)
the failure to provide the certificate, legal opinion or accountant's
letter required pursuant to Sections 4(i), 4(j) and 4(k),
respectively, hereof.
(i) Prior to the Execution Time and the Closing Date for any such
Terms
<PAGE>18
Agreement, as the case may be, the Company shall have furnished
to each of you such further information, documents, certificates and
opinions of counsel as any of you may reasonably request.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement and, if applicable, such Terms Agreement, or if any of the
opinions and certificates mentioned above or elsewhere in this Agreement or
such Terms Agreement, as the case may be, shall not be in all material
respects reasonably satisfactory in form and substance to each of you and
Counsel for the Agents, this Agreement and such Terms Agreement, as the
case may be, and all of the obligations of each of you hereunder or
thereunder, as the case may be, may be canceled at any time by such of you.
Notice of such cancellation shall be given to the Company in writing or by
telephone or telegraph promptly confirmed in writing.
The documents required to be delivered by this Section 5 shall be
delivered at the office of Winthrop, Stimson, Putnam & Roberts, Counsel for
the Agents, at One Battery Park Plaza, New York, New York, or at such other
location as may be agreed upon in writing by the Company and the Agents, at
the Execution Time or the Closing Date for such Terms Agreement, as the
case may be.
Section 6. Right of Person Who Agreed to Purchase to Refuse to
Purchase. The Company agrees that any person who has agreed to purchase and
pay for any Note, including any of you and any person who purchases
pursuant to a solicitation by any of the Agents, shall have the right to
refuse to purchase such Note if, at the Closing Date therefor, (a) any
condition set forth in Section 5 hereof (other than paragraph (h) thereof)
shall not be satisfied or (b) subsequent to the agreement to purchase such
Note, any change, or any development involving a prospective change, in or
affecting the business or properties of the Company and its subsidiaries
shall have occurred the effect of which is, in the judgment of the
Purchaser or the Agent that presented the offer to purchase such Note, as
applicable, so material and adverse as to make it impractical or
inadvisable to proceed with the delivery of such Note or (c) subsequent to
the agreement to purchase such Note, there shall have been any decrease in
the rating of any of the Company's debt securities by any "nationally
recognized statistical rating organization" (as defined in Rule 15c3-1
under the Exchange Act) or any written notice given to the Company or any
public announcement of any intended or potential decrease in any such
rating or of a possible change in any such rating that does not indicate
the direction of such possible change.
Section 7. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each of you
and each person, if any, who controls any of you within the meaning of
Section 15 of the Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever arising out of any untrue statement or alleged
untrue statement of a material fact contained in any preliminary
prospectus relating to the Notes (if used prior to the
<PAGE>19
Effective Date), including all documents then incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act, in the Incorporated
Documents, in the Registration Statement or the Prospectus, or in the
Registration Statement or the Prospectus as amended or supplemented
(if any amendments or supplements thereto shall have been furnished),
or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements
therein not misleading unless such untrue statement or omission or
such alleged untrue statement or omission was made in reliance upon
and in conformity with written information furnished to the Company by
any of you expressly for use in the Registration Statement or the
Prospectus (or any amendment or supplement to either thereof) or
arising out of, or based upon, statements in or omissions from that
part of the Registration Statement that shall constitute the Statement
of Eligibility on Form T-1 of the Trustee; provided, however, any such
indemnity with respect to a Prospectus shall not inure to the benefit
of any of you (or of any person controlling such of you) on account of
any loss, claim, damage or expense arising from the sale of Notes to
any person if any amendments or supplements to such Prospectus shall
have been furnished to such of you on a timely basis and in such
quantities to permit such of you to send or give to such person, and
it shall be established that such of you shall have failed to send or
give to such person, (i) with or prior to the written confirmation of
such sale, a copy of such amendment or supplement, except the
Incorporated Documents, and the untrue statement or omission of a
material fact contained in such Prospectus and giving rise to such
loss, liability, claim, damage or expense was corrected in such
amendment or supplement or (ii) with or prior to the delivery of such
Notes to such person, a copy of such amendment or supplement that
shall have been furnished subsequent to such written confirmation and
prior to such delivery, except the Incorporated Documents, and the
untrue statement or omission of a material fact contained in such
Prospectus and giving rise to such loss, liability, claim, damage or
expense was corrected in such amendment or supplement;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, commenced or threatened or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever reasonably incurred
in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under clause
(i) or (ii) above.
(b) Each of you severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained
in Section 7(a) hereof,
<PAGE>20
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 relating to the Notes or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity
with written information furnished to the Company by such of you 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 prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure so to notify an indemnifying
party shall not relieve it from any liability on account to this indemnity
agreement except to the extent that it has been prejudiced in any material
respect by such failure or from any liability that it may have to such
indemnified person otherwise than on account of this indemnity agreement.
An indemnifying party may participate at its own expense in the defense of
such action. If it so elects within a reasonable time after receipt of such
notice, an indemnifying party, jointly with any other indemnifying parties
receiving such notice, may assume the defense of such action with counsel
chosen by it and approved by the indemnified parties defendant in such
action, unless such indemnified parties reasonably object to such
assumption on the ground that there may be legal defenses available to them
that are different from or in addition to those available to such
indemnifying party. 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. In no event shall the indemnifying parties be
liable for the fees and expenses of more than one 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.
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 7(a) or 7(b) hereof in respect of any losses, liabilities, claims,
damages or expenses (or actions in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, liabilities, claims,
damages or expenses (or actions in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the Company on
the one hand and you on the other from the relevant offering of the Notes.
If, however, the allocation provided by the immediately preceding sentence
is not permitted by applicable law, then such indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company on the one hand and you on the other
in connection with the statements or omissions that resulted in such
losses, liabilities, claims, damages or expenses (or actions in respect
thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and you on the
other shall be deemed to be in the same proportion as the total net
proceeds from the relevant offering of the Notes (before deducting
expenses) received by the Company bear to the total commissions received by
you in respect of such offering (or, in the case of Notes sold pursuant to
a Terms Agreement, the aggregate commissions that would have been received
by such of you
<PAGE>21
if such commissions had been payable), in each case as set forth on the
cover page of the Prospectus Supplement or the applicable Pricing Supplement,
as the case may be. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or you and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company and you agree that it
would not be just and equitable if contribution pursuant to this Section 7(d)
were determined by pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to above
in this Section 7(d). The amount paid or payable by an indemnified party as
a result of the losses, liabilities, claims, damages or expenses (or actions
in respect thereof) referred to above in this Section 7(d) shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(e) You confirm that the statements with respect to the public
offering of the Notes set forth in the fourth sentence of the last
paragraph on the cover page of the Prospectus Supplement and the statements
with respect to the resale of any Note at a discount in the first
paragraph, and with respect to the market making activities of any Agent
set forth in the fourth paragraph, under the caption "Plan of Distribution
of Notes" therein are correct and complete and were furnished in writing to
the Company by you for inclusion in the Registration Statement and the
Prospectus.
Section 8. Termination. (a) This Agreement will continue in
effect until terminated as provided in this Section 8. This Agreement may
be terminated by either the Company as to any of you or any of you, insofar
as this Agreement relates to such of you, giving written notice of such
termination to such of you or the Company, as the case may be. This
Agreement shall so terminate at the close of business on the first business
day following the receipt of such notice by the party to whom such notice
is given.
(b) Each Terms Agreement shall be subject to termination in the
absolute discretion of the Purchaser by notice given to the Company prior
to delivery of any payment for Notes to be purchased thereunder, if prior
to such time (i) trading in securities generally on the New York Stock
Exchange shall have been suspended or limited or minimum prices shall have
been established on such Exchange, (ii) a banking moratorium shall have
been declared either by Federal or New York State authorities, (iii) there
shall have occurred any outbreak or material escalation of hostilities or
other calamity or crisis the effect of which on the financial markets of
the United States is such as to make it, in the judgment of the Purchaser,
impracticable to market such Notes or (iv) the Company is unable to provide
the legal opinion, certificate or accountant's letter required under
Sections 5(d), 5(f) and 5(g), respectively, hereof.
(c) In the event of any termination under Section 8(a) or 8(b)
hereof, none of
<PAGE>22
you shall have any liability to the Company and the Company shall not have
any liability to any of you, except that (i) the Agents shall be entitled
to any commission earned in accordance with the fourth paragraph of Section
2(a) hereof, (ii) if at the time of termination (A) any of you as Purchaser
shall own any Notes purchased pursuant to a Terms Agreement with the intention
of reselling them or (B) an offer to purchase any of the Notes has been
accepted by the Company but the Closing Date therefor has not occurred, the
covenants set forth in Section 4 hereof shall remain in effect until such
Notes have been resold or delivered, as the case may be, and (iii) the
covenants set forth in Sections 4(d) and 4(g) hereof, the indemnity and
contribution agreements set forth in Section 7 hereof and the provisions of
Sections 9 and 12 hereof shall remain in effect.
Section 9. Survival of Certain Provisions. The respective
agreements, representations, warranties, indemnities and other statements
of the Company or its officers and of you set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of you or the Company or any of the
officers, directors or controlling persons referred to in Section 7 hereof
and will survive delivery of and payment for the Notes.
Section 10. Notices. All communications hereunder and under any
Terms Agreement will be in writing (which may be by telex or facsimile
transmission) and effective only on receipt, and, if sent to any of you,
will be mailed, delivered or transmitted and confirmed to such of you, at
the address specified in Schedule I hereto; or, if sent to the Company,
will be mailed, delivered or transmitted and confirmed to it at Pacific
Telecom, Inc., 805 Broadway, Vancouver, Washington 98668, Attention of the
Vice President and Treasurer, telephone: 360-696-6918, telecopy:
360-696-6974.
Section 11. Successors. This Agreement and any Terms Agreement
will inure to the benefit of and be binding upon the parties hereto and
their respective successors and the officers and directors and controlling
persons referred to in Section 7 hereof and, to the extent provided in
Section 6 hereof, any person who has agreed to purchase Notes, and no other
person will have any right or obligation hereunder or thereunder.
Section 12. Applicable Law. This Agreement and any Terms
Agreement will be governed by and construed in accordance with the laws of
the State of New York.
<PAGE>23
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement between the Company and each of you.
Very truly yours,
Pacific Telecom, Inc.
By:
--------------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
Salomon Brothers Inc
By:
--------------------------------------
Name:
Title:
- -----------------------------------------
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner
& Smith Incorporated
By:
--------------------------------------
Name:
Title:
<PAGE>
SCHEDULE I
----------
The Company agrees to pay each of Salomon Brothers Inc
("Salomon"), Goldman, Sachs & Co. ("Goldman") and Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill") a commission
equal to the following percentage of the principal amount of each Note sold
by the Company as a result of a solicitation made by such Agent:
Term Commission Rate
---- ---------------
9 months to less than 12 months .125%
12 months to less than 18 months .150%
18 months to less than 2 years .200%
2 years to less than 3 years .250%
3 years to less than 4 years .350%
4 years to less than 5 years .450%
5 years to less than 6 years .500%
6 years to less than 7 years .550%
7 years to less than 10 years .600%
10 years to less than 15 years .625%
15 years to less than 20 years .650%
20 years to less than 30 years .750%
30 years to less than 40 years .875%
40 years or more Negotiated at the
time of sale
Address for Notice to you:
Notices to Salomon shall be directed to it at Seven World Trade
Center, New York, New York 10048, Attention of the Medium-Term Note
Department, telephone: 212-783-6848, telecopy: 212-783-2274.
Notices to Goldman shall be directed to it at 85 Broad Street,
New York, New York 10004, Attention of Medium-Term Note Desk, telephone:
212-902- 1482, telecopy: 212-902-0658.
Notices to Merrill shall be directed to it at World Financial
Center, North Tower, 10th Floor, New York, New York 10281-1310, Attention
of MTN Product Management,
<PAGE>2
telephone: 212-449-7476, telecopy: 212-449-2234.
<PAGE>
EXHIBIT A
---------
Pacific Telecom, Inc.
MEDIUM-TERM NOTES, SERIES C
ADMINISTRATIVE PROCEDURES
--------------
[_____], 1996
The Medium-Term Notes, Series C (the "Notes") of Pacific Telecom,
Inc. (the "Company") are to be offered on a continuing basis by the Company
pursuant to a Selling Agency Agreement dated [_____], 1996 between each of
Salomon Brothers Inc, Goldman, Sachs & Co. and Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, as agents of the Company (each
an "Agent"), and the Company (the "Agency Agreement"). Unless otherwise
defined herein, terms defined in the Indenture (as defined below) and the
Notes shall be used herein as therein defined.
Each Agent has agreed to solicit purchases of Notes issued in
fully registered form. The Agents will not be obligated to purchase Notes
for their own account. Each Agent, as principal, may purchase Notes for its
own account pursuant to the terms of a Terms Agreement. The Notes will rank
equally with all other unsecured and unsubordinated debt of the Company and
have been registered with the Securities and Exchange Commission (the
"Commission"). The Notes will be issued under the Indenture dated as of
September 20, 1991, as amended and supplemented, between The First National
Bank of Chicago ("FNBC"), as trustee (the "Trustee"), and the Company (the
"Indenture").
Each Note will be represented by either (i) a Global Security (as
defined under "Issuance" in Part I below) delivered to FNBC, as agent for
The Depository Trust Company ("DTC"), and recorded in the book-entry system
maintained by DTC (a "Book-Entry Note") or (ii) a certificate delivered to
the Holder thereof or a Person designated by such Holder (a "Certificated
Note"). Only Notes denominated and payable in U.S. dollars may be issued as
Book-Entry Notes. An owner of a Book-Entry Note will not be entitled to
receive a certificate representing such Note.
The procedures to be followed during, and the specific terms of,
the solicitation of orders by the Agents and the sale as a result thereof
by the Company are explained below. Administrative and record-keeping
responsibilities will be handled for the Company by its
<PAGE>A-2
Treasury Department. The Company will advise the Agents and the Trustee in
writing of those persons handling administrative responsibilities with whom the
Agents and the Trustee are to communicate regarding orders to purchase
Notes and the details of their delivery.
Administrative procedures and specific terms of the offering are
explained below. Book-Entry Notes will be issued in accordance with the
administrative procedures set forth in Part I hereof, as adjusted in
accordance with changes in DTC's operating requirements, and Certificated
Notes will be issued in accordance with the administrative procedures set
forth in Part II hereof. To the extent the administrative procedures are
generally applicable to Book-Entry Notes and Certificated Notes, such
administrative procedures are set forth in Part III hereof. Notes for which
interest is calculated on the basis of a fixed interest rate, which may be
zero, are referred to herein as "Fixed Rate Notes." Notes for which
interest is calculated on the basis of a floating interest rate are
referred to herein as "Floating Rate Notes." To the extent the procedures
set forth below conflict with the provisions of the Notes, the Indenture,
DTC's operating requirements or the Agency Agreement, the relevant
provisions of the Notes, the Indenture, DTC's operating requirements and
the Agency Agreement shall control.
PART I
Administrative Procedures for
Book-Entry Notes
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, FNBC will perform
the custodial, document control and administrative functions described
below, in accordance with its respective obligations under a Letter of
Representations dated as of [_____], 1996 from the Company and FNBC to DTC
and a Medium-Term Note Certificate Agreement dated May 26, 1989 between
FNBC and DTC and its obligations as a participant in DTC, including DTC's
Same-Day Funds Settlement system ("SDFS").
