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PACIFICORP
(AN OREGON CORPORATION)
TO
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
(A NEW YORK CORPORATION)
WHICH HEREIN RESIGNS AS CORPORATE TRUSTEE
AND
CHEMICAL BANK
(A NEW YORK CORPORATION)
HEREIN BECOMING SUCCESSOR CORPORATE TRUSTEE TO
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
AS TRUSTEE UNDER PACIFIC POWER &
LIGHT COMPANY'S MORTGAGE AND
DEED OF TRUST, DATED AS OF
JULY 1, 1947
---------------------
FIFTY-THIRD SUPPLEMENTAL INDENTURE
DATED AS OF AUGUST 1, 1994
SUPPLEMENTAL TO PACIFIC POWER & LIGHT COMPANY'S
MORTGAGE AND DEED OF TRUST
DATED AS OF JULY 1, 1947
---------------------
THIS INSTRUMENT GRANTS A SECURITY INTEREST BY A TRANSMITTING UTILITY
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS
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FIFTY-THIRD SUPPLEMENTAL INDENTURE
THIS INDENTURE, dated as of the 1st day of August, 1994 (hereinafter
referred to as the "Fifty-third Supplemental Indenture") is made as a supplement
to that certain Mortgage and Deed of Trust, dated as of July 1, 1947, as
heretofore amended and supplemented (the "Mortgage"), executed and delivered by
Pacific Power & Light Company, a Maine corporation that heretofore changed its
name to PacifiCorp (the "Original Mortgagor").
This Fifty-third Supplemental Indenture is entered into by and among (a)
PACIFICORP, a corporation of the State of Oregon into which the Original
Mortgagor heretofore was merged, whose address is 700 NE Multnomah, Portland,
Oregon 97232 (the "Company"); (b) MORGAN GUARANTY TRUST COMPANY OF NEW YORK, a
New York corporation whose address is 60 Wall Street, New York, New York 10260
(the "Resigning Corporate Trustee"); and (c) CHEMICAL BANK, a New York
corporation whose address is 450 West 33rd Street, New York, New York 10001 (the
"Successor Corporate Trustee" or "Trustee").
WHEREAS, the Mortgage (including all indentures supplemental thereto) was
recorded in the official records of the States of California, Idaho, Montana,
Oregon, Utah, Washington and Wyoming and various counties within said states in
which this Fifty-third Supplemental Indenture is to be recorded, and was filed
as a financing statement in accordance with the Uniform Commercial Code of each
of said states; and
WHEREAS, the Original Mortgagor executed, delivered, recorded and filed its
Supplemental Indentures as follows:
DATED AS OF
-------------------------
First April 1, 1950
Second March 1, 1952
Third September 1, 1952
Fourth April 1, 1954
Fifth August 1, 1954
Sixth October 1, 1955
Seventh January 1, 1957
Eighth September 1, 1957
Ninth January 1, 1958
Tenth July 1, 1958
2
DATED AS OF
-------------------------
Eleventh September 1, 1960
Twelfth June 22, 1961
Thirteenth April 1, 1962
Fourteenth December 1,1962
Fifteenth April 1, 1963
Sixteenth August 1, 1963
Seventeenth October 1, 1964
Eighteenth October 1, 1965
Nineteenth December 15, 1967
Twentieth May 1, 1969
Twenty-first November 1, 1969
Twenty-second July 1, 1970
Twenty-third February 1, 1971
Twenty-fourth October 1, 1971
Twenty-fifth October 1, 1972
Twenty-sixth January 1, 1974
Twenty-seventh October 1, 1974
Twenty-eighth May 1, 1975
Twenty-ninth January 1, 1976
Thirtieth July 1, 1976
Thirty-first December 1, 1976
Thirty-second January 1, 1977
Thirty-third November 1, 1977
Thirty-fourth April 1, 1979
Thirty-fifth October 1, 1980
Thirty-sixth March 1, 1981
Thirty-seventh October 15, 1981
Thirty-eighth August 1, 1982
Thirty-ninth April 1, 1983
Fortieth March 1, 1986
Forty-first July 1, 1986
Forty-second July 1, 1987;
and
3
WHEREAS, the Original Mortgagor has heretofore issued, in accordance with
