EXHIBIT 4(c)
PACIFICORP
AND
THE BANK OF NEW YORK,
as Trustee
--------------------
FOURTH SUPPLEMENTAL INDENTURE
Dated as of [_________ __,] 1997
TO
INDENTURE
Dated as of May 1, 1995
--------------------
[____%] Junior Subordinated Deferrable Interest Debentures, Series D
FOURTH SUPPLEMENTAL INDENTURE, dated as of the [___]day of [______],
1997 (this "Fourth Supplemental Indenture"), between PACIFICORP, a corporation
duly organized and existing under the laws of the State of Oregon (hereinafter
sometimes referred to as the "Company"), and THE BANK OF NEW YORK, a New York
banking corporation, as trustee (hereinafter sometimes referred to as the
"Trustee") (under the Indenture dated as of May 1, 1995 between the Company and
the Trustee (the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of its junior subordinated debentures
(the "Debentures"), which Debentures are to be issued from time to time in such
series as may be determined by the Company under the Indenture, in an unlimited
aggregate principal amount which may be authenticated and delivered thereunder
as in the Indenture provided; and
WHEREAS, the Company and the Trustee previously executed and delivered
a First Supplemental Indenture dated as of May 1, 1995 (the "First Supplemental
Indenture") and in accordance therewith the Company issued a series of
Debentures designated the "8 3/8% Junior Subordinated Deferrable Interest
Debentures, Series A, Due 2025" in the aggregate principal amount of
$120,000,000; and
WHEREAS, the Company and the Trustee previously executed and delivered
a Second Supplemental Indenture dated as of October 1, 1995 (the "Second
Supplemental Indenture") and in accordance therewith the Company issued a series
of Debentures designated the "8.55% Junior Subordinated Deferrable Interest
Debentures, Series B" in the aggregate principal amount of $55,825,925; and
WHEREAS, the Company and the Trustee previously executed and delivered
a Third Supplemental Indenture dated as of June 1, 1996 (the "Third Supplemental
Indenture") and in accordance therewith the Company issued a series of
Debentures designated the "8 1/4% Junior Subordinated Deferrable Interest
Debentures, Series C" in the aggregate principal amount of $223,712,000; and
WHEREAS, pursuant to the terms of the Indenture, the Company desires to
provide for the establishment of a new series of its Debentures to be known as
its [____%] Junior Subordinated Deferrable Interest Debentures, Series D (such
series being hereinafter referred to as the "Series D Debentures"), which Series
D Debentures will be issued to evidence a loan made to the Company of the
proceeds from the issuance by PacifiCorp Capital II, a Delaware business trust
(the "Trust") of preferred undivided beneficial interests in the assets of the
Trust (the "Preferred Securities") and common undivided beneficial interests in
the assets of the Trust (the "Common Securities") pursuant to the terms of an
Amended and Restated Trust Agreement (the "Trust Agreement") dated as of
[_______ __,] 1997 among the Company, as Depositor, The Bank of New York, as
Property Trustee, The Bank of New York (Delaware), as Delaware Trustee, the
Administrative Trustees named therein (the "Administrative Trustees"), and the
holders from time to time of undivided beneficial interests in the assets of the
Trust, the form and substance of such Series D Debentures and the terms,
provisions and conditions thereof to be set forth as provided in the Indenture
and this Fourth Supplemental Indenture; and
WHEREAS, the Company desires and has requested the Trustee to join with
it in the execution and delivery of this Fourth Supplemental Indenture, and all
requirements necessary to make this Fourth Supplemental Indenture a valid
instrument, in accordance with its terms, and to make the Series D Debentures,
when executed by the Company and authenticated and delivered by the Trustee,
the valid obligations of the Company, have been performed and fulfilled, and the
execution and delivery hereof have been in all respects duly authorized;
NOW, THEREFORE, in consideration of the purchase and acceptance of the
Series D Debentures by the holders thereof, and for the purpose of setting
forth, as provided in the Indenture, the form and substance of the Series D
Debentures and the terms, provisions and conditions thereof, the Company
covenants and agrees with the Trustee as follows:
ARTICLE ONE
Additional Definitions
SECTION 1.01. For all purposes of this Fourth Supplemental Indenture,
capitalized terms used herein without definition shall have the meanings
specified in the Indenture.
SECTION 1.02. The terms defined in this Section, for all purposes of
this Fourth Supplemental Indenture, shall have the respective meanings specified
in this Section.
"Additional Sums" has the meaning specified in Section 5.05 of this
Fourth Supplemental Indenture.
"Additional Taxes" means the sum of any additional taxes, duties and
other governmental charges to which the Trust has become subject from time to
time as a result of a Tax Event.
"Common Securities" has the meaning specified in the fifth recital of
this Fourth Supplemental Indenture.