Issuance: On any date of settlement (as defined under
"Settlement" in Part III below) for one or more
Book- Entry Notes, the Company will issue a single
global security in fully registered form without
coupons (a "Global Security") representing all
such Book-Entry Notes that have the same original
issue date, original issue discount provisions, if
any, Interest Payment Dates, Regular Record Dates,
Interest Payment Period, Redemption Date and other
redemption provisions, if any, Maturity Date and,
in the case of Fixed Rate Notes, Interest Rate
and, in the case of Floating Rate Notes, Initial
Interest Rate, Base Rate, Index Maturity, Interest
Reset Period, Interest Reset Dates, Spread or
Spread Multiplier, if any, Minimum Interest Rate,
if any, and Maximum Interest Rate, if any
(collectively, the "Terms"). Each
<PAGE>A-3
Global Security will be dated and issued as of the
date of its authentication by the Trustee. Each Global
Security will bear an original issue date, which
will be (i) with respect to an original Global
Security (or any portion thereof), the original
issue date specified in such Global Security and
(ii) following a consolidation of Global
Securities, with respect to the Global Security
resulting from such consolidation, the most recent
Interest Payment Date to which interest has been
paid or duly provided for on the predecessor
Global Securities, regardless of the date of
authentication of such resulting Global Security.
No Global Security will represent (i) both Fixed
Rate and Floating Rate Book-Entry Notes or (ii)
any Certificated Note.
Identification Numbers: The Company and the Agents have arranged
with the CUSIP Service Bureau of Standard & Poor's
Corporation (the "CUSIP Service Bureau") for the
reservation of a series of CUSIP numbers, which
series consists of approximately 900 CUSIP numbers
and relates to Global Securities representing
Book-Entry Notes. FNBC, the Company and DTC have
obtained from the CUSIP Service Bureau a written
list of such reserved CUSIP numbers. The Trustee
will assign CUSIP numbers to Global Securities as
described below under Settlement Procedure "B".
DTC will notify the CUSIP Service Bureau
periodically of the CUSIP numbers that the Company
has assigned to Global Securities. FNBC will
notify the Company at any time when fewer than 100
of the reserved CUSIP numbers remain unassigned to
Global Securities and, if it deems necessary, the
Company will reserve additional CUSIP numbers for
assignment to Global Securities. Upon obtaining
such additional CUSIP numbers, the Company shall
deliver a list of such additional CUSIP numbers to
FNBC and DTC.
Registration: Global Securities will be issued only in fully
registered form without coupons. Each Global
Security will be registered in the name of CEDE &
CO., as nominee for DTC, on the securities
register for the Notes maintained under the
Indenture. The beneficial owner of a Book-Entry
Note (or one or more indirect participants in DTC
designated by such owner) will designate one or
more participants in DTC (with respect to such
Book-Entry Note, the "Participants") to act as
agent or agents for such owner in connection with
the book-entry system maintained by DTC, and DTC
will record in book-entry form, in accordance with
instructions provided by such Participants, a
credit balance with respect to such beneficial
owner in such Book-Entry Note in the
<PAGE>A-4
account of such Participants. The ownership
interest of such beneficial owner (or such
participant) in such Book-Entry Note will be
recorded through the records of such Participants
or through the separate records of such
Participants and one or more indirect participants
in DTC.
Transfers: Transfers of a Book-Entry Note will be
accomplished by book entries made by DTC and, in
turn, by Participants (and in certain cases, one
or more indirect participants in DTC) acting on
behalf of beneficial transferors and transferees
of such Note.
Exchanges: FNBC may deliver to DTC and the CUSIP Service
Bureau at any time a written notice of
consolidation (a copy of which shall be attached
to the resulting Global Security described below)
specifying (i) the CUSIP numbers of two or more
Outstanding Global Securities that represent (A)
Fixed Rate Book-Entry Notes having the same Terms
and for which interest has been paid to the same
date or (B) Floating Rate Book-Entry Notes having
the same Terms and for which interest has been
paid to the same date, (ii) a date, occurring at
least 30 days after such written notice is
delivered and at least 30 days before the next
Interest Payment Date for such Book-Entry Notes,
on which such Global Securities shall be exchanged
for a single replacement Global Security and (iii)
a new CUSIP number, obtained from the Company, to
be assigned to such replacement Global Security.
Upon receipt of such a notice, DTC will send to
its participants (including FNBC) a written
reorganization notice to the effect that such
exchange will occur on such date. Prior to the
specified exchange date, FNBC will deliver to the
CUSIP Service Bureau a written notice setting
forth such exchange date and such new CUSIP number
and stating that, as of such exchange date, the
CUSIP numbers of the Global Securities to be
exchanged will no longer be valid. On the
specified exchange date, FNBC will exchange such
Global Securities for a single Global Security
bearing the new CUSIP number and the CUSIP numbers
of the exchanged Global Securities will, in
accordance with CUSIP Service Bureau procedures,
be canceled and not immediately reassigned.
Payments of Principal Payment of Interest Only. Promptly after each Regular
and Interest: Record Date, FNBC will deliver to the Company and
DTC a written notice setting forth, by CUSIP
number, the amount of interest to be paid on each
Global Security on the following Interest Payment
Date (other than an Interest Payment Date
coinciding
<PAGE>A-5
with Maturity) and the total of such amounts. DTC
will confirm the amount payable on each Global
Security on such Interest Payment Date by
reference to the appropriate (daily or weekly)
bond reports published by Standard & Poor's
Corporation. The Company will pay to FNBC, as
paying agent, the total amount of interest due on
such Interest Payment Date (other than at
Maturity), and FNBC will pay such amount to DTC,
at the times and in the manner set forth below
under "Manner of Payment." If any Interest Payment
Date for a Book-Entry Note is not a Business Day,
the payment due on such day shall be made on the
next succeeding Business Day and no interest shall
accrue on such payment for the period from and
after such Interest Payment Date.
Payments at Maturity. On or about the first Business
Day of each month, FNBC will deliver to the Company,
DTC and the Trustee a written list of principal and
interest to be paid on each Global Security at the
Maturity thereof in the following month. FNBC, the
Company and DTC will confirm the amounts of such
principal and interest payments with respect to
each such Global Security on or about the fifth
Business Day preceding such Maturity. On or before
such Maturity, the Company will pay to FNBC, as
paying agent, the principal amount of such Global
Security, together with interest due at such
Maturity. FNBC will pay such amount to DTC at the
times and in the manner set forth below under
"Manner of Payment." If any Maturity of a Global
Security representing Book-Entry Notes is not a
Business Day, the payment due on such day shall be
made on the next succeeding Business Day and no
interest shall accrue on such payment for the
period from and after such Maturity. Promptly
after payment to DTC of the principal and interest
due at Maturity of such Global Security, the
Trustee will cancel such Global Security in
accordance with the Indenture and so advise the
Company. On the first Business Day of each month,
FNBC will deliver to the Trustee a written
statement indicating the total principal amount of
Outstanding Global Securities as of the
immediately preceding Business Day.
Manner of Payment. The total amount of any
principal and interest due on Global Securities on
any Interest Payment Date or at Maturity shall be
paid by the Company to FNBC in immediately
available funds no later than Noon (New York City
time) on such date. The Company will make such
payment on such Global Securities by instructing
FNBC to withdraw funds
<PAGE>A-6
from an account maintained by the Company at FNBC
or by wire transfer to FNBC. The Company will
confirm any such instructions in writing to FNBC.
Prior to 12:30 P.M. (New York City time) on the
date of Maturity or as soon as possible
thereafter, FNBC will pay by separate wire
transfer (using Fedwire message entry instructions
in a form previously specified by DTC) to an
account at the Federal Reserve Bank of New York
previously specified by DTC, in funds available
for immediate use by DTC, each payment of
principal (together with interest thereon) due on
a Global Security on such date. On each Interest
Payment Date (other than at Maturity), interest
payments shall be made to DTC, in funds available
for immediate use by DTC, in accordance with
existing arrangements between FNBC and DTC. On
each such date, DTC will pay, in accordance with
its SDFS operating procedures then in effect, such
amounts in funds available for immediate use to
the respective Participants in whose names the
Book-Entry Notes represented by such Global
Securities are recorded in the book-entry system
maintained by DTC. None of the Company (as issuer
or as paying agent), the Trustee or FNBC shall
have any direct responsibility or liability for
the payment by DTC to such Participants of the
principal of and interest on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes
required under applicable law to be withheld from
any interest payment on a Book-Entry Note will be
determined and withheld by the Participant,
indirect participant in DTC or other Person
responsible for forwarding payments and materials
directly to the beneficial owner of such Note.
Settlement Procedures: Settlement Procedures with regard to each Book-Entry
Note sold by the Company through any Agent, as agent,
shall be as follows:
A. The Presenting Agent (as defined under
"Preparation of Pricing Supplement" in Part
III below) will advise the Company by
telephone of the following settlement
information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Book-Entry
Note, the Interest Rate and, in the case
of a Floating Rate
<PAGE>A-7
Book-Entry Note, the Base Rate, Initial
Interest Rate (if known at such time),
Index Maturity, Interest Reset Period,
Interest Reset Dates, Spread or Spread
Multiplier (if any), Minimum Interest Rate
(if any) and Maximum Interest Rate (if any).
4. Interest Payment Dates and the Interest
Payment Period.
5. Redemption Date and other redemption
provisions, if any.
6. Settlement date.
7. Price.
8. Presenting Agent's commission,
determined as provided in Section 2(a)
of the Agency Agreement.
9. Whether or not such Book-Entry Note is
an Original Issue Discount Security and,
if so, the total amount of original
issue discount ("OID"), the yield to
maturity and the initial accrual period
OID.
10. Such other terms as shall be applicable
to the Note as agreed upon by the
purchaser and the Company and not
inconsistent with the Indenture.
B. FNBC will assign a CUSIP number to the Global
Security representing such Book-Entry Note
and then advise the Company by telephone
(confirmed in writing at any time on the same
date) or electronic transmission of the
information set forth in Settlement Procedure
"A" above, such CUSIP number and the name of
the Presenting Agent. FNBC will also notify
the Presenting Agent by telephone of such
CUSIP number as soon as practicable.
C. FNBC will enter a pending deposit message
through DTC's Participant Terminal System
providing the following settlement
information to DTC (which shall route such
information to Standard & Poor's
Corporation), the Presenting Agent and, upon
request, the Trustee:
1. The information set forth in Settlement
Procedure "A".
<PAGE>A-8
2. Identification as a Fixed Rate
Book-Entry Note or a Floating Rate
Book-Entry Note.
3. Initial Interest Payment Date for such
Book-Entry Note, number of days by which
such date succeeds the related Regular
Record Date and amount of interest
payable on such Interest Payment Date.
4. The Interest Payment Period.
5. CUSIP number of the Global Security
representing such Book-Entry Note.
6. Whether or not such Global Security will
represent any other Book-Entry Note (to
the extent known at such time).
D. To the extent the Company has not already
done so, the Company will deliver to the
Trustee a Global Security in a form that has
been approved by the Company, the Agents and
the Trustee.
E. The Trustee will complete such Book-Entry
Note, stamp the appropriate legend, as
instructed by DTC, if not already set forth
thereon, and authenticate the Global Security
representing such Book-Entry Note.
F. DTC will credit such Book-Entry Note to
FNBC's participant account at DTC.
G. FNBC will enter an SDFS deliver order through
DTC's Participant Terminal System instructing
DTC to (i) debit such Book-Entry Note to
FNBC's participant account and credit such
Book-Entry Note to the Presenting Agent's
participant account and (ii) debit the
Presenting Agent's settlement account and
credit FNBC's settlement account for an
amount equal to the price of such Book-Entry
Note less the Presenting Agent's commission.
The entry of such a deliver order shall
constitute a representation and warranty by
FNBC to DTC that (i) the Global Security
representing such Book-Entry Note has been
issued and authenticated and (ii) FNBC is
holding such Global
<PAGE>A-9
Security pursuant to the Medium Term Note
Certificate Agreement between FNBC and DTC.
H. The Presenting Agent will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC (i) to debit
such Book-Entry Note to the Presenting
Agent's participant account and credit such
Book-Entry Note to the participant accounts
of the Participants with respect to such
Book-Entry Note and (ii) to debit the
settlement accounts of such Participants and
credit the settlement account of the
Presenting Agent for an amount equal to the
price of such Book-Entry Note.
I. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "G" and "H" will be settled in
accordance with SDFS operating procedures in
effect on the settlement date.
J. FNBC will, upon receipt of funds from the
Agent in accordance with Settlement Procedure
"G", wire transfer to the account of the
Company maintained at SeaFirst Bank, Seattle,
Washington, funds available for immediate use
in the amount transferred to FNBC in
accordance with Settlement Procedure "G".
K. The Presenting Agent will confirm the
purchase of such Book-Entry Note to the
purchaser either by transmitting to the
Participants with respect to such Book-Entry
Note a confirmation order or orders through
DTC's instructional delivery system or by
mailing a written confirmation to such
purchaser.
Settlement Procedures For orders of Book-Entry Notes solicited by any
and Timetables: Agent accepted by the Company for settlement on
the first Business Day after the sale date,
Settlement Procedures "A" through "K" set forth
above shall be completed as soon as possible but
not later than the respective times (New York City
time) set forth below:
<PAGE>A-10
Settlement
Procedure Time
---------- ----
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 3:00 P.M. on the day before
settlement
E 9:00 A.M. on the settlement date
F 10:00 A.M. on the settlement date
G-H 2:00 P.M. on the settlement date
I 4:45 P.M. on the settlement date
J-K 5:00 P.M. on the settlement date
If a sale is to be settled more than one Business
Day after the sale date, Settlement Procedures "A"
and "B" shall be completed as soon as practicable
but no later than 11:00 A.M. and 12:00 Noon,
respectively, and Settlement Procedures "C" and
"D" shall be completed as soon as practicable but
no later than 2:00 P.M. and 3:00 P.M.,
respectively, on the Business Day before the
settlement date. If the Initial Interest Rate for
a Floating Rate Book-Entry Note has not been
determined at the time that Settlement Procedure
"A" is completed, Settlement Procedures "B" and
"C" shall be completed as soon as such rate has
been determined but no later than 12:00 Noon and
2:00 P.M., respectively, on the Business Day
before the settlement date. Settlement Procedures
"I" and "J" are subject to extension in accordance
with any extension of Fedwire closing deadlines
and in the other events specified in SDFS
operating procedures in effect on the settlement
date.
If settlement of a Book-Entry Note is rescheduled
or canceled, FNBC will deliver to DTC, through
DTC's Participant Terminal System, a cancellation
message to such effect by no later than 2:00 P.M.
on the Business Day immediately preceding the
scheduled settlement date.
Failure to Settle: If FNBC fails to enter an SDFS
deliver order with respect to a Book-Entry Note
pursuant to Settlement Procedure "G", FNBC may
deliver to DTC, through DTC's Participant Terminal
System, as soon as practicable, a withdrawal
message instructing DTC to debit such Book-Entry
Note to FNBC's participant account. DTC will
process the withdrawal message, provided that
FNBC's participant account contains a principal
amount of the Global Security representing such
Book-Entry Note that is at
<PAGE>A-11
least equal to the principal amount to be debited.
If a withdrawal message is processed with respect
to all the Book-Entry Notes represented by a
Global Security, the Trustee will cancel such
Global Security in accordance with the Indenture
and so advise the Company and FNBC will make
appropriate entries in its records. The CUSIP
number assigned to such Global Security shall, in
accordance with CUSIP Service Bureau procedures,
be canceled and not reassigned until the
Book-Entry Notes represented by such Global
Security have matured or been redeemed. If a
withdrawal message is processed with respect to
one or more, but not all, of the Book-Entry Notes
represented by a Global Security, FNBC will
exchange such Global Security for two Global
Securities, one of which shall represent such
Book-Entry Notes as to which there has been a
withdrawal and shall be canceled immediately after
issuance and the other of which shall represent
the other Book-Entry Notes previously represented
by the surrendered Global Security and shall bear
the CUSIP number of the surrendered Global
Security.