the provisions of the Mortgage, bonds entitled and designated First Mortgage
Bonds, of the Series and in the principal amounts as follows:
AGGREGATE
PRINCIPAL AMOUNT AGGREGATE PRINCIPAL
SERIES DUE DATE ISSUED AMOUNT OUTSTANDING
------------------------------- -------------- ------------------ -------------------
1. First--3 1/4% 1977 $ 38,000,000 0
2. Second--3% 1980 9,000,000 0
3. Third--3 5/8% 1982 12,500,000 0
4. Fourth--3 3/4% 9/1/1982 7,500,000 0
5. Fifth--3 3/8% 1984 8,000,000 0
6. Sixth--3 1/2% 8/1/1984 30,000,000 0
7. Seventh--3 5/8% 1985 10,000,000 0
8. Eighth--5 3/8% 1987 12,000,000 0
9. Ninth--5 3/4% 9/1/1987 20,000,000 0
10. Tenth--4 1/4% 1988 15,000,000 0
11. Eleventh--4 3/8% 7/1/1988 20,000,000 0
12. Twelfth--5 1/8% 1990 20,000,000 0
13. Thirteenth--4 3/4% 1992 35,000,000 0
14. Fourteenth--4 1/2% 12/1/1992 32,000,000 0
15. Fifteenth--3 5/8% 11/1/1974 11,434,000 0
16. Sixteenth--3 5/8% 4/1/1978 4,500,000 0
17. Seventeenth--3 3/8% 8/1/1979 4,951,000 0
18. Eighteenth--4 1/8% 6/1/1981 5,849,000 0
19. Nineteenth--4 1/8% 10/1/1982 6,157,000 0
20. Twentieth--3 3/4% 3/1/1984 8,659,000 0
21. Twenty-first--4 3/8% 5/1/1986 14,454,000 0
22. Twenty-second--4 5/8% 1993 30,000,000 0
23. Twenty-third--4 5/8% 1994 30,000,000 $ 20,261,000
24. Twenty-fourth--5% 1995 30,000,000 14,168,000
25. Twenty-fifth--8% 1999 25,000,000 0
26. Twenty-sixth--8 3/4% 11/1/1999 20,000,000 0
27. Twenty-seventh--9 5/8% 2000 25,000,000 0
28. Twenty-eighth--7 7/8% 2001 40,000,000 0
29. Twenty-ninth--8% 10/1/2001 35,000,000 0
30. Thirtieth--7 3/4% 2002 30,000,000 19,744,000
31. Thirty-first--8 3/8% 2004 60,000,000 0
32. Thirty-second--9 7/8% 1983 70,000,000 0
33. Thirty-third--10 3/4% 1990 60,000,000 0
4
AGGREGATE
PRINCIPAL AMOUNT AGGREGATE PRINCIPAL
SERIES DUE DATE ISSUED AMOUNT OUTSTANDING
------------------------------- -------------- ------------------ -------------------
34. Thirty-fourth--10% 2006 75,000,000 0
35. Thirty-fifth--7 3/4% 7/1/2006 35,000,000 0
36. Thirty-sixth--8 5/8% 12/1/2006 50,000,000 0
37. Thirty-seventh--6 3/8% 1/1/2007 17,000,000 $ 8,190,000
38. Thirty-eighth--8 7/8% 11/1/2007 100,000,000 0
39. Thirty-ninth--10 1/4% 2009 100,000,000 0
40. Fortieth--14 3/4% 2010 50,000,000 0
41. Forty-first--15 5/8% 1991 75,000,000 0
42. Forty-second--18% 10/15/1991 100,000,000 0
43. Forty-third--Adjustable Rate 11/1/2002 50,000,000 13,234,000
44. Forty-fourth--12 5/8% 2013 100,000,000 0
45. Forty-fifth--8 5/8% 3/1/1996 80,000,000 0
46. Forty-sixth--8 1/2% 7/1/1996 75,000,000 0
47. Forty-seventh--9 3/8% 1997 50,000,000 50,000,000;
and
WHEREAS, the Original Mortgagor entered into a Reorganization Agreement and
Plan of Merger dated August 12, 1987, as amended, pursuant to which, among other
things, the Original Mortgagor was merged into the Company as of January 9,
1989, upon such terms as fully to preserve and in no respect to impair the Lien
or security of the Mortgage or any of the rights or powers of the trustees or
the bondholders thereunder; and
WHEREAS, pursuant to Article XVI of the Mortgage, the Company executed,
delivered, recorded and filed its Forty-third Supplemental Indenture dated as of
January 9, 1989, whereby the Company assumed and agreed to pay, duly and
punctually, the principal of and interest on the bonds issued under the
Mortgage, in accordance with the provisions of said bonds and coupons and the
Mortgage, and agreed to perform and fulfill all the covenants and conditions of
the Mortgage to be kept or performed by the Original Mortgagor, and whereby
Bankers Trust Company was appointed Corporate Trustee in succession to Morgan
Guaranty Trust Company of New York, resigned, under the Mortgage, and James F.