"Distributions" means amounts payable in respect of the Preferred
Securities as provided in the Trust Agreement.
"Extension Period" has the meaning specified in Section 4.01 of this
Fourth Supplemental Indenture.
"Guarantee" means the guarantee by the Company of Distributions to the
extent provided in the Guarantee Agreement, between the Company and The Bank of
New York, as guarantee trustee.
"Investment Company Event" means, in respect of the Trust, the receipt
by the Trust of an Opinion of Counsel, rendered by a law firm having a
recognized national tax and securities practice, to the effect that, as a result
of the occurrence of a change in law or regulation or a change in interpretation
or application of law or regulation by any legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law"), the Trust is or
will be considered an "investment company" that is required to be registered
under the 1940 Act, which Change in 1940 Act Law becomes effective on or after
the date of original issuance of the Preferred Securities of the Trust.
"1940 Act" means the Investment Company Act of 1940, as amended.
"Preferred Securities" has the meaning specified in the fifth recital
of this Fourth Supplemental Indenture.
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"Property Trustee" means, in respect of the Trust, the commercial bank
or trust company identified as the "Property Trustee" in the fifth recital of
this Fourth Supplemental Indenture, solely in its capacity as Property Trustee
of the Trust under the Trust Agreement and not in its individual capacity, or
its successor in interest in such capacity, or any successor property trustee
appointed as therein provided.
"Special Event" means a Tax Event or an Investment Company Event.
"Tax Event" means the receipt by the Trust or the Company of an Opinion
of Counsel, rendered by a law firm having a recognized national tax
and securities practice, to the effect that, as a result of any amendment to, or
change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein, or as a result of any official
administrative pronouncement or judicial decision interpreting or applying such
laws or regulations, which amendment or change is effective or which
pronouncement or decision is announced on or after the date of issuance of the
Preferred Securities, there is more than an insubstantial risk that (i) the
Trust is, or will be within 90 days of the date of such Opinion of Counsel,
subject to United States federal income tax with respect to income received or
accrued on the corresponding Series D Debentures, (ii) interest payable by the
Company on the Series D Debentures is not, or within 90 days of the date of such
Opinion of Counsel, will not be, deductible by PacifiCorp, in whole or in part,
for United States federal income tax purposes or (iii) the Trust is, or will be
within 90 days of the date of such Opinion of Counsel, subject to more than a de
minimis amount of other taxes, duties or other governmental charges.
"Trust" has the meaning specified in the fifth recital of this Fourth
Supplemental Indenture.
"Trust Agreement" has the meaning specified in the fifth recital of
this Fourth Supplemental Indenture.
ARTICLE TWO
General Terms and Conditions of
the Series D Debentures
SECTION 2.01. There shall be and is hereby authorized a series of
Debentures designated the "[_____%] Junior Subordinated Deferrable Interest
Debentures, Series D," limited in aggregate principal amount to [$____________],
which amount shall be as set forth in any written order of the Company for the
authentication and delivery of Series D Debentures. The Series D Debentures
shall mature and the principal shall be due and payable, together with all
accrued and unpaid interest thereon, on [_______ ___, _____]; The Series D
Debentures shall be issued in the form of registered Series D Debentures without
coupons.
SECTION 2.02. The Series D Debentures shall be issued in certificated
form and registered in the name of the Property Trustee or its nominee, subject
to the exchange of such certificated Series D Debentures for a Global Debenture
upon a distribution of Series D Debentures to the holders of Preferred
Securities as provided in the Trust Agreement. Series D Debentures represented
by a Global Debenture will not be exchangeable for, and will not otherwise be
issuable as, Series D Debentures in certificated form, except as provided in
Section 2.11 of the Indenture and except if there shall have occurred and be
continuing an Event of Default and the holders of a majority in aggregate
principal amount of Series D Debentures determine to discontinue the system of
book-entry transfers through the Depositary. Principal and interest on the
Series D Debentures will be payable,
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the transfer of such Series D Debentures will be registrable and such Series D
Debentures will be exchangeable for Series D Debentures bearing identical terms
and provisions at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York; provided, however,
that payment of interest may be made at the option of the Company by check
mailed to the registered holder at such address as shall appear in the Debenture
Register or, with respect to a registered holder of $1,000,000 or more in
aggregate principal amount of Series D Debentures who has delivered a written
request to the Trustee at least 14 days prior to the relevant Interest Payment
Date (as defined in Section 2.03 below) electing to have payments made by wire
transfer to a designated account in the United States, by wire transfer of
immediately available funds to such designated account. The Company and the
Trustee will act as co-paying agents for the Series D Debentures. Payments of
principal of and interest on the Series D Debentures issued as a Global
Debenture will be made to the Depository.