If the purchase price for any Book-Entry Note is
not timely paid to the Participants with respect
to such Note by the beneficial purchaser thereof
(or a Person, including an indirect participant in
DTC, acting on behalf of such purchaser), such
Participants and, in turn, the Presenting Agent
may enter SDFS deliver orders through DTC's
Participant Terminal System reversing the orders
entered pursuant to Settlement Procedures "H" and
"G", respectively. Thereafter, FNBC will deliver
the withdrawal message and take the related
actions described in the preceding paragraph. If
such failure shall have occurred for any reason
other than a default by the Presenting Agent in
the performance of its obligations hereunder and
under the Agency Agreement, then the Company will
reimburse the Presenting Agent or FNBC as
applicable, on an equitable basis for the loss of
the use of the funds during the period when they
were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may
take any actions in accordance with its SDFS
operating procedures then in effect. In the event
of a failure to settle with respect to one or
more, but not all, of the Book-Entry Notes to have
been represented by a Global Security, the Trustee
will provide, in accordance with Settlement
Procedure "E", for the authentication and issuance
of a Global Security representing the other
Book-Entry Notes to
<PAGE>A-12
have been represented by such Global Security and
will make appropriate entries in its records.
PART II
Administrative Procedures for Certificated Notes
FNBC will serve as registrar and transfer agent in connection
with the Certificated Notes.
Issuance: Each Certificated Note will be dated and issued as
of the date of its authentication by the Trustee.
Each Certificated Note will bear an Original Issue
Date, which will be (i) with respect to an
original Certificated Note (or any portion
thereof), its original issuance date (which will
be the settlement date) and (ii) with respect to
any Certificated Note (or portion thereof) issued
subsequently upon transfer or exchange of a
Certificated Note or in lieu of a destroyed, lost
or stolen Certificated Note, the Original Issue
Date of the predecessor Certificated Note,
regardless of the date of authentication of such
subsequently issued Certificated Note.
Registration: Certificated Notes will be issued only in fully
registered form without coupons.
Transfers and A Certificated Note may be presented for transfer or
Exchanges: exchange at the principal corporate trust office of
the Trustee in Chicago at One First National
Plaza, Mail Suite 0126, Chicago, Illinois
60670-0126 or New York City at First Chicago Trust
Company of New York, 14 Wall Street, 8th Floor,
New York, New York 10005, Attention: Corporate
Trust Administration. Certificated Notes will be
exchangeable for other Certificated Notes having
identical terms but different authorized
denominations without service charge. Certificated
Notes will not be exchangeable for Book-Entry
Notes.
Payments of Principal FNBC will pay the principal amount of each
and Interest: Certificated Note at Maturity upon presentation of
such Certificated Note to FNBC. Such payment,
together with payment of interest due at Maturity
of such Certificated Note, will be made in funds
available for immediate use by FNBC and in turn by
the Holder of such Certificated Note. Certificated
Notes presented to FNBC at Maturity for payment
will be canceled by the Trustee in
<PAGE>A-13
accordance with the Indenture. All interest
payments on a Certificated Note (other than
interest due at Maturity) will be made by check
drawn on FNBC (or another Person appointed by
FNBC) and mailed by FNBC to the Person entitled
thereto as provided in such Note and the
Indenture; provided, however, that the holder of
U.S. $10,000,000 (or the equivalent thereof in
other currencies) or more of Certificated Notes
with similar tenor and terms will be entitled to
receive payment by wire transfer in U.S. dollars.
Following each Regular Record Date and Special
Record Date, FNBC will furnish the Company and the
Trustee with a list of interest payments to be
made on the following Interest Payment Date for
each Certificated Note and in total for all
Certificated Notes. Interest at Maturity will be
payable to the Person to whom the payment of
principal is payable. FNBC will provide monthly to
the Company lists of principal and interest, to
the extent ascertainable, to be paid on
Certificated Notes maturing (on a Maturity or
Redemption Date or otherwise) in the next month.
FNBC will be responsible for withholding taxes on
interest paid on Certificated Notes as required by
applicable law.
If any interest Payment Date for or the Maturity
of a Certificated Note is not a Business Day, the
payment due on such day shall be made on the next
succeeding Business Day and no interest shall
accrue on such payment for the period from and
after such Interest Payment Date or Maturity, as
the case may be.
Settlement Procedures: Settlement Procedures with regard to each
Certificated Note sold by the Company through any
Agent, as agent, shall be as follows:
A. The Presenting Agent will advise the Company
by telephone of the following settlement
information:
1. Name in which such Certificated Note is
to be registered ("Registered Owner").
2. Address of the Registered Owner and
address for payment of principal and
interest.
3. Taxpayer identification number of the
Registered Owner (if available).
4. Principal amount.
<PAGE>A-14
5. Maturity Date.
6. In the case of a Fixed Rate Certificated
Note, the Interest Rate and, in the case
of a Floating Rate Certificated Note,
the Initial Interest Rate (if known at
such time), Base Rate, Index Maturity,
Interest Reset Period, Interest Reset
Dates, Spread or Spread Multiplier (if
any), Minimum Interest Rate (if any) and
Maximum Interest Rate (if any).
7. Interest Payment Dates and the Interest
Payment Period.
8. Specified Currency and whether or not
the option to elect payment in a
Specified Currency applies and if the
Specified Currency is not U.S. dollars,
the authorized denominations.
9. Redemption Date and redemption
provisions, if any.
10. Settlement date.
11. Price (including currency).
12. Presenting Agent's commission,
determined as provided in Section 2(a)
of the Agency Agreement.
13. Whether or not such Certificated Note is
an Original Issue Discount Security and,
if so, the total amount of OID, the
yield to maturity and the initial
accrual period OID.
14. Such other terms as shall be applicable
to such Certificated Note as agreed upon
by the purchaser and the Company and not
inconsistent with the Indenture.
B. The Company will advise FNBC by telephone
(confirmed in writing at any time on the sale
date) or electronic transmission of the
information set forth in Settlement Procedure
"A" above and the name of the Presenting
Agent.
C. The Company will deliver to FNBC a
pre-printed four-ply
<PAGE>A-15
packet for such Certificated Note, which packet
will contain the following documents in forms
that have been approved by Company, the Agents
and the Trustee:
1. Certificated Note with customer
confirmation.
2. Stub One - For the Trustee.
3. Stub Two - For the Presenting Agent.
4. Stub Three - For the Company.
D. The Trustee will complete such Certificated
Note and will authenticate such Certificated
Note and deliver it (with the confirmation)
and Stubs One and Two to the Presenting
Agent, and the Presenting Agent will
acknowledge receipt of such Certificated Note
by stamping or otherwise marking Stub One and
returning it to the Trustee. Such delivery
will be made only against such acknowledgment
of receipt and evidence that instructions
have been given by the Presenting Agent for
payment to the account of the Company at
SeaFirst Bank, Seattle, Washington, in funds
available for immediate use, of an amount
equal to the price of such Certificated Note
less the Presenting Agent's commission. In
the event that the instructions given by the
Presenting Agent for payment to the account
of the Company are revoked, the Company will
as promptly as possible wire transfer to the
account of the Presenting Agent an amount of
immediately available funds equal to the
amount of such payment made.
E. The Presenting Agent will deliver such
Certificated Note (with the confirmation) to
the purchaser thereof against payment in
immediately available funds. The Presenting
Agent will obtain the acknowledgment of
receipt of such Certificated Note by
retaining Stub Two.
F. FNBC will send Stub Three to the Company by
first-class mail.
Settlement Procedures For orders of Certificated Notes solicited by any
Timetables: Agent, as agent, and accepted by the Company,
Settlement Procedures "A" through "F" set forth
above shall be completed on or before the
respective times (New York City time) set forth
below:
<PAGE>A-16
Settlement
Procedure Time
---------- ----
A 2:00 P.M. on the day before the
settlement date
B-C 3:00 P.M. on the day before the
settlement date
D 2:15 P.M. on the settlement date
E 3:00 P.M. on the settlement date
F 5:00 P.M. on the settlement date
Failure to Settle: If a purchaser fails to accept delivery
of and make payment for any Certificated Note, the
Presenting Agent will notify the Company and FNBC
by telephone and return such Certificated Note to
the Trustee. Upon receipt of such notice, the
Company will immediately wire transfer to the
account of the Presenting Agent an amount equal to
the amount previously credited to the account of
Company in respect of such Certificated Note. Such
wire transfer will be made on the settlement date,
if possible, and in any event not later than the
Business Day following the settlement date. If the
failure shall have occurred for any reason other
than a default by the Presenting Agent in the
performance of its obligations hereunder and under
the Agency Agreement, then the Company will
reimburse the Presenting Agent or FNBC, as
appropriate, on an equitable basis for its loss of
the use of the funds during the period when they
were credited to the account of the Company.
Immediately upon receipt of the Certificated Note
in respect of which such failure occurred, the
Trustee will cancel such Certificated Note in
accordance with the Indenture and so advise the
Company and FNBC will make appropriate entries in
its records.
PART III
Administrative Procedures Applicable to
Book-Entry Notes and Certificated Notes
Maturities: Each Note will mature on a date not less than nine
months after the settlement date for such Note.
Denominations: Notes will be issued in principal amounts of U.S.
$1,000 or any amount in excess thereof that is an
integral multiple of U.S. $1,000.
<PAGE>A-17
Interest: General. Interest, if any, on each Note will
accrue from the original issue date for the first
interest period or the last date to which interest
has been paid, if any, for each subsequent
interest period, on the Global Security
representing such Note, and will be calculated and
paid in the manner described in such Note and in
the Prospectus (as defined in the Agency
Agreement), as supplemented by the applicable
Pricing Supplement (as defined under "Preparation
of Pricing Supplement" below). Unless otherwise
specified therein, each payment of interest on a
Note will include interest accrued to but
excluding the Interest Payment Date (provided
that, in the case of Floating Rate Notes that
reset weekly, interest payments will include
accrued interest to and including the Regular
Record Date immediately preceding the Interest
Payment Date) or to but excluding Maturity (other
than a Maturity of a Fixed Rate Note occurring on
the 31st day of a month, in which case such
payment of interest will include interest accrued
to but excluding the 30th day of such month).
Interest payable at the Maturity of a Book-Entry
Note will be payable to the Person to whom the
principal of such Book-Entry Note is payable. In
the case of Book-Entry Notes, Standard & Poor's
Corporation will use the information received in
the pending deposit message described under
Settlement Procedure "C" in Part I above in order
to include the amount of any interest payable and
certain other information regarding the related
Global Security in the appropriate (daily or
weekly) bond report published by Standard & Poor's
Corporation.
Regular Record Dates. The Regular Record Date with
respect to any Interest Payment Date shall be the
date fifteen calendar days immediately preceding
such Interest Payment Date.
Interest Payment Dates on Fixed Rate Notes. Unless
otherwise specified pursuant to Settlement
Procedure "A" below, interest payments on Fixed
Rate Notes will be made semiannually on March 1
and September 1 of each year and at Maturity;
provided, however, that in the case of a Fixed
Rate Note issued between a Regular Record Date and
an Interest Payment Date, the first interest
payment will be made on the Interest Payment Date
following the next succeeding Regular Record Date
(unless the Company elects, in its sole
discretion, to pay such interest on the first
Interest Payment Date after the Original Issue
Date and, if such Fixed Rate Note is a Book-Entry
Note, such payment is made in accordance with DTC
procedures).
<PAGE>A-18
Interest Payment Dates on Floating Rate Notes.
Interest payments will be made on Floating Rate
Notes monthly, quarterly, semi-annually or
annually. Unless otherwise agreed upon, interest
will be payable, in the case of Floating Rate
Notes with a monthly Interest Payment Period, on
the third Wednesday of each month; with a
quarterly Interest Payment Period, on the third
Wednesday of March, June, September and December
of each year; with a semi-annual Interest Payment
Period on the third Wednesday of the two months
specified pursuant to Settlement Procedure "A" in
Part I or II above, as the case may be; and with
an annual Interest Payment Period, on the third
Wednesday of the month specified pursuant to
Settlement Procedure "A" in Part I or II above, as
the case may be; provided, however, that, if an
Interest Payment Date for a Floating Rate Note
would otherwise be a day that is not a Business
Day with respect to such Floating Rate Note, such
Interest Payment Date will be the next succeeding
Business Day with respect to such Floating Rate
Note, except in the case of a Floating Rate Note
for which the Base Rate is LIBOR, if such Business
Day is in the next succeeding calendar month, such
Interest Payment Date will be the immediately
preceding Business Day; provided further, however,
that, in the case of a Floating Rate Note issued
between a Regular Record Date and an Interest
Payment Date, the first interest payment will be
made on the Interest Payment Date following the
next succeeding Regular Record Date (unless the
Company elects, in its sole discretion, to pay
such interest on the first Interest Payment Date
after the Original Issue Date and, if such
Floating Rate Note is a Book-Entry Note, such
payment is made in accordance with DTC
procedures).
Notice of Interest Payment and Regular Record
Dates. On the first Business Day of January,
April, July and October of each year, FNBC will
deliver to the Company and DTC a written list of
Regular Record Dates and Interest Payment Dates
that will occur with respect to Notes during the
six-month period beginning on such first Business
Day. Promptly after each Interest Determination
Date for Floating Rate Notes, FNBC as Calculation
Agent, will notify Standard & Poor's Corporation
of the interest rates determined on such Interest
Determination Date.
Calculation of Interest: Fixed Rate Notes. Interest on Fixed
Rate Notes (including interest for partial
periods) will be calculated on the basis of a
360-day year of twelve 30-day months.
<PAGE>A-19
Floating Rate Notes. Interest rates on Floating
Rate Notes will be determined as set forth in the
form of Notes. Interest on Floating Rate Notes,
except as otherwise set forth therein, will be
calculated on the basis of actual days elapsed and
a year of 360 days, except that in the case of a
Floating Rate Note for which the Base Rate is
Treasury Rate, interest will be calculated on the
basis of the actual number of days in the year.
Procedure for Rate The Company and the Agents will discuss from time to
Setting and Posting: time the aggregate principal amount of, the issuance
price of, and the interest rates to be borne by,
Notes that may be sold as a result of the
solicitation of orders by the Agents. If the
Company decides to set prices of, and rates borne
by, any Notes in respect of which the Agents are
to solicit orders (the setting of such prices and
rates to be referred to herein as "posting") or if
the Company decides to change prices or rates
previously posted by it, it will promptly advise
the Agents of the prices and rates to be posted.
Acceptance and Unless otherwise instructed by the Company, each Agent
Rejection of Orders: will advise the Company promptly by telephone of all
orders to purchase Notes received by such Agent,
other than those rejected by it in whole or in
part in the reasonable exercise of its discretion.
Unless otherwise agreed by the Company and the
Agents, the Company has the right to accept orders
to purchase Notes and may reject any such orders
in whole or in part.
Preparation of If any order to purchase a Note is accepted by or on
Pricing Supplement: behalf of the Company, the Company will prepare a
pricing supplement (a "Pricing Supplement")
reflecting the terms of such Note and will arrange
to have such Pricing Supplement filed with the
Commission in accordance with the applicable
paragraph of Rule 424(b) under the Securities Act
of 1933, as amended (the "Act"), and will furnish
one copy thereof (and additional copies if
requested) to the Agent that presented the order
(the "Presenting Agent") at the addresses set
forth in the next paragraph. The Presenting Agent
will cause a Prospectus and Pricing Supplement to
be delivered to the purchaser of such Note.