Conlan was appointed Co-Trustee in succession to R.E. Sparrow, resigned, under
the Mortgage; and
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WHEREAS, the Company executed, delivered, recorded and filed additional
Supplemental Indentures to the Mortgage as follows:
DATED AS OF
-------------------------
Forty-fourth March 31, 1989
Forty-fifth December 29, 1989
Forty-sixth March 31, 1991;
and
WHEREAS, pursuant to said Forty-sixth Supplemental Indenture, Morgan
Guaranty Trust Company of New York was appointed Corporate Trustee in succession
to Bankers Trust Company, resigned, under the Mortgage and James F. Conlan
resigned as Co-Trustee under the Mortgage and all the right, title and powers of
the Co-Trustee devolved upon the Corporate Trustee and its successors alone
until such time as a successor to the Co-Trustee shall be appointed; and
WHEREAS, the Company executed, delivered, recorded and filed additional
Supplemental Indentures to the Mortgage as follows:
DATED AS OF
-------------------------
Forty-seventh December 31, 1991
Forty-eighth March 15, 1992
Forty-ninth July 31, 1992
Fiftieth March 15, 1993
Fifty-first November 1, 1993;
Fifty-second June 1, 1994;
and
6
WHEREAS, the Company has heretofore issued, in accordance with the
provisions of the Mortgage, bonds entitled and designated First Mortgage Bonds,
of the Series and in the principal amounts as follows:
AGGREGATE AGGREGATE
PRINCIPAL AMOUNT PRINCIPAL AMOUNT
SERIES DUE DATE ISSUED OUTSTANDING
------------------------------------ ------------- ----------------- -----------------
48. Forty-eighth--Medium-Term Notes, various $ 125,000,000 $ 120,000,000
Series A
49. Forty-ninth--Medium-Term Notes, various 100,000,000 87,500,000
Series B
50. Fiftieth--Medium-Term Notes, Series various 150,000,000 144,714,391
C
51. Fifty-first--Medium-Term Notes, various 125,000,000 125,000,000
Series D
52. Fifty-second--C-U various 125,216,000 118,235,500
53. Fifty-third--Medium-Term Notes, various 250,000,000 250,000,000
Series E
54. Fifty-fourth--6 3/4% 4/1/2005 75,000,000 75,000,000
55. Fifty-fifth--Medium-Term Notes, various 250,000,000 250,000,000
Series F
56. Fifty-sixth--E-L various 35,600,000 35,600,000
57. Fifty-seventh Medium-Term Notes, various 250,000,000 250,000,000;
Series G
and
WHEREAS, in addition to the property described in the Mortgage, the Company
has acquired certain other property, rights and interests in property; and
WHEREAS, Section 8 of the Mortgage provides that the form of each series of
bonds (other than the First Series) issued thereunder and of the coupons to be
attached to the coupon bonds, if any, of such series shall be established by
Resolution of the Board of Directors of the Company; that the form of such
series, as established by said Board of Directors, shall specify the descriptive
title of the bonds and various other terms thereof; and that such series may
also contain such provisions not inconsistent with the provisions of the
Mortgage, as supplemented, as the Board of
7
Directors may, in its discretion, cause to be inserted therein expressing or
referring to the terms and conditions upon which such bonds are to be issued
and/or secured under the Mortgage; and
WHEREAS, Section 120 of the Mortgage provides, among other things, that any
power, privilege or right expressly or impliedly reserved to or in any way
conferred upon the Company by any provision of the Mortgage, whether such power,
privilege or right is in any way restricted or is unrestricted, may (to the
extent permitted by law) be in whole or in part waived or surrendered or
subjected to any restriction if at the time unrestricted or to additional
restriction if already restricted, and the Company may enter into any further
covenants, limitations or restrictions for the benefit of any one or more series
of bonds issued thereunder and provide that a breach thereof shall be equivalent
to a default under the Mortgage, or the Company may cure any ambiguity contained
therein, or in any supplemental indenture, or may (in lieu of establishment by
Resolution as provided in Section 8 of the Mortgage) establish the terms and
provisions of any series of bonds other than the First Series, by an instrument
in writing executed and acknowledged by the Company in such manner as would be
necessary to entitle a conveyance of real estate to record in all of the states
in which any property at the time subject to the Lien of the Mortgage shall be
situated; and the Trustee is further authorized by said Section 120 to join with
the Company in the execution of such instrument or instruments, and such
instrument, executed and acknowledged as aforesaid, shall be delivered to the
Trustee, and thereupon any modification of the provisions of the Mortgage
therein set forth, authorized by said Section 120, shall be binding upon the
parties to the Mortgage, their successors and assigns, and the holders of the
bonds and coupons thereby secured; provided, however, anything therein contained
to the contrary not withstanding, said Section 120 shall not be construed to
permit any act, waiver, surrender or restriction adversely affecting any bonds
then Outstanding under the Mortgage; and
WHEREAS, in Section 42 of the Mortgage the Original Mortgagor covenanted
that it would execute and deliver such supplemental indenture or indentures and
such further instruments and do such further acts
8
as might be necessary or proper to carry out more effectually the purposes of
the Mortgage and to make subject to the Lien of the Mortgage any property
thereafter acquired, made or constructed and intended to be subject to the Lien
thereof, and to transfer to any new trustee or trustees or co-trustee or
co-trustees, the estates, powers, instruments or funds held in trust thereunder;
and