SECTION 2.03. Each Series D Debenture will bear interest at the rate of
[____%] per annum from and including the original date of issuance or from the
most recent Interest Payment Date referred to below to which interest has been
paid or duly provided for until the principal thereof becomes due and payable,
and on any overdue principal and (to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
same rate per annum, payable quarterly in arrears on March 31, June 30,
September 30 and December 31 of each year (each, an "Interest Payment Date"),
commencing on [______ __,] 1997, to the person in whose name such Series D
Debenture or any predecessor Series D Debenture is registered at the close of
business on the Business Day next preceding that Interest Payment Date (each, a
"Record Date"); provided, however, that if the Series D Debentures shall not be
held by the Property Trustee or be in the form of a Global Debenture, the record
date shall be the 15th day of the last month of each calendar quarter. Any such
interest installment not punctually paid or duly provided for on any Interest
Payment Date shall forthwith cease to be payable to the registered holder on the
relevant Record Date, and may be paid to the person in whose name the Series D
Debenture (or one or more predecessor Debentures) is registered at the close of
business on a special record date to be fixed by the Trustee for the payment of
such defaulted interest, notice whereof shall be given to the registered holders
of the Series D Debentures not less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Series D
Debentures may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture; provided, however, that
interest (other than interest described in the next sentence) shall not be
considered payable by the Company on any Interest Payment Date falling within an
Extension Period, unless the Company has elected to make a full or partial
payment of interest accrued on the Series D Debentures on that Interest Payment
Date. Any partial payment of interest accrued on the Series D Debentures on any
Interest Payment Date falling within an Extension Period shall be paid pro rata
to such registered holders based upon the principal amount of Series D
Debentures then held by such registered holders.
The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months and, for any period shorter than
a full calendar month, on the basis of the actual number of days elapsed in such
period. In the event that any date on which interest is payable on the Series D
Debentures is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day (without any reduction in interest or
other payments in respect of such early payments), in each case with the same
force and effect as if made on the date such payment was originally payable.
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ARTICLE THREE
Redemption of the Series D Debentures
SECTION 3.01. Subject to the terms of Article Three of the Indenture,
the Company shall have the right to redeem the Series D Debentures, in whole, at
any time, or in part, from time to time, on or after [_____ __, ____], at a
redemption price equal to 100% of the principal amount of Series D Debentures to
be redeemed plus any accrued and unpaid interest thereon to the date of such
redemption. If the Series D Debentures are only partially redeemed pursuant to
this Section, the Series D Debentures will be redeemed pro rata by the Trustee.
The Company may not redeem the Series D Debentures in part unless all accrued
and unpaid interest has been paid in full on all outstanding Series D Debentures
for all interest periods terminating on or prior to the date of redemption.
SECTION 3.02. If a Special Event in respect of the Trust shall occur
and be continuing, the Company may, at its option, redeem the Series D
Debentures at any time within 90 days of the occurrence of such Special Event,
in whole, but not in part, subject to the provisions of the Indenture. The
redemption price for any Series D Debenture so redeemed shall be equal to 100%
of the principal amount of the Series D Debentures to be redeemed plus any
accrued and unpaid interest thereon to the date of redemption.
ARTICLE FOUR
Extension of Interest Payment Period
SECTION 4.01. Subject to Section 4.06 of the Indenture and Section 5.06
of this Fourth Supplemental Indenture, so long as no Event of Default has
occurred and is continuing, the Company shall have the right, at any time during
the term of the Series D Debentures, to defer the payment of interest on such
Series D Debentures at any time and from time to time for a period not to exceed
20 consecutive calendar quarters from the last Interest Payment Date to which
interest was paid in full (each, an "Extension Period"), during which periods
the Company shall have the right to make partial payments of interest on any
Interest Payment Date, and at the end of such Extension Period the Company shall
pay all interest then accrued and unpaid thereon. Prior to the termination of
any such Extension Period, the Company may further extend the interest payment
period, provided that such Extension Period together with all such previous and
further extensions of such Extension Period shall not exceed 20 consecutive
quarters or extend beyond the maturity of the Series D Debentures. No such
Extension Period shall end on a date other than an Interest Payment Date. Upon
termination of any such Extension Period and upon the payment of all accrued and
unpaid interest then due, the Company may elect to begin a new Extension Period,
subject to the above requirements. No interest shall be due and payable during
an Extension Period, except at the end thereof.