The Company will deliver a completed Pricing
Supplement, via next day mail or telecopy to
arrive no later than 11:00 A.M. on the Business
Day following the trade date, to the Presenting
Agent at the following locations:
<PAGE>A-20
If the Presenting Agent is Salomon Brothers Inc:
Salomon Brothers Inc
8800 Hidden River Parkway
Tampa, Florida 33637
Attention: Enrique Castro
Telephone: 813-558-7165
Telecopy: 813-558-4123
If the Presenting Agent is Goldman, Sachs & Co.:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Medium-Term Note Desk
Telephone: 212-902-1482
Telecopy: 212-902-0658
If the Presenting Agent is Merrill Lynch & Co.:
Merrill Lynch & Co.
Tritech Services
4 Corporate Place
Corporate Park 287
Piscataway, New Jersey 08854
Attention: Final Prospectus Unit/
Nachman Kimerling
Telephone: 908-885-2769
Telecopy: 908-885-2774/5/6
also, for record keeping purposes, please send a copy
to:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner &
Smith Incorporated
Merrill Lynch World Headquarters
World Financial Center, North Tower
10th Floor
New York, New York 10281-1310
Attention: MTN Product Management
Telephone: 212-449-7476
Telecopy: 212-449-2234
In each instance that a Pricing Supplement is
prepared, the
<PAGE>A-21
Presenting Agent will affix the Pricing
Supplement to Prospectuses prior to their
use. Outdated Pricing Supplements (other than
those retained for files), will be destroyed.
Suspension of Subject to the Company's representations,
Solicitation; warranties and covenants contained in the Agency
Amendment or Agreement, the Company Amendment or may instruct
Supplement: the Agents to suspend at any time, for any period
of time or permanently, the solicitation of orders
to purchase Notes. Upon receipt of such
instructions, the Agents will forthwith suspend
solicitation until such time as the Company has
advised them that such solicitation may be
resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any
orders outstanding for settlement, the Company
will promptly advise the Agents, the Trustee and
FNBC whether or not such orders may be settled and
whether or not copies of the Prospectus as in
effect at the time of the suspension, together
with the appropriate Pricing Supplement, may be
delivered in connection with the settlement of
such orders. The Company will have the sole
responsibility for such decision and for any
arrangements that may be made in the event that
the Company determines that such orders may not be
settled or that copies of such Prospectus may not
be so delivered.
If the Company decides to amend or supplement the
Registration Statement (as defined in the Agency
Agreement) or the Prospectus, it will promptly
advise the Agents and furnish the Agents with the
proposed amendment or supplement and with such
certificates and opinions as are required, all to
the extent required by and in accordance with the
terms of the Agency Agreement. Subject to the
provisions of the Agency Agreement, the Company
may file with the Commission any such supplement
to the Prospectus relating to the Notes. The
Company will provide the Agents, the Trustee and
FNBC with copies of any such supplement, and
confirm to the Agents that such supplement has
been filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) under the Act.
Procedures For When the Company has determined to change the
Rate Changes: interest rates of Notes being offered, it will
promptly advise the Agents and the Agents will
forthwith suspend solicitation of orders. The
Agents will telephone the Company with
recommendations as
<PAGE>A-22
to the changed interest rates. At such time as the
Company has advised the Agents of the new interest
rates, the Agents may resume solicitation of
orders. Until such time only "indications of
interest" may be recorded.
Delivery of A copy of the Prospectus and a Pricing Supplement
Prospectus: relating to a Note must accompany or precede the
earliest of any written offer of such Note,
confirmation of the purchase of such Note and
payment for such Note by its purchaser. If notice
of a change in the terms of the Notes is received
by the Agents between the time an order for a Note
is placed and the time written confirmation
thereof is sent by the Presenting Agent to a
customer or its agent, such confirmation shall be
accompanied by a Prospectus and Pricing Supplement
setting forth the terms in effect when the order
was placed. Subject to "Suspension of
Solicitation; Amendment or Supplement" above, the
Presenting Agent will deliver a Prospectus and
Pricing Supplement as herein described with
respect to each Note sold by it. The Company will
make such delivery if such Note is sold directly
by the Company to a purchaser (other than an
Agent).
Confirmation: For each order to purchase a Note solicited by any
Agent and accepted by or on behalf of the Company,
the Presenting Agent will issue a confirmation to
the purchaser, with a copy to the Company, setting
forth the details set forth above and delivery and
payment instructions.
Settlement: The receipt by the Company of immediately available
funds in payment for a Note and the authentication
and issuance of the Global Security representing
such Note shall constitute "settlement" with
respect to such Note. All orders accepted by the
Company will be settled on the third Business Day
following the date of sale of such Note pursuant
to the timetable for settlement set forth below
unless the Company and the purchaser agree to
settlement on another day that shall be no earlier
than the next Business Day following the date of
sale.
Trustee Not to Nothing herein shall be deemed to require the
Risk Funds: Trustee to risk or expend its own funds in
connection with any payment to the Company, the
Agents or any purchaser or holder of Notes, it
being understood by all parties that payments made
by the Trustee to the Company, the Agents or the
purchaser shall be
<PAGE>A-23
made only to the extent that funds are provided to
the Trustee for such purpose.
Authenticity of The Company will cause the Trustee to furnish the
Signatures: Agents from time to time with the specimen
signatures of each of the Trustee's officers,
employees or agents who has authorized by the
Trustee to authenticate Notes, but no Agent will
have any obligation or liability to the Company or
the Trustee in respect of the authenticity of the
signature of any officer, employee or agent of the
Company or the Trustee on any Note.
Payment of Each Agent shall forward to the Company, on a
Expenses: monthly basis, a statement of the out-of-pocket
expenses incurred by such Agent during that month
that are reimbursable to it pursuant to the terms
of the Agency Agreement. The Company will remit
payment to the Agents currently on a monthly
basis.
Advertising Costs: The Company will determine with the Agents the
amount of advertising that may be appropriate in
soliciting orders to purchase the Notes.
Advertising expenses will be paid by the Company.
Periodic Statements: Periodically, FNBC will send to the Company a
statement setting forth the principal amount of
Notes Outstanding as of that date and setting
forth a brief description of any sales of Notes
that the Company has advised FNBC but that have
not yet been settled.
<PAGE>
EXHIBIT B
---------
FOREIGN CURRENCY AMENDMENT NO. [_____]
TO SELLING AGENCY AGREEMENT DATED [_____], 1996
---------------------------------------------------
[Insert Title of Foreign Currency]
The undersigned hereby agree that for the purposes of the
issuance and sale of Notes denominated in [title of currency or currency
unit] (the "Applicable Foreign Currency") pursuant to the Selling Agency
Agreement dated [_____], 1996 between Pacific Telecom, Inc. and each of
Salomon Brothers Inc, Goldman, Sachs & Co. and Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated (the "Agency Agreement"), the
following additions and modifications shall be made to the Agency
Agreement. The additions and modifications adopted hereby shall be of the
same effect for the sale under the Agency Agreement of all Notes
denominated in the Applicable Foreign Currency, whether offered on an
agency or principal basis, but shall be of no effect with respect to Notes
denominated in any currency or currency unit other than the Applicable
Foreign Currency.
Except as otherwise expressly provided herein, all terms used
herein that are defined in the Agency Agreement shall have the same
meanings as in the Agency Agreement. The terms Agent or Agents, as used in
the Agency Agreement, shall be deemed to refer only to the undersigned
Agent[s] for purposes of this Amendment.
[Insert appropriate additions and modifications to the Agency
Agreement (for example, to opinions of counsel, conditions to obligations
and settlement procedures, etc.).]
__________, 199_
Pacific Telecom, Inc.
By
---------------------------------
Name:
Title:
[Name(s) of Agent(s) participating in the offering
of Notes in the Applicable Foreign Currency]
<PAGE>B-2
By
---------------------------------
Name:
Title:
<PAGE>
EXHIBIT C
---------
AGREEMENT
____________, 199_
[Name and address of agent]
Re: Medium-Term Notes, Series C
Pricing Supplement Number: ___
Settlement Date: ____________, 199_
(See Attached Term Sheet)
------------------------------------
Ladies and Gentlemen:
Reference is made to the Selling Agency Agreement dated [_____],
1996 between Pacific Telecom, Inc. (the "Company") and each of Salomon
Brothers Inc, Goldman, Sachs & Co. and Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated (the "Agreement") relating to up to
$200,000,000 aggregate principal amount of Medium-Term Notes, Series C (the
"Notes") to be offered from time to time by the Company. The provisions of
the Agreement (a copy of which has been previously provided to each of you)
are hereby incorporated by reference and each of the representations and
warranties set forth therein shall be deemed to have been made to you as of
the date hereof. Subject to the terms as set forth therein, the Company
hereby appoints you as an Agent (as such term is defined in the Agreement)
of the Company for the purposes of soliciting one offer to purchase Notes
from the Company containing the terms as set forth in the above-referenced
Pricing Supplement. This appointment is effective as to and extends only to
the one transaction that you are presenting to the Company (see attached
Term Sheet) and the Agreement shall automatically be terminated as to you
upon the earlier to occur of (i) payment made in full to the Company for
the Notes sold pursuant to the offer so presented and (ii) the Company or
you determine not to proceed with such transaction. Upon such termination
of the Agreement by the Company, neither you nor the Company shall have any
liability to the other except as provided in those sections of the
Agreement referenced in Section 8(c) thereof. You agree
<PAGE>C-2
to be bound by, and comply with, all of the provisions of the Agreement
applicable to Agents thereunder.
[As a condition precedent to your obligation to consummate the
transaction referred to above, you shall receive the following: (i) a
certificate of the Company dated [insert recent date] pursuant to [Section
5(f)] [Section 4(i)] of the Agreement; (ii) the opinion or opinions of
counsel dated [insert recent date or most recent periodic update] pursuant
to [Sections 5(d) and 5(e)] [Section 4(j)] of the Agreement; (iii) a letter
from Deloitte & Touche LLP dated [insert recent date or most recent
periodic update] delivered pursuant to Section [Section 5(g)] [Section
4(k)] of the Agreement; and (iv) a copy of the resolutions adopted by the
Company with respect to the form of Note evidencing the Notes described in
the above-referenced Pricing Supplement certified by an officer of the
Company.]*
This letter will be governed by and construed in accordance with
the laws of the State of New York.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement between the Company and you.
Very truly yours,
Pacific Telecom, Inc.
By:
------------------------------
Name:
Title:
The foregoing letter is
hereby confirmed and accepted
as of the date hereof:
By:
------------------------------
Name:
Title:
<PAGE>C-3
- -----------------------
* This provision is to be negotiated between the Company and such agent
at the time of the trade.
<PAGE>
EXHIBIT D
---------
Pacific Telecom, Inc.
Medium-Term Notes, Series C
Due Nine Months or More from Date of Issue
TERMS AGREEMENT
____________, 199_
Pacific Telecom, Inc.
805 Broadway
P.O. Box 9901
Vancouver, Washington 98668
Attention:
Subject in all respects to the terms and conditions of the
Selling Agency Agreement dated [_____], 1996 between you and each of
Salomon Brothers Inc, Goldman, Sachs & Co. and Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated (the "Agreement"), the
undersigned agrees to purchase the following Notes:
Aggregate Principal Amount: U.S. $
Interest Rate:
Date of Maturity:
Interest Payment Dates:
<PAGE>D-2
Regular Record Dates:
Specified Currencies:
Discount: % of Principal Amount
Purchase Price: % of Principal Amount [plus accrued interest
from , 199 ]
Purchase Date and Time:
Place for Delivery of Notes
and Payment Therefor:
Method of Payment:
Modification, if any, in
the requirements to
deliver the documents
specified in Sections 5(d),
5(e), 5(f) and 5(g)
of the Agreement:
Period during which additional
Notes may not be sold pursuant
to Section 4(l) of the Agreement:
[Purchaser]
By: _________________________
Accepted:
By:
--------------------
Title:
<PAGE>
EXHIBIT E
---------
ACKNOWLEDGMENT
--------------
The undersigned hereby acknowledges that [it] is the purchaser of
U.S. $[__________] of Medium-Term Notes, Series C (the "Notes") of Pacific
Telecom, Inc. (the "Company") and that [it] has been furnished with a
Prospectus dated [_____], 1996 (as supplemented by a Prospectus Supplement
dated [_____], 1996 and a Pricing Supplement dated _____) of the Company
relating to the Notes. The undersigned hereby also acknowledges that none
of Salomon Brothers Inc ("Salomon"), Goldman, Sachs & Co. ("Goldman") and
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill") (or any affiliate thereof) has acted as agent or underwriter in
connection with the sale of the Notes purchased by the undersigned and that
none of Salomon, Goldman and Merrill (or any affiliate thereof) has made
any offer or otherwise solicited the undersigned with respect to the Notes.
IN WITNESS WHEREOF, the undersigned has executed this
Acknowledgment this ___ day of _____, 199_.
[Name of company, if applicable]
By
-----------------------
-----------------------
[Title, if applicable]
<PAGE>
Exhibit 4(b)
PACIFIC TELECOM, INC.
CERTIFICATE OF AUTHORIZED OFFICER
The undersigned, Brian M. Wirkkala, being the Vice President and
Treasurer of Pacific Telecom, Inc., a Washington corporation (the
"Company"), hereby certifies on behalf of the Company that:
(1) This is a certificate contemplated by Sections 301 and 102 of the
Indenture dated as of September 20, 1991, as amended and supplemented (the
"Indenture"), between the Company and The First National Bank of Chicago,
as Trustee (the "Trustee");
(2) The undersigned is an Authorized Officer;
(3) The undersigned officer has read the covenants and conditions and
definitions relating thereto in the Indenture with respect to the proposed
issuance of a new series of Securities thereunder;
(4) The undersigned officer has examined and is familiar with (a) the
Notes (defined below) and (b) the opinion of Stoel Rives LLP delivered
herewith;
(5) In the opinion of the undersigned officer, the undersigned has
also examined or caused to be examined such other documents and satisfied
himself as to such other matters as he has deemed necessary to enable him
to express an informed
<PAGE>2
opinion as to whether those covenants and conditions have been complied
with;
(6) In the opinion of the undersigned officer, the covenants and,
except as specifically set forth below, all conditions precedent provided
for in the Indenture relating to the proposed issuance of a new series of
Securities thereunder have been complied with; and
(7) There has been established a series of unsecured and
unsubordinated debt to be issued pursuant to the Indenture, the title of
which is Medium-Term Notes, Series C (the "Notes"), pursuant to the
resolutions adopted by the Board of Directors of the Company on December
28, 1995 (the "Resolutions") and this Certificate of Authorized Officer (as
authorized by the Resolutions), and the following terms for the Notes have
been established pursuant to the actions of an Authorized Officer who is
authorized under the Resolutions to establish such terms:
(a) The form for each Note that will bear interest at a fixed
rate (the "Fixed Rate Notes") shall be as set forth in the form of Fixed
Rate Note attached as Exhibit A;
(b) The form for each Note that will bear interest at a floating
rate (the "Floating Rate Notes") shall be as set forth in the form of
Floating Rate Note attached as Exhibit B;
(c) The Notes may be issued pursuant to the Indenture in an
aggregate principal amount of up to U.S.