WHEREAS, the Company now desires to create a new series of bonds and
(pursuant to the provisions of Section 120 of the Mortgage) to add to its
covenants and agreements contained in the Mortgage, as heretofore supplemented,
certain other covenants and agreements to be observed by it; and
WHEREAS, the execution and delivery by the Company of this Fifty-third
Supplemental Indenture has been duly authorized by the Board of Directors of the
Company by appropriate Resolutions;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
ARTICLE I
GRANTING CLAUSES
The Company, in consideration of the premises and of One Dollar ($1) to it
duly paid by the Trustee at or before the ensealing and delivery of these
presents, the receipt whereof is hereby acknowledged, and in further assurance
of the estate, title and rights of the Trustee under the Mortgage and in order
further to secure the payment of both the principal of and interest and premium,
if any, on the bonds from time to time issued under the Mortgage, according to
their tenor and effect, and the performance of all the provisions of the
Mortgage (including any instruments supplemental thereto and any modification
made as in the Mortgage provided) and of such bonds, and to confirm the Lien of
the Mortgage on certain after-acquired property, hereby grants, bargains, sells,
releases, conveys, assigns, transfers, mortgages, pledges, sets over and
confirms (subject, however, to Excepted Encumbrances as defined in Section 6 of
the Mortgage) unto Chemical Bank as Trustee under the Mortgage, and to its
successor or successors in said trust, and to said Trustee and its successors
and assigns forever, all property, real, personal
9
and mixed, owned by the Original Mortgagor as of the date of the Mortgage and
acquired by the Original Mortgagor or the Company after the date of the
Mortgage, subject to the provisions of subsection (I) of Section 87 of the
Mortgage and Section 2.02 of the Forty-third Supplemental Indenture thereto, of
the kind or nature specifically mentioned in Article XXI of the Mortgage or of
any other kind or nature (except any herein or in the Mortgage expressly
excepted), now owned, or, subject to the provisions of subsection (I) of Section
87 of the Mortgage and Section 2.02 of the Forty-third Supplemental Indenture
thereto, hereafter acquired by the Company (by purchase, consolidation, merger,
donation, construction, erection or in any other way) and wheresoever situated,
including the properties described in Article VI hereof, and including (without
in anywise limiting or impairing by the enumeration of the same the scope and
intent of the foregoing) all lands, power sites, flowage rights, water rights,
water locations, water appropriations, ditches, flumes, reservoirs, reservoir
sites, canals, raceways, dams, dam sites, aqueducts, and all other rights or
means for appropriating, conveying, storing and supplying water; all rights of
way and roads; all plants for the generation of electricity by steam, water
and/or other power; all power houses, gas plants, street lighting systems,
standards and other equipment incidental thereto, telephone, radio, television
and air conditioning systems and equipment incidental thereto, water works,
water systems, steam heat and hot water plants, substations, lines, service and
supply systems, bridges, culverts, tracks, ice or refrigeration plants and
equipment, offices, buildings and other structures and the equipment thereof;
all machinery, engines, boilers, dynamos, electric, gas, and other machines,
regulators, meters, transformers, generators, motors, electrical, gas and
mechanical appliances, conduits, cables, water, steam heat, gas or other pipes,
gas mains and pipes, service pipes, fittings, valves and connections, pole and
transmission lines, wires, cables, tools, implements, apparatus, furniture and
chattels; all franchises, consents or permits; all lines for the transmission
and distribution of electric current, gas, steam heat or water for any purpose,
including towers, poles, wires, cables, pipes, conduits, ducts and all apparatus
for use in connection therewith; all real estate, lands, easements, servitudes,
licenses, permits, franchises, privileges, rights of way and other rights in or
relating to public or
10
private property, real or personal, or the occupancy of such property and
(except as herein or in the Mortgage expressly excepted) all right, title and
interest the Company may now have or may hereafter acquire in and to any and all
property of any kind or nature wheresoever situated;
And the Company does hereby confirm that the Company will not cause or
consent to a partition, either voluntarily or through legal proceedings, of
property subject to the Lien of the Mortgage whether herein described or
heretofore or hereafter acquired, in which its ownership shall be as a tenant in
common, except as permitted by and in conformity with the provisions of the
Mortgage and particularly of Article XI thereof;
TOGETHER WITH and all and singular the tenements, hereditaments,
prescriptions, servitudes and appurtenances belonging or in anywise appertaining
to the aforementioned property or any part thereof, with the reversion and
reversions, remainder and remainders and (subject to the provisions of Section
57 of the Mortgage) the tolls, rents, revenues, issues, earnings, income,
product and profits thereof, and all the estate, right, title and interest and
claim whatsoever, at law as well as in equity, which the Company now has or
(subject to the provisions of subsection (I) of Section 87 of the Mortgage and
Section 2.02 of the Forty-third Supplemental Indenture thereto) may hereafter
acquire in and to the aforementioned property and franchises and every part and
parcel thereof.