SECTION 4.02. The Company shall give the Trustee and the Administrative
Trustees written notice of (i) any election by the Company to initiate an
Extension Period and the duration thereof, (ii) any election by the Company to
extend an Extension Period beyond the Interest Payment Date on which that
Extension Period is then scheduled to terminate and the duration of such
extension and (iii) any election by the Company to make a full or partial
payment of interest accrued on the Series D Debentures on any Interest Payment
Date during an Extension Period and the amount of such payment. In no event
shall such notice by the Company be given less than 15 Business Days prior to
the later of (A) the Record Date next preceding the applicable Interest Payment
Date and (B) five Business Days prior to such Interest Payment Date. Upon
receipt of any such notice, the Trustee shall give written notice of the
Company's election by mail to the Series D Debentureholders not less than 10
Business Days prior to such Interest Payment Date. The Company shall make a
public
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announcement of any such election in accordance with New York Stock Exchange
rules not less than five Business Days prior to such Record Date.
ARTICLE FIVE
Additional Terms Relating to the Preferred Securities
SECTION 5.01. (a) For so long as any Preferred Securities remain
outstanding, if, upon an Event of Default, the Trustee fails or the holders of
not less than 25% in principal amount of the outstanding Series D Debentures
fail to declare the principal of all of the Series D Debentures to be
immediately due and payable, the holders of at least 25% in aggregate
liquidation preference of the Preferred Securities then outstanding
(determined in accordance with the Trust Agreement) shall have such right by a
notice in writing to the Company and the Trustee; and upon any such declaration
such principal amount of and the accrued interest on all of the Series D
Debentures shall become immediately due and payable, provided that the payment
of principal and interest on such Series D Debentures shall remain subordinated
to the extent provided in the Indenture.
(b) For so long as any Preferred Securities remain outstanding, if,
upon an Event of Default, the Trustee fails to proceed to enforce any right
available to the holders of the Series D Debentures for 60 days, the holders of
at least 25% in aggregate liquidation preference of the Preferred Securities
then outstanding (determined in accordance with the Trust Agreement) shall have
the right, to the fullest extent permitted by law, to directly institute
proceedings for enforcement of such rights.
(c) For so long as any Preferred Securities remain outstanding, to the
fullest extent permitted by law, upon the occurrence of an Event of Default
described in Section 6.01(a)(1) or 6.02(a)(2) of the Indenture, any holder of
Preferred Securities shall have the right to institute a proceeding directly
against the Company for enforcement of payment to such holder of the principal
of or interest on the Series D Debentures having a principal amount equal to the
aggregate liquidation preference of the related Preferred Securities held by
such holder after the due date specified for such payment in the Series D
Debentures.
SECTION 5.02. For so long as any Preferred Securities remain
outstanding, if the holders of a majority in aggregate principal amount of the
Series D Debentures fail to waive an Event of Default (or annul any declaration
of acceleration) in accordance with Section 6.06 of the Indenture, the holders
of a majority in aggregate liquidation preference of the Preferred Securities
then outstanding (determined in accordance with the Trust Agreement) have such
right.
SECTION 5.03. For so long as any Preferred Securities remain
outstanding, the Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, and no Person shall consolidate with or merge into
the Company or convey, transfer or lease its properties and assets substantially
as an entirety to the Company, unless such consolidation, merger, conveyance,
transfer or lease is permitted under the Trust Agreement and the Guarantee and
does not give rise to any breach or violation of the Trust Agreement or the
Guarantee.
SECTION 5.04. For so long as any Preferred Securities remain
outstanding, the Company shall not terminate the Indenture or amend or
supplement the Indenture in any manner that materially adversely affects the
interests of the holders of the Preferred Securities, and no waiver of any Event
of
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Default (or annulment of any declaration of acceleration) or compliance with any
covenant under the Indenture shall be effective without the prior consent to
such waiver of the holders of at least a majority of the aggregate liquidation
preference of such Preferred Securities then outstanding (determined in
accordance with the Trust Agreement) unless and until the principal of the
Series D Debentures and all accrued and unpaid interest thereon have been paid
in full.
SECTION 5.05. In the event that (i) the Trust is the holder of all of
the Outstanding Series D Debentures, (ii) a Tax Event in respect of the Trust
shall have occurred and be continuing and (iii) the Company shall not have (a)
redeemed the Series D Debentures pursuant to Section 3.02 of this Fourth
Supplemental Indenture or (b) terminated the Trust pursuant to Section 902(b) of
the Trust Agreement, the Company shall pay to the Trust (and its permitted
successors or assigns under the Trust Agreement) for so long as the Trust (or
its permitted successor or assignee) is the registered holder of any Series D
Debentures, such additional amounts as may be necessary in order that the amount
of Distributions (including any Additional Amounts (as defined in the Trust
Agreement)) then due and payable by the Trust on the related Preferred
Securities and Common Securities that at any time remain outstanding in
accordance with the terms thereof shall not be reduced as a result of any
Additional Taxes (the "Additional Sums"). Whenever in the Indenture or the
Series D Debentures there is a reference in any context to the payment of
principal of or interest on the Series D Debentures, such mention shall be
deemed to include mention of the payments of the Additional Sums provided for in
this paragraph to the extent that, in such context, Additional Sums are, were or
would be payable in respect thereof pursuant to the provisions of this paragraph
and express mention of the payment of Additional Sums (if applicable) in any
provisions hereof shall not be construed as excluding Additional Sums in those
provisions hereof where such express mention is not made, provided, however,
that the deferral of the payment of interest pursuant to Section 4.01 of this
Fourth Supplemental Indenture or the Series D Debentures shall not defer the
payment of any Additional Sums that may be due and payable during such interest
payment period.