<PAGE>3
$200,000,000 (or the equivalent thereof in other currencies or composite
currencies);
(d) The principal amount of the Notes shall be payable on such
date or dates established prior to the issuance of such Notes from time to
time pursuant to the Resolutions, which will be evidenced by instructions
of an Authorized Representative as contemplated by Section 311 of the
Indenture;
(e) The Fixed Rate Notes shall bear interest at such rate or
rates established prior to the issuance of such Fixed Rate Notes from time
to time pursuant to the Resolutions, which will be evidenced by
instructions of an Authorized Representative as contemplated by Section 311
of the Indenture and, unless otherwise provided in instructions of an
Authorized Representative, the Interest Payment Dates for the Fixed Rate
Notes shall be March 1 and September 1 of each year;
(f) The Floating Rate Notes shall bear interest based upon
"LIBOR," "Treasury Rate," "Commercial Paper Rate," "CD Rate," "Prime Rate,"
"CMT Rate" or other "Base Rate," with such "Spread" or "Spread Multiplier,"
and shall have such "Initial Interest Rates," "Interest Payment Dates,"
"Record Dates," "Interest Reset Periods," "Interest Payment Periods,"
"Maximum Interest Rate," "Minimum Interest Rate," "Index Maturity" and
"Interest Reset Dates" (all such terms as defined in the attached Exhibit
B) in each case as established prior to the issuance of such Notes from
time to time pursuant to the Resolutions, which will be evidenced by
instructions of an
<PAGE>4
Authorized Representative as contemplated by Section 311 of the Indenture;
(g) Unless otherwise provided in instructions of an Authorized
Representative as contemplated by Section 311 of the Indenture with respect
to any Note, interest shall accrue on each Note from the date of issuance
thereof ("Original Issue Date");
(h) Unless otherwise provided in instructions of an Authorized
Representative as contemplated by Section 311 of the Indenture, the Regular
Record Date with respect to any Interest Payment Date for a Note shall be
the date fifteen calendar days (whether or not a Business Day) immediately
preceding such Interest Payment Date;
(i) Unless otherwise provided in instructions of an Authorized
Representative as contemplated by Section 311 of the Indenture, the first
interest payment on any Note with an Original Issue Date between a Regular
Record Date and an Interest Payment Date will be made on the Interest
Payment Date following the next succeeding Regular Record Date to the
registered owner on such next Regular Record Date (subject to the right of
the Company to elect, in its sole discretion, to pay such interest on the
first Interest Payment Date after the Original Issue Date);
(j) The First National Bank of Chicago, at its Corporate Trust
Office in Chicago, Illinois, or at its office in The City of New York
designated for such purpose, shall be
<PAGE>5
the Company's Paying Agent and Security Registrar for the Notes; such
offices shall be the place where the principal of (and premium, if any) and
interest on the Notes shall be payable, the Notes may be surrendered for
registration of transfer, the Notes may be surrendered for exchange and
notices and demands to or upon the Company in respect of the Notes and the
Indenture may be served;
(k) Redemption dates and terms, if any, for any of the Notes
shall be established prior to the issuance of such Notes from time to time
pursuant to the Resolutions, which will be evidenced by instructions of an
Authorized Representative as contemplated by Section 311 of the Indenture;
provided that, if no redemption dates are established with respect to a
Note, such Note shall not be redeemable prior to Maturity;
(l) The Notes shall be issuable in denominations of U.S. $1,000
and integral multiples of U.S. $1,000 in excess thereof, unless otherwise
provided in instructions of an Authorized Representative as contemplated by
Section 311 of the Indenture with respect to any Note;
(m) Payments of principal of (and premium, if any) and interest
payable on the Notes will be made at the Trustee's Corporate Trust Office
in Chicago, Illinois or the Trustee's office in The City of New York
designated for such purpose; provided that interest (other than interest
payable at Maturity) may, at the Company's option, be paid (i) by check
mailed to the address of the person entitled thereto as it
<PAGE>6
appears in the Security Register as of the Record Date or (ii) by wire
transfer to an account maintained by such person with a bank located in the
United States; provided that proper wire transfer instructions have been
received by the Trustee by the Regular Record Date;
(n) The automated issuance system described in Section 311 of the
Indenture shall be available for the Notes and all issuance instructions
for the Notes may be given by an Authorized Representative as contemplated
by Section 311 of the Indenture;
(o) The dates within 15 days of which lists of Holders of
Original Issue Discount Securities are to be furnished to the Trustee,
pursuant to Section 701(a) of the Indenture, shall be each March 1 and
September 1; and
(p) Except for Foreign Currency Notes, upon issuance, the Notes
will be represented by one or more Global Securities that will be deposited
with, or on behalf of, The Depository Trust Company, New York, New York.
Capitalized terms used and not otherwise defined herein shall
have the meanings set forth in the Indenture.
IN WITNESS WHEREOF, the Company has caused this Certificate to be
executed this _____ day of _______________, 1996.
PACIFIC TELECOM, INC.
By:
-------------------------------
Brian M. Wirkkala, Vice
President and Treasurer
<PAGE>
EXHIBIT A
[FACE]
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY ("DEPOSITARY") (55 WATER STREET, NEW YORK, NEW
YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR A SUCCESSOR OF THE DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR.]
[If applicable, insert -- THIS NOTE IS AN "ORIGINAL ISSUE
DISCOUNT NOTE." FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE UNITED
STATES INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY SUCCESSOR THERETO,
THE ISSUE PRICE OF THIS NOTE IS [U.S. $] ( % OF ITS PRINCIPAL AMOUNT), THE
AMOUNT OF ORIGINAL ISSUE DISCOUNT IS [U.S. $] _________, THE ISSUE DATE IS
_______________, 199__, AND THE YIELD TO MATURITY ON THE ISSUE DATE IS %.
THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ALLOCABLE TO THE SHORT ACCRUAL
PERIOD, IF ANY, IS [U.S. $] , DETERMINED ON THE BASIS OF THE APPROXIMATE
METHOD.]
REGISTERED REGISTERED
CUSIP No. __________________
PACIFIC TELECOM, INC.
Fixed Rate Medium-Term Note, Series C
ORIGINAL ISSUE DATE: MATURITY DATE:
INTEREST RATE: PRINCIPAL AMOUNT:
SPECIFIED CURRENCY:
[REDEMPTION DATE:] [REDEMPTION PREMIUM:]
[If applicable - insert table of Optional Redemption Prices]
<PAGE>2
PACIFIC TELECOM, INC., a corporation duly organized and existing
under the laws of Washington (herein called the "Company," which term
includes any successor Person under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to
________________________ or registered assigns, the principal sum of
_______________ on the Maturity Date shown above, and to pay interest
thereon from [the Original Issue Date shown] or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semiannually in arrears on [March 1 and September 1] in each year
commencing with the Interest Payment Date immediately following the
Original Issue Date shown above (unless the Original Issue Date shown above
is after [a Regular Record Date] and on or before the [corresponding
Interest Payment Date], in which case the interest payments will commence
on the next succeeding [Interest Payment Date], unless the Company elects,
in its sole discretion, to pay such interest on the first Interest Payment
Date following the Original Issue Date), at the rate per annum equal to the
Interest Rate shown above, until the principal hereof is paid or made
available for payment. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the
Indenture referred to 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 the [fifteenth day] [________ day] (whether or not a Business Day)
next preceding such Interest Payment Date [exceptions, if any]. Except as
otherwise provided in the Indenture, 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 Company, notice thereof shall be
given to Holders of Securities of this series not less than 10 days prior
to such Special Record Date, such Special Record Date to be not less than
five days preceding the date of payment of the Defaulted Interest, 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. Payment of the
principal of (and premium, if any) and interest on this Security will be
made at the office or agency of the Company maintained for that purpose in
__________________, 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 or at such other offices or agencies as the Company may
designate; provided, however, that at the option of
<PAGE>3
the Company payment of interest may be made by [United States dollar] check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or at the option of the Company, by wire
transfer to an account maintained by such Person with a bank in the United
States (so long as the Trustee has received proper wire transfer
instructions in writing by the Regular Record Date next preceding such
Interest Payment Date, which instructions shall remain in full force until
changed prior to a Regular Record Date). [Interest on this Security shall
be computed on the basis of a 360-day year of twelve 30-day months.]
Interest on overdue principal and (to the extent permitted by law) overdue
interest shall accrue at the annual rate of 1% plus the Interest Rate
specified above.
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, directly or through an
Authenticating Agent, by manual signature of an authorized officer, 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:
TRUSTEE'S CERTIFICATE OF PACIFIC TELECOM, INC.
AUTHENTICATION:
This is one of the Securities
of the series designated
herein referred to in the By
within-mentioned Indenture. ------------------------
Attest:
The First National Bank
of Chicago, as Trustee -------------------------------
By [Seal]
--------------------------
Authenticating Agent
By
----------------------
Authorized Officer
<PAGE>4
[Form of Reverse]
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 September 20, 1991
(herein, as amended and supplemented from time to time, called the
"Indenture"), between the Company and The First National Bank of Chicago,
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.
This Security may be redeemed prior to its Stated Maturity, at
the option of the Company on and after the Redemption Date shown on the
face hereof, in whole or in part in increments of $1,000 at a redemption
price equal to 100 percent of the principal amount to be redeemed, plus the
applicable Redemption Premium, if any, shown on the face hereof, together
with interest thereon accrued to, but excluding, the Redemption Date;
provided, however, that if no such Redemption Date is so shown, then this
Security may not be redeemed prior to its Stated Maturity.
Notice of redemption will be given by mail to Holders of
Securities, not less than 30 nor more than 90 days prior to the date fixed
for redemption, all as provided in the Indenture. 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.
[Insert provisions regarding redemption, repurchase or repayment
pursuant to any sinking fund or analogous provision or at the option of the
holder, if applicable.]
The Indenture contains provisions for defeasance of the entire
indebtedness of this Security upon compliance by the Company with certain
conditions set forth therein.
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.
<PAGE>5
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 a majority 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 herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this
Security.
As set forth in, and subject to, the provisions of the Indenture,
no Holder of any Security of this series will have any right to institute
any proceeding with respect to the Indenture or for any remedy thereunder,
unless such Holder shall have previously given to the Trustee written
notice of a continuing Event of Default with respect to this series, the
Holders of not less than 25% in principal amount of the Outstanding
Securities of this series shall have made written request, and offered
reasonable indemnity, to the Trustee to institute such proceeding as
trustee, and the Trustee shall not have received from the Holders of a
majority in principal amount of the Outstanding Securities of this series a
direction inconsistent with such request and shall have failed to institute
such proceeding within 60 days; provided, however, that such limitations do
not apply to a suit instituted by the Holder hereof for the enforcement of
payment of the principal of (and premium, if any) or interest on this
Security on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Security at the times, place(s) and
rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable 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
<PAGE>6
premium, if any) and interest on this Security are payable, duly endorsed,
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 authorized in writing, and thereupon one or more new
Securities of this series of any authorized denominations and of a like
aggregate principal amount and tenor, 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 [$1,000] and any integral
multiples [of $1,000 in excess] 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 and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
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.
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 is 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.
This Security shall be construed in accordance with and governed
by the laws of the State of New York.
---------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations.
<PAGE>7
TEN COM -- as tenants in common UNIF GIFT MIN ACT --
TEN ENT -- as tenants by the
entireties ___________ Custodian
JT TEN -- as joint tenants (Cust)
with right of
survivorship and not _____________
as tenants in common (Minor)
Under Uniform Gifts
to Minors Act
-------------
(State)
Additional abbreviations may also be used though not in the above
list.
---------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE
--------------
[ ]
---------- -------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP
CODE OF ASSIGNEE
- --------------------------------------------------------------------------
- --------------------------------------------------------------------------
the within Security and all rights thereunder, hereby irrevocably
constituting and appointing
Attorney
to transfer said Security on the books of the Company, with full
power of substitution in the premises.
Dated: _________________
--------------------------------------
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
the within instrument in every
particular, without alteration or
enlargement, or any change
whatever.
<PAGE>
EXHIBIT B
[FACE]
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY ("DEPOSITARY") (55 WATER STREET, NEW YORK, NEW
YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR A SUCCESSOR OF THE DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR.]
[If applicable, insert -- THIS NOTE IS AN "ORIGINAL ISSUE
DISCOUNT NOTE." FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE UNITED
STATES INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY SUCCESSOR THERETO,
THE ISSUE PRICE OF THIS NOTE IS [U.S. $] _______________ (__________% OF
ITS PRINCIPAL AMOUNT), THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS [U.S. $] ,
THE ISSUE DATE IS _________________________, 199__ AND THE YIELD TO
MATURITY ON THE ISSUE DATE IS %. THE AMOUNT OF ORIGINAL ISSUE DISCOUNT
ALLOCABLE TO THE SHORT ACCRUAL PERIOD, IF ANY, IS [U.S. $] , DETERMINED ON
THE BASIS OF THE APPROXIMATE METHOD.]
REGISTERED REGISTERED
CUSIP No. ______________
PACIFIC TELECOM, INC.
Floating Rate Medium-Term Note, Series C
ORIGINAL ISSUE DATE INITIAL INTEREST RATE: %
MATURITY DATE*: SPREAD: +/-
INDEX MATURITY: SPREAD MULTIPLIER: %
CALCULATION AGENT:
SPECIFIED CURRENCY:
- -------------------------
* Shall be an Interest Payment Date.
<PAGE>2
INTEREST RATE BASIS: [ ] LIBOR [ ] TREASURY RATE
[ ] COMMERCIAL PAPER RATE [ ] PRIME RATE
[ ] CD RATE [ ] CMT RATE
IF INTEREST RATE BASIS IS CMT RATE:
DESIGNATED CMT TELERATE PAGE:
[7055]
[7052] IF 7052: [ ] WEEK
[ ] MONTH
MAXIMUM INTEREST RATE: % INTEREST PAYMENT PERIOD: . . . .
(monthly, quarterly, semiannually
or annually)
MINIMUM INTEREST RATE: % INTEREST RATE RESET PERIOD: . . .
(weekly, monthly, quarterly,
semiannually or annually)
[REDEMPTION DATE:]
INTEREST RESET DATES: [REDEMPTION PREMIUM:]
INTEREST PAYMENT DATES:
[If applicable - insert table of Optional Redemption Prices]
PACIFIC TELECOM, INC., a corporation duly organized and existing
under the laws of Washington (herein called the "Company," which term
includes any successor Person under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to
______________________ ________________________________________ or
registered assigns, the principal sum of ____________ on the Maturity Date
shown above, and to pay interest thereon from [the Original Issue Date]
shown above or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, in arrears on the Interest Payment
Dates set forth above, commencing with the Interest Payment Date
immediately following the Original Issue Date shown above (unless the
Original Issue Date shown above is after a Regular Record Date and on or
before the immediately following Interest Payment Date in which case
interest payments will commence on the next succeeding Interest Payment
Date unless the Company elects, in its sole discretion, to pay such
interest on the first Interest Payment Date after the Original Issue Date
shown above), at the rate per annum determined in accordance with the
provisions on the reverse hereof, depending on the Interest Rate Basis set
forth above, until the principal hereof is paid or made available for
payment. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in the Indenture referred to
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
<PAGE>3
of business on the Regular Record Date for such interest, which shall be
the [fifteenth day] (whether or not a Business Day) next preceding such
Interest Payment Date; provided, however, that interest payable on the
Maturity Date shown above will be payable to the Person to whom the
principal hereof shall be payable. Except as otherwise provided in the
Indenture, 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 Company, notice of which shall be given to Holders of
Securities of this series not less than 15 days prior to such Special
Record Date, such Special Record Date to be not less than five days
preceding the date of payment of the Defaulted Interest, 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. Payment of the principal of (and
premium, if any) and interest on this Security will be made at the office
or agency of the Company maintained for that purpose in
_____________________________ 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 or at such other offices or agencies as the
Company may designate; provided, however, that at the option of the Company
payment of interest may be made by [United States dollar] check mailed to
the address of the Person entitled thereto as such address shall appear in
the Security Register or at the option of the Company, by wire transfer to
an account maintained by such Person with a bank in the United States (so
long as the Trustee has received proper wire transfer instructions in
writing by the Regular Record Date next preceding such Interest Payment
Date, which instructions shall remain in full force until changed prior to
a Regular Record Date). Interest on overdue principal and (to the extent
permitted by law) overdue interest shall accrue at the annual rate of 1%
plus the interest rate specified above.