IT IS HEREBY AGREED by the Company that, subject to the provisions of
subsection (I) of Section 87 of the Mortgage and Section 2.02 of the Forty-third
Supplemental Indenture thereto, all the property, rights and franchises acquired
by the Company (by purchase, consolidation, merger, donation, construction,
erection or in any other way) after the date hereof, except any herein or in the
Mortgage expressly excepted, shall be and are as fully granted and conveyed
hereby and by the Mortgage, and as fully embraced within the Lien of the
Mortgage, as if such property, rights and franchises were now owned by the
Company and were specifically described herein or in the Mortgage and conveyed
hereby or thereby;
Provided that the following are not and are not intended to be now or
hereafter granted, bargained, sold, released, conveyed, assigned, transferred,
mortgaged, pledged, set over or confirmed hereunder and are
11
hereby expressly excepted from the Lien and operation of the Mortgage, viz.: (1)
cash, shares of stock, bonds, notes and other obligations and other securities
not hereafter specifically pledged, paid, deposited, delivered or held under the
Mortgage or covenanted so to be; (2) merchandise, equipment, apparatus,
materials or supplies held for the purpose of sale or other disposition in the
usual course of business; fuel, oil and similar materials and supplies
consumable in the operation of any of the properties of the Company; all
aircraft, tractors, rolling stock, trolley coaches, buses, motor coaches,
automobiles, motor trucks, and other vehicles and materials and supplies held
for the purpose of repairing or replacing (in whole or part) any of the same;
(3) bills, notes and accounts receivable, judgments, demands and choses in
action, and all contracts, leases and operating agreements not specifically
pledged under the Mortgage or covenanted so to be; the Company's contractual
rights or other interest in or with respect to tires not owned by the Company;
(4) the last day of the term of any lease or leasehold which may be or become
subject to the Lien of the Mortgage; (5) electric energy, gas, steam, water, ice
and other materials or products generated, manufactured, stored, produced,
purchased or acquired by the Company for sale, distribution or use in the
ordinary course of its business; all timber, minerals, mineral rights and
royalties and all Natural Gas and Oil Production Property, as defined in Section
4 of the Mortgage; and (6) the Company's franchise to be a corporation;
provided, however, that the property and rights expressly excepted from the Lien
and operation of the Mortgage in the above subdivisions (2) and (3) shall (to
the extent permitted by law) cease to be so excepted in the event and as of the
date that the Trustee or a receiver or trustee shall enter upon and take
possession of the Mortgaged and Pledged Property in the manner provided in
Article XIII of the Mortgage by reason of the occurrence of a Default as defined
in Section 65 thereof.
TO HAVE AND TO HOLD all such properties, real, personal and mixed, granted,
bargained, sold, released, conveyed, assigned, transferred, mortgaged, pledged,
set over or confirmed by the Company as aforesaid, or intended so to be, unto
Chemical Bank as Trustee, and its successors and assigns forever;
12
IN TRUST NEVERTHELESS, for the same purposes and upon the same terms, trusts
and conditions and subject to and with the same provisions and covenants as are
set forth in the Mortgage, this Fifty-third Supplemental Indenture being
supplemental to the Mortgage;
AND IT IS HEREBY COVENANTED by the Company that all the terms, conditions,
provisos, covenants and provisions contained in the Mortgage shall affect and
apply to the property hereinbefore described and conveyed, and to the estates,
rights, obligations and duties of the Company and the Trustee under the Mortgage
and the beneficiaries of the trust with respect to said property, and to the
Trustee under the Mortgage and its successors in the trust, in the same manner
and with the same effect as if the said property had been owned by the Company
at the time of the execution of the Mortgage, and had been specifically and at
length described in and conveyed to said Trustee by the Mortgage as a part of
the property therein stated to be conveyed.
ARTICLE II
REGARDING THE RESIGNATION OF THE RESIGNING TRUSTEE AND
APPOINTMENT OF SUCCESSOR TRUSTEE
SECTION 2.01. Morgan Guaranty Trust Company of New York hereby gives written
notice to the Company that it hereby resigns as Corporate Trustee under the
Mortgage, such resignation to take effect as of September 1, 1994.