SECTION 5.06. For so long as any Preferred Securities remain
outstanding, the Company covenants and agrees with each holder of Series D
Debentures issued to the Trust that it will not, and it will not permit any
Subsidiary of the Company to, (i) declare, set aside or pay any dividend or
distribution on, or repurchase, redeem, or otherwise acquire or make any sinking
fund payment with respect to, any shares of the Company's capital stock or (ii)
make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities that rank pari passu with or junior in
interest to the Series D Debentures or make any guarantee payments with respect
to the foregoing (other than (a) dividends or distributions in shares of its
capital stock or in rights to acquire shares of its capital stock, (b)
conversions into or exchanges for shares of its capital stock, (c) redemptions,
purchases or other acquisitions of shares of its capital stock made for the
purpose of an employee incentive plan or benefit plan of the Company or any of
its subsidiaries and mandatory redemptions or sinking fund payments with respect
to any series of Preferred Stock of the Company that are subject to mandatory
redemption or sinking fund requirements, provided that the aggregate stated
value of all such series outstanding at the time of any such payment does not
exceed five percent of the aggregate of (1) the total principal amount of all
bonds or other securities representing secured indebtedness issued or assumed by
the Company and then outstanding and (2) the capital and surplus of the Company
to be stated on the books of account of the Company after giving effect to such
payment, provided, however, that any moneys deposited in any sinking fund and
not in violation of this provision may thereafter be applied to the purchase or
redemption of such Preferred Stock in accordance with the terms of such sinking
fund without regard to the restrictions contained in this provision, and (d)
payments under any guarantee by the Company with respect to any securities of a
subsidiary of the Company, provided that the proceeds from the issuance of such
securities were used
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to purchase Debentures of any series) if at such time (i) there shall have
occurred any event of which the Company has actual knowledge that (a) with the
giving of notice or the lapse of time or both, would constitute an Event of
Default hereunder and (b) in respect of which the Company shall not have taken
reasonable steps to cure, (ii) the Company shall be in default with respect to
its payment of any obligations under the Guarantee or (iii) the Company shall
have given notice of its election to begin an Extension Period as provided
herein and shall not have rescinded such notice, or such period, or any
extension thereof, shall be continuing.
SECTION 5.07. For so long as any Preferred Securities remain
outstanding, the Company also covenants with each holder of Series D Debentures
issued to the Trust (i) to maintain directly or indirectly 100% ownership of the
Common Securities of the Trust; provided, however, that any permitted successor
of the Company under the Indenture may succeed to the Company's ownership of
such Common Securities, (ii) not to voluntarily terminate, wind-up or liquidate
the Trust, except (a) in connection with a distribution of the Series D
Debentures to the holders of Preferred Securities in liquidation of the Trust or
(b) in connection with certain mergers, consolidations or amalgamations
permitted by the Trust Agreement and (iii) to use its reasonable efforts,
consistent with the terms and provisions of the Trust Agreement, to cause the
Trust to remain classified as a grantor trust and not to be classified as an
association taxable as a corporation for United States federal income tax
purposes.
ARTICLE SIX
Form of Series D Debenture
The Series D Debentures and the Trustee's Certificate of Authentication
to be endorsed thereon are to be substantially in the following forms:
(FORM OF FACE OF DEBENTURE)
[If the Debenture is to be issued as a Global Debenture, insert--This
Debenture is a Global Debenture within the meaning of the Indenture hereinafter
referred to and is registered in the name of a Depository or a nominee of a
Depository. This Debenture is exchangeable for Debentures registered in the name
of a person other than the Depository or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this Debenture
(other than a transfer of this Debenture as a whole by the Depository to a
nominee of the Depository or by a nominee of the Depository to the Depository or
another nominee of the Depository) may be registered except in limited
circumstances.
Unless this Debenture is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York) to the issuer or its
agent for registration of transfer, exchange or payment, and any Debenture
issued is registered in the name of Cede & Co. or such other name as requested
by an authorized representative of The Depository Trust Company and any payment
hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the registered owner hereof,
Cede & Co., has an interest herein.]