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, directly or through an
Authenticating Agent, by manual signature of an authorized officer, this
Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
<PAGE>4
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated:
TRUSTEE'S CERTIFICATE OF PACIFIC TELECOM, INC.
AUTHENTICATION:
This is one of the Securities By
of the series designated ------------------------
herein referred to in the
within-mentioned Indenture. Attest:
The First National Bank
of Chicago, as Trustee --------------------------
By
----------------------------
Authenticating Agent
By [Seal]
----------------------------
Authorized Officer
<PAGE>5
[Form of Reverse]
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 September 20, 1991 (herein, as
amended and supplemented from time to time, called the "Indenture"),
between the Company and The First National Bank of Chicago, 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.
[Commencing with the first Interest Reset Date specified on the face
hereof following the Original Issue Date specified on the face hereof, the
rate of interest will be reset daily, weekly, monthly, quarterly,
semi-annually or annually, as specified on the face hereof under Interest
Rate Reset Period.] [The Interest Reset Date will be, in the case of
Securities which reset daily, each Business Day (as defined below); in the
case of other securities (other than Treasury Rate Securities) which reset
weekly, Wednesday of each week; in the case of Treasury Rate Securities
which reset weekly, Tuesday of each week (except as provided below); in the
case of Securities which reset monthly, the third Wednesday of each month;
in the case of Securities which reset quarterly, the third Wednesday of
March, June, September and December; in the case of Securities which reset
semi-annually, the third Wednesday of two months of each year, as specified
on the face hereof; and in the case of Securities which reset annually, the
third Wednesday of one month of each year, as specified on the face
hereof]; provided, however, that (i) the interest rate in effect from the
Original Issue Date to the first Interest Reset Date specified on the face
hereof will be the Initial Interest Rate as set forth on the face hereof
and (ii) [the interest rate in effect for the ten days immediately prior to
the Maturity Date will be that in effect on the tenth day preceding such
Maturity Date]. If any Interest Reset Date specified on the face hereof
would otherwise be a day that is not a Business Day, the Interest Reset
Date shall be postponed to the next day that is a Business Day, except that
if the rate of interest on this Security shall be determined on the basis
of LIBOR and such Business Day is in the next succeeding calendar month,
such Interest Reset Date shall be the immediately preceding Business Day.
If an auction date shall fall on any Interest Reset Date for a Treasury
Rate Security, then such
<PAGE>6
Interest Reset Date shall instead be the first Business Day immediately
following such auction date.
The Interest Determination Date pertaining to an Interest Reset Date
if the rate of interest on this Security shall be determined on the basis
of the Commercial Paper Rate (the "Commercial Paper Interest Determination
Date") the CD Rate (the "CD Rate Interest Determination Date"), the Prime
Rate (the "Prime Rate Interest Determination Date") and the CMT Rate (the
"CMT Rate Interest Determination Date") will be the second Business Day
next preceding such Interest Reset Date. The Interest Determination Date
pertaining to an Interest Reset Date. if the rate of interest on this
Security shall be determined on the basis of LIBOR (the "LIBOR Interest
Determination Date") will be the second London Banking Day preceding such
Interest Reset Date. "London Banking Day" means any day on which dealings
in deposits in U.S. Dollars are transacted in the London interbank market.
The Interest Determination Date pertaining to an Interest Reset Date if the
rate of interest on this Security shall be determined on the basis of the
Treasury Rate (the "Treasury Interest Determination Date") will be the day
of the week in which such Interest Reset Date falls on which Treasury bills
would normally be auctioned. Treasury bills are usually sold at auction on
Monday of each week, unless that day is a legal holiday, in which case the
auction is usually held on the following Tuesday, except that such auction
may be held on the preceding Friday. If, as the result of a legal holiday,
an auction is so held on the preceding Friday, such Friday will be the
Treasury Interest Determination Date pertaining to the Interest Reset Date
occurring in the next succeeding week. If an auction date shall fall on any
Interest Reset Date for a Treasury Rate Security, then such Interest Reset
Date shall instead be the first Business Day immediately following such
auction date.
[The Calculation Date, where applicable, pertaining to any Interest
Determination Date is the earlier of (i) the tenth calendar day after such
Interest Determination Date or if any such day is not a Business Day, the
next succeeding Business Day and (ii) the Business Day preceding the
applicable Interest Payment Date or date of maturity, as the case may be.]
If any Interest Payment Date specified on the face hereof would
otherwise be a day that is not a Business Day, the Interest Payment Date
shall be postponed to the next day that is a Business Day, except that if
the rate of interest on this Security shall be determined on the basis of
LIBOR, and such Business Day is in the next succeeding calendar month, such
Interest Payment Date shall be the immediately preceding Business Day.
"Business Day" means any day that is not a Saturday or Sunday and that (a)
is not a day on which banking institutions are generally authorized or
obligated by law to be closed in The
<PAGE>7
City of New York and (b) with respect to LIBOR Notes, is a London Banking
Day.
[Interest payments for this Security will include interest accrued
to, but excluding, the Interest Payment Dates]; [provided, however, that if
the Interest Reset Dates with respect to this Security are daily or weekly,
interest payable on any Interest Payment Date, other than interest payable
on any date on which principal for this Security is payable (which will
include interest accrued to, but excluding, such payment date), will only
include interest accrued to and including the next preceding Regular Record
Date.] Accrued interest from the Original Issue Date specified on the face
hereof or from the last date to which interest has been paid is calculated
by multiplying the face amount hereof by an accrued interest factor. This
accrued interest factor is computed by adding the interest factors
calculated for each day from the Original Issue Date, or from the last date
to which interest has been paid, to the date for which accrued interest is
being calculated. [The interest factor for each such day is computed by
dividing the interest rate applicable to such date by 360, in the case of
the Commercial Paper Rate, LIBOR, the CD Rate or the Prime Rate, or by the
actual number of days in the year, in the case of the Treasury Rate and the
CMT Rate.]
The Calculation Agent will, upon the request of the holder of this
Security, provide to such holder the interest rate then in effect and, if
different, the interest rate which will become effective as a result of a
determination made on the most recent Interest Determination Date. Subject
to applicable provisions of law and except as specified herein, on each
Interest Reset Date the rate of interest on this Security shall be the rate
determined in accordance with the applicable heading below. All
determinations of interest rates by the Calculation Agent shall, in the
absence of manifest error, be conclusive for all purposes and binding on
the Holder of this Security.
Commercial Paper Rate. If the Interest Rate Basis specified on
the face hereof is the Commercial Paper Rate, the interest rate on this
Security shall equal the rate calculated with reference to the Commercial
Paper Rate, adjusted by the addition or subtraction of the Spread, if any,
specified on the face hereof, and/or by multiplication by the Spread
Multiplier, if any, specified on the face hereof. ["Commercial Paper Rate"
means the Money Market Yield (as defined below) of the rate on each
Commercial Paper Interest Determination Date for commercial paper having
the Index Maturity shown on the face hereof as such rate is published by
the Board of Governors of the Federal Reserve System in "Statistical
Release H.15(519), Selected Interest Rates", or any successor publication
of the Board of Governors of the Federal Reserve System ("H.15(519)"),
under the
<PAGE>8
heading "Commercial Paper". In the event that such rate is not
published by 3:00 P.M., New York City time, on the Calculation Date
pertaining to such Commercial Paper Interest Determination Date, then the
Commercial Paper Rate shall be the Money Market Yield of the rate on that
Commercial Paper Interest Determination Date for commercial paper having
the Index Maturity specified on the face hereof as published by the Federal
Reserve Bank of New York in its daily statistical release, "Composite 3:30
P.M. Quotations for U.S. Government Securities" ("Composite Quotations")
under the heading "Commercial Paper". If by 3:00 P.M., New York City time,
on such Calculation Date such rate is not yet published in either H.15(519)
or Composite Quotations, the Commercial Paper Rate for that Commercial
Paper Interest Determination Date shall be calculated by the Calculation
Agent and shall be the Money Market Yield of the arithmetic mean of the
offered rates of three leading dealers of commercial paper in The City of
New York selected by the Calculation Agent as of 11:00 A.M., New York City
time, on that Commercial Paper Interest Determination Date, for commercial
paper having the Index Maturity specified on the face hereof placed for an
industrial issuer whose senior unsecured bond rating is "AA", or the
equivalent, from a nationally recognized securities rating agency;
provided, however, that if the dealers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the
Commercial Paper Rate with respect to such Commercial Paper Interest
Determination Date will be the Commercial Paper Rate in effect on such
Commercial Paper Interest Determination Date.
"Money Market Yield" shall be a yield calculated in accordance
with the following formula:
Money Market Yield = D x 360 x 100
-------------
360-(D x M)
where "D" refers to the per annum rate for the commercial paper, quoted on
a bank discount basis and expressed as a decimal; and "M" refers to the
actual number of days in the interest period for which interest is being
calculated.]
LIBOR. If the Interest Rate Basis specified on the face hereof is
LIBOR, the interest rate on this Security shall equal the rate calculated
with reference to LIBOR, adjusted by the addition or subtraction of the
Spread, if any, specified on the face hereof, and/or by multiplication by
the Spread Multiplier, if any, specified on the face hereof. [LIBOR will be
determined by the Calculation Agent specified on the face hereof in
accordance with the following provisions:
(i) With respect to a LIBOR Interest Determination Date,
LIBOR will be determined on the
<PAGE>9
basis of either, as specified on the face hereof, (a) the
arithmetic mean of the offered rates for deposits in U.S. dollars
having the Index Maturity designated on the face hereof,
commencing on the second London Banking Day immediately following
that LIBOR Interest Determination Date, that appears on the
Reuters Screen LIBO Page as of 11:00 a.m., London time, on that
LIBOR Interest Determination Date, if at least two such offered
rates appear on the Reuters Screen LIBO Page, or (b) the rate for
deposits in U.S. dollars having the Index Maturity designated on
the face hereof, commencing on the second London Banking Day
immediately following that LIBOR Interest Determination Date,
that appears on the Telerate Page 3750 as of 11:00 a.m., London
Time, on that LIBOR Interest Determinate Date. "Reuters Screen
LIBO Page" means the display designated as Page "LIBO" in the
Reuters Monitor Money Rate Service (or such other page as may
replace the LIBO page on that service for the purpose of
displaying London interbank offered rates of major banks).
"Telerate Page 3750" means the display designated on page "3750"
on the Telerate Service (or such other page as may replace the
3750 page on that service or such other service or services as
may be nominated by the British Bankers' Association for the
purpose of displaying London interbank offered rates for U.S.
dollar deposits). If neither LIBOR Reuters nor LIBOR Telerate is
specified on the face hereof, LIBOR in respect of that LIBOR
Interest Determination Date will be determined as if LIBOR
Telerate had been specified. If LIBOR Reuters is specified on the
face hereof and fewer than two offered rates appear on the
Reuters Screen LIBO page, or if LIBOR Telerate is specified on
the face hereof and no rate appears on the Telerate Page 3750,
the rate in respect of that LIBOR Interest Determination Date
will be determined as if the parties had specified the rate
described in (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on
which this provision applies as specified in (i) above, LIBOR
will be determined on the basis of the rates at which deposits in
U.S. dollars having the Index Maturity specified on the face
hereof are offered at approximately 11:00 a.m., London time, on
that LIBOR Interest Determination Date by four major banks (the
"Reference Banks") in the London interbank market selected by the
Calculation Agent to prime banks in the London interbank market
commencing on the second London Banking Day immediately following
that LIBOR Interest Determination Date and in a principal amount
<PAGE>10
equal to an amount of not less than U.S. $1 million that is
representative for a single transaction in such market at such
time. The Calculation Agent will request the principal London
office of each of such Reference Banks to provide a quotation of
its rate. If at least two such quotations are provided, LIBOR in
respect of that LIBOR Interest Determination Date will be the
arithmetic mean of such quotations. If fewer than two quotations
are provided, LIBOR in respect of that LIBOR Interest
Determination Date will be the arithmetic mean of the rates
quoted at approximately 11:00 a.m., New York City time, on that
LIBOR Interest Determination Date by three major banks in The
City of New York selected by the Calculation Agent for loans in
U.S. dollars to leading European banks, having the Index Maturity
designated on the face hereof commencing on the second London
Banking Day immediately following that LIBOR Interest
Determination Date and in a principal amount equal to an amount
of not less than U.S. $1 million that is representative for a
single transaction in such market at such time; provided,
however, that if the banks in The City of New York selected as
aforesaid by the Calculation Agent are not quoting as mentioned
in this sentence, LIBOR with respect to such LIBOR Interest
Determination Date will be LIBOR in effect on such LIBOR Interest
Determination Date.
Treasury Rate. If the Interest Rate Basis specified on the face
hereof is the Treasury Rate, the interest rate on this Security shall equal
the rate calculated with reference to the Treasury Rate, adjusted by the
addition or subtraction of the Spread, if any, specified on the face
hereof, or by multiplication by the Spread Multiplier, if any, specified on
the face hereof. "Treasury Rate" means, [with respect to any Treasury
Interest Determination Date, the rate for the most recent auction of direct
obligations of the United States ("Treasury bills") having the Index
Maturity specified on the face hereof as published in H.15(519) under the
heading "Treasury bills - auction average (investment)" or, if not so
published by 3:00 p.m., New York City time, on the Calculation Date
pertaining to such Treasury Interest Determination Date, the auction
average rate (expressed as a bond equivalent on the basis of a year of 365
or 366 days, as applicable, and applied on a daily basis) for such auction
as otherwise announced by the United States Department of the Treasury. In
the event that the results of the auction of Treasury bills having the
Index Maturity specified on the face hereof are not otherwise reported as
provided above by 3:00 p.m., New York City time, on such Calculation Date
or no such auction is held in a particular week, then the Treasury Rate
shall be calculated by the Calculation Agent and shall be the
<PAGE>11
yield to maturity (expressed as a bond equivalent on the basis of a year of
365 or 366 days, as applicable, and applied on a daily basis) of the
arithmetic mean of the secondary market bid rates, as of 3:30 p.m., New
York City time, on such Treasury Interest Determination Date, of three
leading primary United States government securities dealers selected by the
Calculation Agent, for the issue of Treasury bills with a remaining
maturity closest to the Index Maturity specified on the face hereof;
provided, however, that if the dealers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the
Treasury Rate with respect to such Treasury Interest Determination Date
will be the Treasury Rate in effect on such Treasury Interest Determination
Date.