SECTION 2.02. Pursuant to Section 102 of the Mortgage, and by order of its
Board of Directors, the Company hereby accepts the foregoing resignation and
appoints Chemical Bank as Successor Corporate Trustee under the Mortgage,
effective as of September 1, 1994. By execution hereof Chemical Bank hereby
acknowledges its acceptance of its appointment by the Company as Successor
Corporate Trustee under the Mortgage.
SECTION 2.03. The Resigning Corporate Trustee hereby conveys, assigns and
transfers to the Successor Corporate Trustee, and its successors and assigns,
upon the trusts expressed in the Mortgage (as amended hereby), all rights,
title, powers and trusts of the Resigning Corporate
13
Trustee under and pursuant to the Mortgage and all property and money held by
the Resigning Corporate Trustee under the Mortgage. The Resigning Corporate
Trustee and the Company agree, upon request of the Successor Corporate Trustee,
to execute, acknowledge and deliver such further instruments of conveyance and
further assurances and to do such other things as may reasonably be required for
more fully and certainly vesting in and confirming to the Successor Corporate
Trustee such rights, title, powers and trusts.
ARTICLE III
FIFTY-EIGHTH SERIES OF BONDS
SECTION 3.01. There shall be a series of bonds designated "First Mortgage
Bonds, Series 1994-1" (herein sometimes referred to as the "Fifty-eighth
Series"), each of which shall also bear the descriptive title First Mortgage
Bond, and the form thereof, which shall be established by Resolution of the
Board of Directors of the Company, shall contain suitable provisions with
respect to the matters hereinafter in this Section specified. Bonds of the
Fifty-eighth Series shall mature on the maturity date, and in principal amounts
corresponding to the principal amounts, of first mortgage and collateral trust
bonds designated "Series 1994-1," issued under the Company's Mortgage and Deed
of Trust, dated as of January 9, 1989, as amended and supplemented, to Chemical
Bank, as trustee, on the basis of such bonds of the Fifty-eighth Series. Bonds
of the Fifty-eighth Series shall be issued as fully registered bonds in the
denomination of One Thousand Dollars and, at the option of the Company, in any
multiple or multiples of One Thousand Dollars (the exercise of such option to be
evidenced by the execution and delivery thereof); they shall bear no interest;
and the principal of each such bond shall be payable at the office or agency of
the Company in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for public and private debts. Bonds of the Fifty-eighth Series shall be
dated as in Section 10 of the Mortgage provided.
14
(I) Bonds of the Fifty-eighth Series shall be redeemable either at
the option of the Company or pursuant to the requirements of the Mortgage
(including, among other things, the provisions of Sections 39, 64 or 87 of the
Mortgage or with the Proceeds of Released Property).
(II) At the option of the registered owner, any bonds of the Fifty-
eighth Series, upon surrender thereof for cancellation at the office or agency
of the Company in the Borough of Manhattan, The City of New York, shall be
exchangeable for a like aggregate principal amount of bonds of the same series
of other authorized denominations.
Bonds of the Fifty-eighth Series shall be transferable (subject to the
provisions of Section 12 of the Mortgage and to the limitations set forth in
this Fifty-third Supplemental Indenture), upon the surrender thereof for
cancellation, together with a written instrument of transfer in form approved by
the registrar duly executed by the registered owner or by his duly authorized
attorney, at the office or agency of the Company in the Borough of Manhattan,
The City of New York. Upon any transfer or exchange of bonds of the Fifty-eighth
Series, the Company may make a charge therefor sufficient to reimburse it for
any tax or taxes or other governmental charge, as provided in Section 12 of the
Mortgage, but the Company hereby waives any right to make a charge in addition
thereto for any exchange or transfer of bonds of the Fifty-eighth Series.
The Trustee may conclusively presume that the obligation of the Company to
pay the principal of the bonds of the Fifty-eighth Series as the same shall
become due and payable shall have been fully satisfied and discharged unless and
until it shall have received a written notice from the trustee under the
Company's Mortgage and Deed of Trust, dated as of January 9, 1989, as amended
and supplemented, to Chemical Bank, as trustee, signed by the President, a Vice
President, an Assistant Vice President or a Trust Officer of such trustee,
stating that interest or principal due and payable on any bonds issued under
said Mortgage and Deed of Trust has not been fully paid and specifying the
amount of funds required to make such payment.
Bonds of the Fifty-eighth Series shall be initially issued in the name of
Chemical Bank, as trustee under the Company's Mortgage and Deed of
15
Trust, dated as of January 9, 1989, as amended and supplemented, and shall not
be transferable, except to any successor trustee under said Mortgage and Deed of
Trust.
After the execution and delivery of this Fifty-third Supplemental Indenture
and upon compliance with the applicable provisions of the Mortgage, as
supplemented, it is contemplated that there shall be issued bonds of the
Fifty-eighth Series in an aggregate principal amount not to exceed One Hundred
Twelve Million Five Hundred Thousand Dollars ($112,500,000).