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No.___________ $__________
CUSIP No. ______________
PACIFICORP
[-----%]
JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE,
SERIES D
PACIFICORP, a corporation duly organized and existing under the laws of
the State of Oregon (herein referred to as the "Company", which term includes
any successor corporation under the Indenture), for value received, hereby
promises to pay to _____________________ or registered assigns, the principal
sum of $____, on [______ __, ____], and to pay interest on such principal sum
from and including [______ __], 1997 or from the most recent interest payment
date (each such date, an "Interest Payment Date") to which interest has been
paid or duly provided for, payable quarterly in arrears on March 31, June 30,
September 30 and December 31 of each year, commencing on [______ __], 1997, at
the rate of [____%] per annum, until the principal hereof shall have become due
and payable, and on any overdue principal and premium, if any, and (to the
extent that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the same rate per annum. The amount of
interest payable on any Interest Payment Date shall be computed on the basis of
a 360-day year of twelve 30-day months and, for any period shorter than a full
calendar month, on the basis of the actual number of days elapsed in such
period. In the event that any date on which interest is payable on this
Debenture is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day (without any reduction in interest or
other payments in respect of such early payments), in each case with the same
force and effect as if made on such date. The interest installment so payable,
and punctually paid or duly provided for on any Interest Payment Date will, as
provided in the Indenture, be paid to the person in whose name this Debenture
(or one or more Predecessor Debentures, as defined in the Indenture) is
registered at the close of business on the Business Day next preceding that
Interest Payment Date (each a "Record Date"); provided, however, that if this
Debenture shall not be held by the Property Trustee or be in the form of a
Global Debenture the record date shall be the 15th day of the last month of each
calendar quarter. Any such interest installment not punctually paid or duly
provided for on any Interest Payment Date shall forthwith cease to be payable to
the registered holder on the relevant Record Date, and may be paid to the person
in whose name this Debenture (or one or more Predecessor Debentures) is
registered at the close of business on a special record date to be fixed by the
Trustee for the payment of such defaulted interest, notice whereof shall be
given to the registered holders of this series of Debentures not less than 10
days prior to such special record date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Debentures may then be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture
hereinafter referred to; provided, however, that interest shall not be
considered payable by the Company on any Interest Payment Date falling within an
Extension Period (as defined below), unless the Company has elected to make a
full or partial payment of interest accrued on this Debenture on that Interest
Payment Date. Any partial payment of interest accrued on this series of
Debentures on any Interest Payment Date falling within an Extension Period shall
be paid pro rata
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to the registered holder of this Debenture based upon the principal amount of
this Debenture in relation to the aggregate principal amount of all Debentures
of this series then outstanding. The principal of (and premium, if any) and the
interest on this Debenture shall be payable at the office or agency of the
Company maintained for that purpose in the Borough of Manhattan, The City of New
York, in any coin or currency of the United States of America which at the time
of payment is legal tender for payment of public and private debts; provided,
however, that payment of interest may be made at the option of the Company by
check mailed to the registered holder at such address as shall appear in the
Debenture Register or, with respect to a registered holder of $1,000,000 or more
in aggregate principal amount of Debentures who has delivered a written request
to the Trustee at least 14 days prior to the relevant Interest Payment Date
electing to have payments made by wire transfer to a designated account in the
United States, by wire transfer of immediately available funds to such
designated account.
The indebtedness evidenced by this Debenture is, to the extent provided
in the Indenture, subordinated and junior in right of payment to the prior
payment in full of all Senior Indebtedness, and this Debenture is issued subject
to the provisions of the Indenture with respect thereto. Each holder of this
Debenture, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on its behalf to take such
action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee its attorney-in-fact for
any and all such purposes. Each holder hereof, by its acceptance hereof, hereby
waives all notice of the acceptance of the subordination provisions contained
herein and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon
those provisions.
This Debenture shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
The provisions of this Debenture are contained on the reverse side
hereof and such continued provisions shall for all purposes have the same effect
as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Instrument to be
executed.
PACIFICORP
By
--------------------------------------
William E. Peressini, Vice President
and Treasurer
Attest:
- ---------------------------------------
Lenore M. Martin, Assistant Secretary
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CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures described in
the within-mentioned Indenture.