CD Rate. If the Interest Rate specified on the face hereof is the
CD Rate, the interest rate on this Security shall equal the rate calculated
with reference to the CD Rate, adjusted by the addition or subtraction of
the Spread, if any, specified on the face hereof, or by multiplication by
the Spread Multiplier, if any, specified on the face hereof. "CD Rate"
means, with respect to any Interest Determination Date, the rate on such
date for negotiable certificates of deposit having the Index Maturity shown
on the face hereof, as made available and subsequently published in
H.15(519) under the heading "CDs (Secondary Market)." In the event that
such rate is not so made available by 3:00 p.m., New York City time, on the
Calculation Date pertaining to such Interest Determination Date, the CD
Rate will be the rate on such Interest Determination Date for negotiable
certificates of deposit of the Index Maturity specified on the face hereof,
as made available and subsequently published in Composite Quotations under
the heading "CDs (Secondary Market)" prior to 3:00 p.m., New York City
time. If such rate is neither published in H.15(519) or in Composite
Quotations by 3:00 p.m., New York time, on such Calculation Date, then the
CD Rate on such Interest Determination Date will be calculated by the
Calculation Agent and will be the arithmetic mean of the secondary market
offered rates as of 10:00 a.m., New York City time, on such Interest
Determination Date of three leading non-bank dealers in negotiable U.S.
dollar certificates of deposit in The City of New York selected by the
Calculation Agent for negotiable certificates of deposit of major United
States money market banks of the highest credit standing (in the market for
negotiable certificates of deposit) with a remaining maturity closest to
the Index Maturity specified on the face hereof in a denomination of
$5,000,000 or other amount that is representative for a single transaction
in that market at that time; provided, however, that if the dealers
selected as aforesaid by the Calculation Agent are not quoting as mentioned
in this sentence, the CD Rate with respect to such Interest Determination
Date will be the CD Rate in effect on such date.
<PAGE>12
Prime Rate. If the Interest Rate Basis specified on the face
hereof is the Prime Rate, the interest rate on this Security shall equal
the rate calculated with reference to the Prime Rate, adjusted by the
addition or subtraction of the Spread, if any, specified on the face
hereof, or by multiplication by the Spread Multiplier, if any, specified on
the face hereof. "Prime Rate" means, with respect to any Interest
Determination Date, the rate on such date as made available and
subsequently published in H.15(519) under the heading "Bank Prime Loan." In
the event that such rate is not so published by 3:00 p.m., New York City
time, on such Calculation Date, then the Prime Rate will be determined by
the Calculation Agent and will be the arithmetic mean of the rates of
interest publicly announced by each bank that appears on the Reuters Screen
USPRIME1 (as defined below), at 3:00 p.m., New York City time, as such
banks' prime rate or base lending rate on such Interest Determination Date.
If fewer than four such rates but more than one such rate appears on the
Reuters Screen USPRIME1 for such Interest Determination Date, the Prime
Rate shall be the arithmetic mean of the prime rates quoted on the basis of
the actual number of days in the year divided by 360 as of the close of
business on such Interest Determination Date by four major money center
banks in the City of New York selected by the Calculation Agent. If fewer
than two such rates appear on the Reuters Screen USPRIME1 as provided
above, the Prime Rate will be determined by the Calculation Agent on the
basis of rates furnished in the City of New York by three substitute banks
or trust companies organized and doing business under the laws of the
United States, or any State thereof, having total equity capital of at
least $500,000,000 and being subject to supervision or examination by
federal or state authority, selected by the Calculation Agent to provide
such rate or rates; provided, however, that if the banks selected as
aforesaid are not quoting as mentioned in this sentence, the Prime Rate
with respect to such Interest Determination Date will be the Prime Rate in
effect on such date. "Reuters Screen USPRIME1" means the display designated
as page "USPRIME1" on the Reuters Monitor Money Rates Service (or such
other page as may replace the USPRIME1 page on that service for the purpose
of displaying prime rates or base lending rates of major United States
banks).
CMT Rate. If the Interest Rate Basis specified on the face hereof
is the CMT Rate, the interest rate on this Security shall equal the rate
calculated with reference to the CMT Rate, adjusted by the addition or
subtraction of the Spread, if any, specified on the face hereof, or by
multiplication by the Spread Multiplier, if any, as specified on the face
hereof. "CMT Rate" means, with respect to any Interest Determination Date,
the rate displayed on the Designated CMT Telerate page (as defined below)
under the caption "...Treasury Constant Maturities... Federal Reserve Board
Release H.15... Mondays Approximately 3:45 p.m.,"
<PAGE>13
under the column for the Index Maturity set forth on the face hereof for
(i) if the Designated CMT Telerate page is 7055, the rate for the
applicable Interest Determination Date and (ii) if the Designated CMT
Telerate page is 7052, the week, or the month, as applicable, ended
immediately preceding the week in which the related Interest Determination
Date occurs. If such rate is no longer displayed on the relevant page, or
if not displayed by 3:00 p.m., New York City time, on the related
Calculation Date, then the CMT Rate for such Interest Determination Date
will be such Treasury Constant Maturity rate for the Index Maturity set
forth on the face hereof as published in the relevant H.15(519). If such
rate is no longer published, or if not published by 3:00 p.m., New York
City time, on the related Calculation Date, then the CMT Rate for such
Interest Determination Date will be the Treasury Constant Maturity rate for
the Index Maturity set forth on the face hereof (or other United States
Treasury rate for the Index Maturity set forth on the face hereof) as may
then be published by either the Federal Reserve Board or the United States
Department of the Treasury that the Calculation Agent determines to be
comparable to the rate formerly displayed on the Designated CMT Telerate
Page and published in the relevant H.15(519). If such information is not
provided by 3:00 p.m., New York City time, on the related Calculation Date,
then the CMT Rate for such Interest Determination Date will be calculated
by the Calculation Agent and will be a yield to maturity, based on the
arithmetic mean of the secondary market closing offer side prices as of
approximately 3:30 p.m., (New York City time) on such Interest
Determination Date reported, according to their written records, by three
leading primary United States government securities dealers (each, a
"Reference Dealer") in The City of New York selected by the Calculation
Agent (from five such Reference Dealers selected by the Calculation Agent
and eliminating the highest quotation (or, in the event of equality, one of
the highest) and the lowest quotation (or, in the event of equality, one of
the lowest)), for the most recently issued direct noncallable fixed rate
obligations of the United States ("Treasury Note") with an original
maturity of approximately the Index Maturity set forth on the face hereof
and a remaining term to maturity of not less than such Index Maturity minus
one year. If the Calculation Agent cannot obtain three such Treasury Note
quotations, the CMT Rate for such Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity based
on the arithmetic mean of the secondary market offer side prices as of
approximately 3:30 p.m., New York City time, on such Interest Determination
Date of three Reference Dealers in The City of New York (from five such
Reference Dealers selected by the Calculation Agent and eliminating the
highest quotation (or, in the event of equality, one of the highest) and
the lowest quotation (or, in the event of equality, one of the lowest)),
for Treasury notes with an original maturity of the number of years that is
the next highest to the Index Maturity
<PAGE>14
set forth on the face hereof and a remaining term to maturity closest to
such Index Maturity and in an amount of at least $100,000,000. If three or
four (and not five) of such Reference Dealers are quoting as described
above, then the CMT Rate will be based on the arithmetic mean of the offer
prices obtained and neither the highest nor the lowest of such quotes will
be eliminated; provided, however, that if fewer than three Reference
Dealers selected by the Calculation Agent are quoting as described herein,
the CMT Rate with respect to such Interest Determination Date will be the
CMT Rate in effect on such date. If two Treasury Notes with an original
maturity as described in the third preceding sentence have remaining terms
to maturity equally close to the Index Maturity set forth on the face
hereof, the quotes for the Treasury Note with the shorter remaining term to
maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service on the page designated on the face hereof (or any other
page as may replace such page on that service for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519)), for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519). If no
such page is specified on the face hereof, the Designated CMT Telerate Page
shall be 7052, for the most recent week.
Notwithstanding the foregoing, the interest rate shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified on the face hereof. The Calculation Agent
specified on the face hereof shall calculate the interest rate on this
Security in accordance with the foregoing on or before each Calculation
Date.
The interest on this Security will in no event be higher than the
maximum rate permitted by New York law as the same may be modified by
United States law of general applicability.
All percentages resulting from any calculation with respect to
this Security shall be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point, with five one-millionths of a
percentage point rounded upward (e.g., 9.876545% or .09876545 being rounded
to 9.87655% or .0987655), and all dollar amounts used in or resulting from
such calculation on this Security shall be rounded, if necessary, to the
nearest cent (with one-half cent being rounded upward).
This Security may be redeemed prior to its Stated Maturity, at
the option of the Company on and after the Redemption Date shown on the
face hereof, in whole or in part in increments of $1,000 at a redemption
price equal to 100 percent of the principal amount to be redeemed, plus the
applicable
<PAGE>15
Redemption Premium, if any, shown on the face hereof, together with
interest thereon accrued to, but excluding, the Redemption Date; provided,
however, that if no such Redemption Date is so shown, then this Security
may not be redeemed prior to its Stated Maturity.
Notice of redemption will be given by mail to Holders of
Securities, not less than 30 nor more than 90 days prior to the date fixed
for redemption, all as provided in the Indenture. 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.
[Insert provisions regarding redemption, repurchase or repayment
pursuant to any sinking fund or analogous provision or at the option of the
holder, if applicable.]
The Indenture contains provisions for defeasance of the entire
indebtedness of this Security upon compliance by the Company with certain
conditions set forth therein.
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.
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 a majority 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 herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this
Security.
As set forth in, and subject to, the provisions of the Indenture,
no Holder of any Security of this series will have any right to institute
any proceeding with respect to the Indenture or for any remedy thereunder,
unless such Holder shall have
<PAGE>16
previously given to the Trustee written notice of a continuing Event of
Default with respect to this series, the Holders of not less than 25% on
principal amount of the Outstanding Securities of this series shall have
made written request, and offered reasonable indemnity, to the Trustee to
institute such proceeding as trustee, and the Trustee shall not have
received from the Holders of a majority in principal amount of the
Outstanding Securities of this series a direction inconsistent with such
request and shall have failed to institute such proceeding within 60 days;
provided, however, that such limitations do not apply to a suit instituted
by the Holder hereof for the enforcement of payment of the principal of
(and premium, if any) or interest on this Security on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Security at the times, place and
rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable 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 premium, if any) and interest on this Security are
payable, duly endorsed, 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 any authorized
denominations and of a like aggregate principal amount and tenor, 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 [$1,000] and any integral
multiples [of $1,000 in excess] 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 and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
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.
<PAGE>17
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 is 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.
---------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations.
TEN COM -- as tenants in common UNIF GIFT MIN ACT --
TEN ENT -- as tenants by the
entireties ____________ Custodian
JT TEN -- as joint tenants (Cust)
with right of
survivorship and not _____________
as tenants in common (Minor)
Under Uniform Gifts
to Minors Act
-------------
(State)
Additional abbreviations may also be used though not in the
above list.
---------------
<PAGE>18
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE
- ------------------
[ ]
---------------- -------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP
CODE OF ASSIGNEE
- --------------------------------------------------------------------------
- --------------------------------------------------------------------------
the within Security and all rights thereunder, hereby irrevocably
constituting and appointing
Attorney
to transfer said Security on the books of the Company, with full power of
substitution in the premises.
Dated:
------------------------- ----------------------------------
NOTICE: The signature to this
assignment must correspond
with the name as written upon
the face of the within
instrument in every
particular, without alteration
or enlargement, or any change
whatever.
<PAGE>
STOEL RIVES LLP
---------------
ATTORNEYS
700 NE Multnomah, Suite 950
Portland, OR 97232
Telephone (503) 294-9100
Fax (503) 2230-1907
January 12, 1996
Exhibit (5)(23)(b)
Pacific Telecom, Inc.
805 Broadway
Vancouver, WA 98668
Dear Sirs:
We are acting as counsel to Pacific Telecom, Inc., a Washington
corporation (the "Company"), in connection with the proposed issuance and
sale by the Company of not to exceed $200,000,000 in aggregate principal
amount of its unsecured debt securities (the "Debt Securities"), to be
issued pursuant to an Indenture dated as of September 20, 1991, as it may
be amended or supplemented from time to time (the "Indenture"), between the
Company and First National Bank of Chicago, as Trustee, all as contemplated
by the Registration Statement on Form S-3 (the "Registration Statement")
about to be filed by the Company with the Securities and Exchange
Commission for the registration of the Debt Securities under the Securities
Act of 1933, as amended, and for qualification of the Indenture under the
Trust Indenture Act of 1939, as amended.
In connection with the foregoing, we are of the opinion that all
action necessary to make valid the proposed issuance of the Debt Securities
by the Company will have been taken when:
(a) the Registration Statement, as it may be amended, shall have
become effective;
(b) the Indenture shall have been qualified under the Trust Indenture
Act of 1939, as amended;
(c) an Authorized Officer (as defined in the resolutions adopted by
the Board of Directors of the Company authorizing the issuance of
the Debt Securities) shall have taken appropriate action
approving the terms of such Debt Securities; and
(d) the Debt Securities shall have been appropriately issued and
delivered for the consideration contemplated by, and otherwise in
conformity with, the acts, proceedings and documents referred to
above.
<PAGE>
Pacific Telecom, Inc.
January 12, 1996
Page 2
We are further of the opinion that, when the steps set forth in the
immediately preceding paragraphs shall have been taken, the Debt Securities
will be legal, valid and binding obligations of the Company enforceable
against the Company in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization or other
laws limiting creditors' rights generally or by equitable principles
relating to the availability of remedies; provided, however, that in
rendering the above opinion, we express no opinion as to the effect, if
any, of the usury laws of any state upon the enforceability of rights of
the holders of the Debt Securities.
In rendering the foregoing opinion, we have assumed, as to matters
governed by the State of New York, that the laws of the State of New York
and the laws of the State of Washington do not differ in any respect
material to the conclusions expressed herein.
We hereby authorize and consent to the use of this opinion as Exhibit
5 to the Registration Statement and authorize and consent to the references
to our firm in said Registration Statement and in the Prospectus
constituting a part thereof. In giving such consent, we do not thereby
admit that we are within the category of persons whose consent is required
pursuant to Section 7 of the Securities Act of 1933, as amended, or the
rules and regulations of the Securities and Exchange Commission.
Very truly yours,
STOEL RIVES LLP
<PAGE>
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Pacific Telecom, Inc. and its subsidiaries on Form S-3 of our report
dated February 15, 1996 (March 9, 1995 as to the definitive merger
agreement discussed in Note 2), which included an explanatory paragraph
relating to a change in the method of accounting for other postretirement
benefits in the year ended December 31, 1993, appearing in the Annual
Report on Form 10-K of Pacific Telecom, Inc. for the year ended December
31, 1994 and to the reference to us under the heading "Experts" in the
Prospectus, which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
January 10, 1996
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes
and appoints Charles E. Robinson, James H. Huesgen and Brian M. Wirkkala,
and each of them, the undersigned's true and lawful attorneys and agents,
with full power of substitution and resubstitution for the undersigned and
in the undersigned's name, place and stead, in any and all capacities, to
sign a Registration Statement under The Securities Act of 1933, as amended,
prepared in connection with the issuance of not to exceed $200,000,000
aggregate principal amount of Medium-Term Notes, Series C of Pacific
Telecom, Inc., and any and all amendments (including post-effective
amendments) thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto such attorneys and agents, and each of them, full
power and authority to do any and all acts and things necessary or
advisable to be done, as fully and to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming
all that such attorneys and agents or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Dated: December 28, 1995.
CHARLES E. ROBINSON
--------------------------
Charles E. Robinson
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes
and appoints Charles E. Robinson, James H. Huesgen and Brian M. Wirkkala,
and each of them, the undersigned's true and lawful attorneys and agents,
with full power of substitution and resubstitution for the undersigned and
in the undersigned's name, place and stead, in any and all capacities, to
sign a Registration Statement under The Securities Act of 1933, as amended,
prepared in connection with the issuance of not to exceed $200,000,000
aggregate principal amount of Medium-Term Notes, Series C of Pacific
Telecom, Inc., and any and all amendments (including post-effective
amendments) thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto such attorneys and agents, and each of them, full
power and authority to do any and all acts and things necessary or
advisable to be done, as fully and to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming
all that such attorneys and agents or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Dated: December 28, 1995.