ARTICLE IV
THE COMPANY RESERVES THE RIGHT TO AMEND PROVISIONS
REGARDING PROPERTIES EXCEPTED FROM LIEN OF MORTGAGE
SECTION 4.01. The Company reserves the right, without any consent or other
action by holders of bonds of the Fifty-fourth Series, or any other series of
bonds subsequently created under the Mortgage (including the bonds of the
Fifty-eighth Series), to make such amendments to the Mortgage, as heretofore
amended and supplemented, as shall be necessary in order to amend the first
proviso to the granting clause of the Mortgage, which proviso sets forth the
properties excepted from the Lien of the Mortgage, to add a new exception (7)
which shall read as follows:
"(7) allowances allocated to steam-electric generating plants owned by the
Company or in which the Company has interests, pursuant to Title IV of the
Clean Air Act Amendments of 1990, Pub. L. 101-549, Nov. 15, 1990, 104 Stat.
2399, 42 USC 7651, ET SEQ., as now in effect or as hereafter supplemented or
amended."
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.01. The right, if any, of the Company to assert the defense of
usury against a holder or holders of bonds of the Fifty-eighth Series or any
subsequent series shall be determined only under the laws of the State of New
York.
16
SECTION 5.02. The terms defined in the Mortgage shall, for all purposes of
this Fifty-third Supplemental Indenture, have the meanings specified in the
Mortgage.
SECTION 5.03. The Trustee hereby accepts the trusts declared, provided,
created or supplemented in the Mortgage and herein, and agrees to perform the
same upon the terms and conditions set forth herein and in the Mortgage, and
upon the following terms and conditions:
The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Fifty-third Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made by the Company solely. In general, each and every term and
condition contained in Article XVII of the Mortgage shall apply to and form part
of this Fifty-third Supplemental Indenture with the same force and effect as if
the same were herein set forth in full, with such omissions, variations and
insertions, if any, as may be appropriate to make the same conform to the
provisions of this Fifty-third Supplemental Indenture.
SECTION 5.04. Whenever in this Fifty-third Supplemental Indenture either the
Company or the Trustee is named or referred to, this shall, subject to the
provisions of Articles XVI and XVII of the Mortgage, be deemed to include the
successors and assigns of such party, and all the covenants and agreements in
this Fifty-third Supplemental Indenture contained by or on behalf of the
Company, or by or on behalf of the Trustee, or either of them, shall, subject as
aforesaid, bind and inure to the respective benefits of the respective
successors and assigns of such parties, whether so expressed or not.
SECTION 5.05. Nothing in this Fifty-third Supplemental Indenture, expressed
or implied, is intended, or shall be construed, to confer upon, or to give to,
any person, firm or corporation, other than the parties hereto and the holders
of the bonds and coupons Outstanding under the Mortgage, any right, remedy or
claim under or by reason of this Fifty-third Supplemental Indenture or any
covenant, condition, stipulation, promise or agreement hereof, and all the
covenants, conditions, stipulations, promises and agreements in this Fifty-third
Supplemental Indenture
17
contained by or on behalf of the Company shall be for the sole and exclusive
benefit of the parties hereto, and of the holders of the bonds and coupons
Outstanding under the Mortgage.
SECTION 5.06. This Fifty-third Supplemental Indenture shall be executed in
several counterparts each of which shall be an original and all of which shall
constitute but one and the same instrument.
ARTICLE VI
SPECIFIC DESCRIPTION OF PROPERTY
The following described properties of the Company, owned as of the date
hereof, and used (or held for future development and use) in connection with the
Pacific Power Division of the Company's electric utility systems, or for other
purposes, as hereinafter indicated, respectively:
H--OFFICE BUILDINGS
The following office and service center of the Company in the State of
Washington including the following described real property:
H-48--YAKIMA OFFICE AND SERVICE CENTER
In YAKIMA County, State of WASHINGTON
H-48 ITEM: That part of the East 1/2 of the Southeast 1/4 of Section 17,
Township 13 North, Range 19 East, W.M., lying northerly of the Northerly
right-of-way line of the Burlington Northern, Inc. Railroad (now
W.C.R.C.) right-of-way as conveyed by deed recorded in Volume 83 of
Deeds, page 552;
EXCEPTING THEREFROM the following:
1) That portion thereof conveyed to Union Gap Irrigation District by
deed dated April 6, 1916, and recorded in Volume 165 of Deeds, page 285,
under Auditor's File No. 90399, described as all of the Northeast 1/4 of
the Southeast 1/4 of said Section 17 lying North of a line 25 feet South
of and parallel with the centerline of the Union Gap Ditch;
18
2) That portion thereof lying Westerly of the following described line:
Commencing at a point on the South line of the tract of land conveyed to
Union Gap Irrigation District by deed recorded in Volume 165 of Deeds,
page 285, under Auditor's File No. 90399, which point is 23.8 feet South
and 59 feet North 89 DEG. 55' East of the Northwest corner of said
subdivision; thence North 89 DEG. 55' East along the South line of said
Union Gap Irrigation District property 653.11 feet to the point of
beginning of said described line; thence South 00 DEG. 05' East to the
Northeasterly right-of-way line of said Burlington Northern, Inc.