Dated:
THE BANK OF NEW YORK
- ---------------------------------- -----------------------------------
as Trustee or as Authentication Agent
By
------------------------------- -----------------------------------
Authorized Signatory Authorized Signatory
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(REVERSE)
[____%] JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE,
SERIES D
(continued)
This Debenture is one of a duly authorized series of debentures of the
Company (herein sometimes referred to as the "Debentures"), specified in the
Indenture (as defined below), all issued or to be issued in one or more series
under and pursuant to an Indenture dated as of May 1, 1995 duly executed and
delivered between the Company and THE BANK OF NEW YORK, a New York banking
corporation, as Trustee (herein referred to as the "Trustee"), as supplemented
by the First Supplemental Indenture dated as of May 1, 1995, the Second
Supplemental Indenture dated as of October 1, 1995, the Third Supplemental
Indenture dated as of June 1, 1996 and the Fourth Supplemental Indenture dated
as of [_________ __,] 1997 between the Company and the Trustee (such Indenture
as so supplemented being hereinafter referred to as the "Indenture"), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the holders of the
Debentures. By the terms of the Indenture, the Debentures are issuable in series
which may vary as to amount, date of maturity, rate of interest and in other
respects as in the Indenture provided. This series of Debentures is limited in
aggregate principal amount as specified in the Fourth Supplemental Indenture.
Subject to the terms of Article Three of the Indenture, the Company
shall have the right to redeem the Debentures of this series at the option of
the Company, without premium or penalty, in whole or in part at any time and
from time to time on or after [______ __, ____] (an "Optional Redemption"), at a
redemption price equal to 100% of the principal amount of the Debentures of this
series to be redeemed plus any accrued and unpaid interest thereon to the date
of such redemption. If the Debentures of this series are only partially redeemed
by the Company pursuant to an Optional Redemption, the Debentures of this series
will be redeemed pro rata by the Trustee.
If a Special Event in respect of the Trust shall occur and be
continuing, the Company may, at its option, redeem this Debenture at any time
within 90 days of the occurrence of such Special Event, in whole, but not in
part, subject to the provisions of the Indenture. The redemption price for any
Debenture of this series so redeemed shall be equal to 100% of the principal
amount thereof plus accrued and unpaid interest to the date of such redemption.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures of this series for the unredeemed portion hereof will be
issued in the name of the holder hereof upon the cancellation hereof.
In case an Event of Default with respect to the Debentures of this
series shall have occurred and be continuing, the principal of all of the
Debentures of this series may be declared, and upon such declaration shall
become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of the Debentures of this series upon compliance by the
Company with certain conditions set forth therein.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the time
Outstanding, as defined in the Indenture, to execute supplemental indentures for
the purpose of adding any provisions to, changing in any manner or eliminating
any of
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the provisions of the Indenture or of any supplemental indenture or of modifying
in any manner the rights of the holders of the Debentures; provided, however,
that no such supplemental indenture shall (i) extend the fixed maturity of any
Debentures of any series, reduce the principal amount thereof, reduce the rate
or extend the time of payment of interest thereon or reduce any premium payable
upon the redemption thereof, without the consent of the holder of each Debenture
so affected or (ii) reduce the aforesaid percentage of Debentures, the holders
of which are required to consent to any such supplemental indenture, without the
consent of the holders of each Debenture then outstanding and affected thereby.
The Indenture also contains provisions permitting the holders of a majority in
aggregate principal amount of the Debentures of all series at the time
outstanding affected thereby, on behalf of the holders of the Debentures of such
series, to waive any past default in the performance of any of the covenants
contained in the Indenture, or established pursuant to the Indenture with
respect to such series, and its consequences, except a default in the payment of
the principal of or premium, if any, or interest on any of the Debentures of
such series, which default may be waived by the unanimous consent of the holders
affected. Any such consent or waiver by the registered holder of this Debenture
(unless revoked as provided in the Indenture) shall be conclusive and binding
upon such holder and upon all future holders and owners of this Debenture and of
any Debenture issued in exchange herefor or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether or not any
notation of such consent or waiver is made upon this Debenture.
For so long as any Preferred Securities (as defined in the Indenture)
remain outstanding, if, upon an Event of Default, the Trustee fails or the
holders of not less than 25% in principal amount of the outstanding Debentures
of this series fail to declare the principal of all of the Debentures of this
series to be immediately due and payable, the holders of at least 25% in
aggregate liquidation preference of the Preferred Securities then outstanding
(determined in accordance with the related Trust Agreement) shall have such
right by a notice in writing to the Company and the Trustee; and upon any such
declaration such principal amount of and the accrued interest on all of the
Debentures of this series shall become immediately due and payable, provided
that the payment of principal and interest on such Debentures shall remain
subordinated to the extent provided in the Indenture.
For so long as any Preferred Securities remain outstanding, if, upon an
Event of Default, the Trustee fails to proceed to enforce any right available to
the holders of the Series D Debentures for 60 days, the holders of at least 25%
in aggregate liquidation preference of the Preferred Securities then outstanding
(determined in accordance with the Trust Agreement) shall have the right, to the
fullest extent permitted by law, to directly institute proceedings for
enforcement of such rights.