JAMES H. HUESGEN
--------------------------
James H. Huesgen
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes
and appoints Charles E. Robinson, James H. Huesgen and Brian M. Wirkkala,
and each of them, the undersigned's true and lawful attorneys and agents,
with full power of substitution and resubstitution for the undersigned and
in the undersigned's name, place and stead, in any and all capacities, to
sign a Registration Statement under The Securities Act of 1933, as amended,
prepared in connection with the issuance of not to exceed $200,000,000
aggregate principal amount of Medium-Term Notes, Series C of Pacific
Telecom, Inc., and any and all amendments (including post-effective
amendments) thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto such attorneys and agents, and each of them, full
power and authority to do any and all acts and things necessary or
advisable to be done, as fully and to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming
all that such attorneys and agents or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Dated: December 28, 1995.
DONALD A. BLOODWORTH
--------------------------
Donald A. Bloodworth
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes
and appoints Charles E. Robinson, James H. Huesgen and Brian M. Wirkkala,
and each of them, the undersigned's true and lawful attorneys and agents,
with full power of substitution and resubstitution for the undersigned and
in the undersigned's name, place and stead, in any and all capacities, to
sign a Registration Statement under The Securities Act of 1933, as amended,
prepared in connection with the issuance of not to exceed $200,000,000
aggregate principal amount of Medium-Term Notes, Series C of Pacific
Telecom, Inc., and any and all amendments (including post-effective
amendments) thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto such attorneys and agents, and each of them, full
power and authority to do any and all acts and things necessary or
advisable to be done, as fully and to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming
all that such attorneys and agents or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Dated: December 28, 1995.
JOYCE E. GALLEHER
--------------------------
Joyce E. Galleher
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes
and appoints Charles E. Robinson, James H. Huesgen and Brian M. Wirkkala,
and each of them, the undersigned's true and lawful attorneys and agents,
with full power of substitution and resubstitution for the undersigned and
in the undersigned's name, place and stead, in any and all capacities, to
sign a Registration Statement under The Securities Act of 1933, as amended,
prepared in connection with the issuance of not to exceed $200,000,000
aggregate principal amount of Medium-Term Notes, Series C of Pacific
Telecom, Inc., and any and all amendments (including post-effective
amendments) thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto such attorneys and agents, and each of them, full
power and authority to do any and all acts and things necessary or
advisable to be done, as fully and to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming
all that such attorneys and agents or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Dated: December 28, 1995.
MICHAEL C. HENDERSON
--------------------------
Michael C. Henderson
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes
and appoints Charles E. Robinson, James H. Huesgen and Brian M. Wirkkala,
and each of them, the undersigned's true and lawful attorneys and agents,
with full power of substitution and resubstitution for the undersigned and
in the undersigned's name, place and stead, in any and all capacities, to
sign a Registration Statement under The Securities Act of 1933, as amended,
prepared in connection with the issuance of not to exceed $200,000,000
aggregate principal amount of Medium-Term Notes, Series C of Pacific
Telecom, Inc., and any and all amendments (including post-effective
amendments) thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto such attorneys and agents, and each of them, full
power and authority to do any and all acts and things necessary or
advisable to be done, as fully and to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming
all that such attorneys and agents or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Dated: December 28, 1995.
ROY M. HUHNDORF
--------------------------
Roy M. Huhndorf
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes
and appoints Charles E. Robinson, James H. Huesgen and Brian M. Wirkkala,
and each of them, the undersigned's true and lawful attorneys and agents,
with full power of substitution and resubstitution for the undersigned and
in the undersigned's name, place and stead, in any and all capacities, to
sign a Registration Statement under The Securities Act of 1933, as amended,
prepared in connection with the issuance of not to exceed $200,000,000
aggregate principal amount of Medium-Term Notes, Series C of Pacific
Telecom, Inc., and any and all amendments (including post-effective
amendments) thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto such attorneys and agents, and each of them, full
power and authority to do any and all acts and things necessary or
advisable to be done, as fully and to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming
all that such attorneys and agents or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Dated: December 28, 1995.
NOLAN E. KARRAS
--------------------------
Nolan E. Karras
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes
and appoints Charles E. Robinson, James H. Huesgen and Brian M. Wirkkala,
and each of them, the undersigned's true and lawful attorneys and agents,
with full power of substitution and resubstitution for the undersigned and
in the undersigned's name, place and stead, in any and all capacities, to
sign a Registration Statement under The Securities Act of 1933, as amended,
prepared in connection with the issuance of not to exceed $200,000,000
aggregate principal amount of Medium-Term Notes, Series C of Pacific
Telecom, Inc., and any and all amendments (including post-effective
amendments) thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto such attorneys and agents, and each of them, full
power and authority to do any and all acts and things necessary or
advisable to be done, as fully and to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming
all that such attorneys and agents or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Dated: December 28, 1995.
PAUL G. LORENZINI
--------------------------
Paul G. Lorenzini
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes
and appoints Charles E. Robinson, James H. Huesgen and Brian M. Wirkkala,
and each of them, the undersigned's true and lawful attorneys and agents,
with full power of substitution and resubstitution for the undersigned and
in the undersigned's name, place and stead, in any and all capacities, to
sign a Registration Statement under The Securities Act of 1933, as amended,
prepared in connection with the issuance of not to exceed $200,000,000
aggregate principal amount of Medium-Term Notes, Series C of Pacific
Telecom, Inc., and any and all amendments (including post-effective
amendments) thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto such attorneys and agents, and each of them, full
power and authority to do any and all acts and things necessary or
advisable to be done, as fully and to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming
all that such attorneys and agents or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Dated: December 28, 1995.
DONALD L. MELLISH
--------------------------
Donald L. Mellish
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes
and appoints Charles E. Robinson, James H. Huesgen and Brian M. Wirkkala,
and each of them, the undersigned's true and lawful attorneys and agents,
with full power of substitution and resubstitution for the undersigned and
in the undersigned's name, place and stead, in any and all capacities, to
sign a Registration Statement under The Securities Act of 1933, as amended,
prepared in connection with the issuance of not to exceed $200,000,000
aggregate principal amount of Medium-Term Notes, Series C of Pacific
Telecom, Inc., and any and all amendments (including post-effective
amendments) thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto such attorneys and agents, and each of them, full
power and authority to do any and all acts and things necessary or
advisable to be done, as fully and to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming
all that such attorneys and agents or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Dated: December 28, 1995.
SIDNEY R. SNYDER
--------------------------
Sidney R. Snyder
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes
and appoints Charles E. Robinson, James H. Huesgen and Brian M. Wirkkala,
and each of them, the undersigned's true and lawful attorneys and agents,
with full power of substitution and resubstitution for the undersigned and
in the undersigned's name, place and stead, in any and all capacities, to
sign a Registration Statement under The Securities Act of 1933, as amended,
prepared in connection with the issuance of not to exceed $200,000,000
aggregate principal amount of Medium-Term Notes, Series C of Pacific
Telecom, Inc., and any and all amendments (including post-effective
amendments) thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto such attorneys and agents, and each of them, full
power and authority to do any and all acts and things necessary or
advisable to be done, as fully and to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming
all that such attorneys and agents or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Dated: December 28, 1995.
VERL R. TOPHAM
--------------------------
Verl R. Topham
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes
and appoints Charles E. Robinson, James H. Huesgen and Brian M. Wirkkala,
and each of them, the undersigned's true and lawful attorneys and agents,
with full power of substitution and resubstitution for the undersigned and
in the undersigned's name, place and stead, in any and all capacities, to
sign a Registration Statement under The Securities Act of 1933, as amended,
prepared in connection with the issuance of not to exceed $200,000,000
aggregate principal amount of Medium-Term Notes, Series C of Pacific
Telecom, Inc., and any and all amendments (including post-effective
amendments) thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto such attorneys and agents, and each of them, full
power and authority to do any and all acts and things necessary or
advisable to be done, as fully and to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming
all that such attorneys and agents or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Dated: December 28, 1995.
/s/ NANCY WILGENBUSCH
--------------------------
Nancy Wilgenbusch
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes
and appoints Charles E. Robinson, James H. Huesgen and Brian M. Wirkkala,
and each of them, the undersigned's true and lawful attorneys and agents,
with full power of substitution and resubstitution for the undersigned and
in the undersigned's name, place and stead, in any and all capacities, to
sign a Registration Statement under The Securities Act of 1933, as amended,
prepared in connection with the issuance of not to exceed $200,000,000
aggregate principal amount of Medium-Term Notes, Series C of Pacific
Telecom, Inc., and any and all amendments (including post-effective
amendments) thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto such attorneys and agents, and each of them, full
power and authority to do any and all acts and things necessary or
advisable to be done, as fully and to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming
all that such attorneys and agents or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Dated: December 28, 1995.
BRIAN M. WIRKKALA
--------------------------
Brian M. Wirkkala
<PAGE>
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) _____
---------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
-----------------------------------
PACIFIC TELECOM, INC.
(Exact name of obligor as specified in its charter)
Washington 91-0644974
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
805 Broadway
P.O. Box 9901
Vacouver, Washington 98668-9901
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of Indenture Securities)
<PAGE>2
Item 1. General Information. Furnish the following information as to
the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Comptroller of Currency, Washington, D.C., Federal Deposit
Insurance Corporation, Washington, D.C., The Board of Governors
of the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With the Obligor. If the obligor is an affiliate of
the trustee, describe each such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a part of this
Statement of Eligibility.
1. A copy of the articles of association of the trustee now in
effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the
Act.
<PAGE>3
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the
United States of America, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Chicago and State of Illinois, on
the 3rd day of January, 1996.
The First National Bank of Chicago,
Trustee
By /s/ R. D. Manella
----------------------------------------
R. D. Manella
Vice President
* Exhibit 1,2,3 and 4 are herein incorporated by reference to Exhibits bearing
identical numbers in Item 12 of the Form T-1 of The First National Bank of
Chicago, filed as Exhibit 26 to the Registration Statement on Form S-3 of The
CIT Group Holdings, Inc., filed with the Securities and Exchange Commission on
February 16, 1993 (Registration No. 33-58418).
<PAGE>4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
January 3, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between Pacific Telecom,
Inc. and The First National Bank of Chicago, the undersigned, in accordance
with Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby
consents that the reports of examinations of the undersigned, made by Federal
or State authorities authorized to make such examinations, may be furnished by
such authorities to the Securities and Exchange Commission upon its request
therefor.
Very truly yours,
The First National Bank of Chicago
By: /s/ R. D. Manella
---------------------------
R. D. Manella
Vice President
<PAGE>5
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Page RC-1
Address: One First National Plaza, Suite 0460
City, State Zip: Chicago, IL 60670-0460
FDIC Certificate No.: 0/3/6/1/8
-----------
Call Date: 09/30/95 ST-BK: 17-1630 FFIEC 031
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for September 30, 1995
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
<TABLE>
<CAPTION>
Schedule RC--Balance Sheet
C400
Dollar Amounts in ----
Thousands RCFD BIL MIL THOU
----------------- ---- --- --- ----
<S> <C> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1) ................... 0081 3,444,194 1.a.
b. Interest-bearing balances(2) ............................................ 0071 9,033,869 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) ............... 1754 261,869 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D) ............ 1773 542,724 2.b.
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold ...................................................... 0276 3,604,442 3.a.
b. Securities purchased under agreements to resell ......................... 0277 772,500 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C) ...................................................................... RCFD 2122 16,414,211 4.a.
b. LESS: Allowance for loan and lease losses ............................... RCFD 3123 355,947 4.b.
c. LESS: Allocated transfer risk reserve ................................... RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c) .................................... 2125 16,058,264 4.d.
5. Assets held in trading accounts ............................................ 3545 14,146,146 5.
6. Premises and fixed assets (including capitalized leases) ................... 2145 597,955 6.
7. Other real estate owned (from Schedule RC-M) ............................... 2150 10,020 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) ............................................. 2130 40,104 8.
9. Customers' liability to this bank on acceptances outstanding ............... 2155 573,623 9.
10. Intangible assets (from Schedule RC-M) ..................................... 2143 105,787 10.
11. Other assets (from Schedule RC-F) .......................................... 2160 1,454,689 11.
12. Total assets (sum of items 1 through 11) ................................... 2170 50,646,186 12.
<FN>
- ---------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
</FN>
</TABLE>
<PAGE>6
Legal Title of Bank: The First National Bank of Chicago Page RC-2
Address: One First National Plaza, Suite 0460
City, State Zip: Chicago, IL 60670-0460
FDIC Certificate No.: 0/3/6/1/8
-----------
Call Date: 09/30/95 ST-BK: 17-1630 FFIEC 031
<TABLE>
<CAPTION>
Schedule RC-Continued
Dollar Amounts in
Thousands Bil Mil Thou
----------------- ------------
<S> <C> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1) ........................................ RCON 2200 14,549,199 13.a.
(1) Noninterest-bearing(1) ......................................... RCON 6631 5,715,480 13.a.(1)
(2) Interest-bearing ............................................... RCON 6636 8,833,719 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II) ................................. RCFN 2200 13,281,870 13.b.
(1) Noninterest bearing ............................................ RCFN 6631 435,273 13.b.(1)
(2) Interest-bearing ............................................... RCFN 6636 12,846,597 13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased ............................................ RCFD 0278 4,108,510 14.a.
b. Securities sold under agreements to repurchase ..................... RCFD 0279 1,405,589 14.b.
15. a. Demand notes issued to the U.S. Treasury ........................... RCON 2840 98,343 15.a.
b. Trading Liabilities................................................. RCFD 3548 8,276,459 15.b.
16. Other borrowed money:
a. With original maturity of one year or less ......................... RCFD 2332 2,290,279 16.a.
b. With original maturity of more than one year ...................... RCFD 2333 549,433 16.b.
17. Mortgage indebtedness and obligations under capitalized
leases ................................................................ RCFD 2910 280,522 17.
18. Bank's liability on acceptance executed and outstanding ............... RCFD 2920 573,623 18.
19. Subordinated notes and debentures ..................................... RCFD 3200 1,225,000 19.
20. Other liabilities (from Schedule RC-G) ................................ RCFD 2930 907,545 20.
21. Total liabilities (sum of items 13 through 20) ........................ RCFD 2948 47,546,372 21.
22. Limited-Life preferred stock and related surplus ...................... RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus ......................... RCFD 3838 0 23.
24. Common stock .......................................................... RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) .............. RCFD 3839 2,317,534 25.
26. a. Undivided profits and capital reserves ............................. RCFD 3632 582,210 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities ......................................................... RCFD 8434 (806) 26.b.
27. Cumulative foreign currency translation adjustments ................... RCFD 3284 18 27.
28. Total equity capital (sum of items 23 through 27) ..................... RCFD 3210 3,099,814 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) ................................. RCFD 3300 50,646,186 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number
of the statement below that best describes
the most comprehensive level of auditing work
performed for the bank by independent
external auditors as of any date Number
during 1993................................. RCFD 6724 N/A M.1.
1 = Independent audit of the bank 4 = Directors' examination of the bank
conducted in accordance with performed by other external
generally accepted auditing auditors (may be required by state
standards by a certified public chartering authority)
accounting firm which submits a 5 = Review of the bank's financial
report on the bank statements by external auditors
2 = Independent audit of the bank's 6 = Compilation of the bank's
parent holding company conducted financial statements by external
in accordance with generally auditors
accepted auditing standards by a 7 = Other audit procedures (excluding
certified public accounting firm tax preparation work)
which submits a report on the 8 = No external audit work
consolidated holding company (but
not on the bank separately)
3 = Directors' examination of the bank
conducted in accordance with
generally accepted auditing
standards by a certified public
accounting firm (may be required
by state chartering authority)
- --------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