Railroad right-of-way and the terminus of said described line;
3) That portion thereof lying Easterly of the following described line:
Beginning at the point of intersection of the Northeasterly right-of-way
line of said Burlington Northern, Inc. Railroad right-of-way, with the
West line of the East 30.00 feet of the Southeast 1/4 of said Section
17; thence North 00 DEG. 32' 30" West parallel with the East line of
said Section 1146.28 feet to the P.C. of a curve to the left; thence
along the arc of a curve to the left having a radius of 925.00 feet,
through a central angle of 30 DEG. 00'; thence North 30 DEG. 32' 30"
West to the North line of the Southeast 1/4 of said Section 17 and the
terminus of said described line (Parcel No. 191317-41001/Levy Code 385).
19
IN WITNESS WHEREOF, PACIFICORP has caused its corporate name to be hereunto
affixed, and this instrument to be signed and sealed by one of its Vice
Presidents, and its corporate seal to be attested to by its Secretary or one of
its Assistant Secretaries; and MORGAN GUARANTY TRUST COMPANY OF NEW YORK has
caused its corporate name to be hereunto affixed, and this instrument to be
signed and sealed by one of its Vice Presidents or one of its Assistant Vice
Presidents, and its corporate seal to be attested to by one of its Assistant
Secretaries; and Chemical Bank has caused its corporate name to be hereunto
affixed, and this instrument to be signed and sealed by one of its Vice
Presidents or one of its Assistant Vice Presidents, and its corporate seal to be
attested to by one of its Senior Trust Officers, all as of the day and year
first above written.
[SEAL] PACIFICORP
By RICHARD T. O'BRIEN
-------------------------------
Vice President
Attest:
JOHN M. SCHWEITZER
----------------------------------
Assistant Secretary
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
[SEAL] as Resigning Corporate Trustee
By PETER VITELLIO
-------------------------------
Vice President
Attest:
TAMARA FELICETTI
----------------------------------
Assistant Secretary
20
CHEMICAL BANK
as Successor Corporate Trustee
By F.J. GRIPPO
-------------------------------
Attest: Vice President
M. KATZ
----------------------------------
Senior Trust Officer
21
STATE OF OREGON )
COUNTY OF MULTNOMAH ) ss.:
On this 8th day of September, 1994, before me, SHERYL LEE STRATTON, a Notary
Public in and for the State of Oregon, personally appeared RICHARD T. O'BRIEN
and JOHN M. SCHWEITZER, known to me to be a Vice President and an Assistant
Secretary, respectively, of PACIFICORP, an Oregon corporation, who being duly
sworn, stated that the seal affixed to the foregoing instrument is the corporate
seal of said corporation and acknowledged this instrument to be the free,
voluntary and in all respects duly and properly authorized act and deed of said
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day
and year first above written.
SHERYL LEE STRATTON
----------------------------------
My commission expires: May 25, 1996
[SEAL] Residing at: Portland, Oregon
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
On this 1st day of September, 1994, before me, JOHN MIECHOWSKI, a Notary
Public in and for the State of New York, personally appeared PETER VITELLIO and
TAMARA FELICETTI, known to me to be a Vice President and Assistant Secretary,
respectively, of MORGAN GUARANTY TRUST COMPANY OF NEW YORK, a New York
corporation, who being duly sworn, stated that the seal affixed to the foregoing
instrument is the corporate seal of said corporation and acknowledged this
instrument to be the free, voluntary and in all respects duly and properly
authorized act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day
and year first above written.
JOHN MIECHKOWSKI
----------------------------------
Notary Public, State of New York
No. 30-4893319
Qualified in Nassau County
[SEAL] Commission expires: May 18, 1995
22
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
On this 2nd day of September, 1994, before me, EMILY FAYAN, a Notary Public
in and for the State of New York, personally appeared F.J. GRIPPO and M. KATZ,
known to me to be a Vice President and a Senior Trust Officer, respectively, of
CHEMICAL BANK, a New York corporation, who being duly sworn, stated that the
seal affixed to the foregoing instrument is the corporate seal of said
corporation and acknowledged this instrument to be the free, voluntary and in
all respects duly and properly authorized act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day
and year first above written.
EMILY FAYAN
----------------------------------
Notary Public, State of New York
No. 24-4737006
Qualified in Kings County
Commission expires: December 31,
[SEAL] 1995