For so long as any Preferred Securities remain outstanding, to the
fullest extent permitted by law, upon the occurrence of an Event of Default
described in Section 6.01(a)(1) or 6.02(a)(2) of the Indenture, any holder of
Preferred Securities shall have the right to institute a proceeding directly
against the Company for enforcement of payment to such holder of the principal
of or interest on the Series D Debentures having a principal amount equal to the
aggregate liquidation preference of the related Preferred Securities held by
such holder after the due date specified for such payment in the Series D
Debentures.
No reference herein to the Indenture and no provision of this Debenture
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Debenture at the time and place and at the rate and in the
money herein prescribed.
Subject to the provisions of the Indenture, the Company shall have the
right, at any time during the term of this series of Debentures, to defer the
payment of interest on this series of
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Debentures at any time and from time to time for a period not to exceed 20
consecutive calendar quarters from the last Interest Payment Date to which
interest was paid in full (each, an "Extension Period") during which periods the
Company shall have the right to make partial payments of interest on any
Interest Payment Date, and at the end of such Extension Period the Company shall
pay all interest then accrued and unpaid thereon. Prior to the termination of
any such Extension Period, the Company may further extend the interest payment
period, provided that such Extension Period together with all such previous and
further extensions of such Extension Period shall not exceed 20 consecutive
quarters or extend beyond the maturity of the Series D Debentures. Upon
termination of any such Extension Period and upon the payment of all accrued and
unpaid interest then due, the Company may select a new Extension Period, subject
to the above requirements. No interest shall be due and payable during an
Extension Period, except at the end thereof.
As provided in the Indenture and subject to certain limitations therein
set forth, this Debenture is transferable by the registered holder hereof on the
Debenture Register of the Company, upon surrender of this Debenture for
registration of transfer at the office or agency of the Company designated for
such purpose in the Borough of Manhattan, The City of New York, accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company and the Trustee duly executed by the registered holder hereof or its
attorney duly authorized in writing, and thereupon one or more new Debentures of
authorized denominations and for the same aggregate principal amount and series
will be issued to the designated transferee or transferees. No service charge
will be made for any such transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and any Debenture
Registrar may deem and treat the registered holder hereof as the absolute owner
hereof (whether or not this Debenture shall be overdue and notwithstanding any
notice of ownership or writing hereon made by anyone other than the Debenture
Registrar) for the purpose of receiving payment of or on account of the
principal hereof and premium, if any, and interest due hereon and for all other
purposes, and neither the Company nor the Trustee nor any paying agent nor any
Debenture Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
[If the Debenture is to be issued as a Global Debenture, insert--This
Global Debenture is exchangeable for Debentures in certificated form only under
certain limited circumstances set forth in the Indenture.] The Debentures of
this series are issuable in registered form without coupons in denominations of
$1,000 and any integral multiple thereof. As provided in the Indenture and
subject to certain limitations herein and therein set forth, Debentures of this
series so issued are exchangeable for a like aggregate principal amount of
Debentures of this series of a different authorized denomination, as requested
by the holder surrendering the same.
All terms used in this Debenture which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
14
ARTICLE SEVEN
Original Issue of Series D Debentures
Series D Debentures in the aggregate principal amount of
[$_______________] may, upon execution of this Fourth Supplemental Indenture, or
from time to time thereafter, be executed by the Company and delivered to the
Trustee for authentication, and the Trustee shall thereupon authenticate and
deliver such Debentures to or upon the written order of the Company,
signed by its Chairman, President or any Vice President and its Treasurer or an
Assistant Treasurer, without any further action by the Company.
ARTICLE EIGHT
Miscellaneous Provisions
SECTION 8.01. Except as otherwise expressly provided in this Fourth
Supplemental Indenture or in the form of Series D Debenture or otherwise clearly
required by the context hereof or thereof, all terms used herein or in the form
of Series D Debenture that are defined in the Indenture shall have the several
meanings respectively assigned to them thereby.
SECTION 8.02. The Indenture, as supplemented by the First Supplemental
Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture
and this Fourth Supplemental Indenture, is in all respects ratified and
confirmed, and this Fourth Supplemental Indenture shall be deemed part of the
Indenture in the manner and to the extent herein and therein provided.
SECTION 8.03. The recitals herein contained are made by the Company and
not by the Trustee, and the Trustee assumes no responsibility for the
correctness thereof. The Trustee makes no representation as to the validity or
sufficiency of this Fourth Supplemental Indenture.
SECTION 8.04. This Fourth Supplemental Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Supplemental Indenture to be duly executed on the date or dates indicated in the
acknowledgments and as of the day and year first above written.
PACIFICORP
By:
-------------------------------------
William E. Peressini, Vice President
and Treasurer
THE BANK OF NEW YORK, as Trustee
By:
-------------------------------------
15