EXHIBIT (4)b
[CONFORMED COPY]
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PACIFICORP
(AN OREGON CORPORATION)
TO
CHEMICAL BANK
(A NEW YORK CORPORATION)
AS TRUSTEE UNDER PACIFICORP'S
MORTGAGE AND DEED OF TRUST,
DATED AS OF JANUARY 9, 1989
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ELEVENTH SUPPLEMENTAL INDENTURE
DATED AS OF DECEMBER 1, 1995
SUPPLEMENTAL TO PACIFICORP'S MORTGAGE AND DEED OF TRUST
DATED AS OF JANUARY 9, 1989
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THIS INSTRUMENT GRANTS A SECURITY INTEREST BY A TRANSMITTING UTILITY
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS
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ELEVENTH SUPPLEMENTAL INDENTURE
THIS INDENTURE, dated as of the 1st day of December, 1995, made
and entered into by and between PACIFICORP, a corporation of the State of
Oregon, whose address is 700 NE Multnomah, Portland, Oregon 97232 (hereinafter
sometimes called the "Company"), and CHEMICAL BANK, a New York corporation whose
address is 450 West 33rd Street, New York, New York 10001 (the "Trustee"), as
Trustee under the Mortgage and Deed of Trust, dated as of January 9, 1989, as
heretofore amended and supplemented (hereinafter called the "Mortgage"), is
executed and delivered by PacifiCorp in accordance with the provisions of the
Mortgage, this indenture (hereinafter called the "Eleventh Supplemental
Indenture") being supplemental thereto.
WHEREAS, the Mortgage was or is to be recorded in the official
records of the States of Arizona, California, Colorado, Idaho, Montana, New
Mexico, Oregon, Utah, Washington and Wyoming and various counties within such
states, which counties include or will include all counties in which this
Eleventh Supplemental Indenture is to be recorded; and
WHEREAS, by the Mortgage the Company covenanted that it would
execute and deliver such supplemental indenture or indentures and such further
instruments and do such further acts 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
WHEREAS, in addition to the property described in the Mortgage,
the Company has acquired certain other property, rights and interests in
property; and
WHEREAS, the Company has executed, delivered, recorded and filed
Supplemental Indentures as follows:
Dated as of
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First March 31, 1989
Second December 29, 1989
Third March 31, 1991
Fourth December 31, 1991
Fifth March 15, 1992
Sixth July 31, 1992
Seventh March 15, 1993
Eighth November 1, 1993
Ninth June 1, 1994
Tenth August 1, 1994;
and
WHEREAS, the Company has heretofore issued, in accordance with
the provisions of the Mortgage, bonds entitled and designated First Mortgage and
Collateral Trust Bonds, of the series and in the principal amounts as follows:
Aggregate Aggregate
Principal Amount Principal Amount
Series Due Date Issued Outstanding
------ -------- ---------------- ----------------
First --10.45% 1/9/90 $ 500,000 0
Second --Medium-Term various 250,000,000 $240,000,000
Notes, Series A
Third --Medium-Term various 200,000,000 160,000,000
Notes, Series B
Fourth --Medium-Term various 300,000,000 281,874,714
Notes, Series C
Fifth --Medium-Term various 250,000,000 250,000,000
Notes, Series D
Sixth --C-U various 250,432,000 185,288,000
Seventh --Medium-Term various 500,000,000 500,000,000
Notes, Series E
Eighth --6 3/4% 4/1/2005 150,000,000 150,000,000
Ninth --Medium-Term various 500,000,000 500,000,000
Notes, Series F
Tenth --E-L various 71,200,000 71,200,000
Eleventh --Medium-Term various 100,000,000 100,000,000
Notes, Series G
Twelfth --1994-1 various 216,470,000 216,470,000;
and
WHEREAS, Section 2.03 of the Mortgage provides that the form or
forms, terms and conditions of and other matters not inconsistent with the
provisions of the Mortgage, in connection with each series of bonds (other than
the First Series) issued thereunder, shall be established in or pursuant to one
or more Resolutions and/or shall be established in one or more indentures
supplemental to the Mortgage, prior to the initial issuance of bonds of such
series; and
WHEREAS, Section 22.04 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,
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privilege or right is in any way restricted or is unrestricted, may 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, restrictions or provisions
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 in or pursuant to Resolution in
accordance with Section 2.03 of the Mortgage) establish the forms, terms and
provisions of any series of bonds other than said First Series, by an instrument
in writing executed by the Company; and
WHEREAS, the Company now desires to create three new series of
bonds and (pursuant to the provisions of Section 22.04 of the Mortgage) to add
to its covenants and agreements contained in the Mortgage certain other
covenants and agreements to be observed by it; and
WHEREAS, the execution and delivery by the Company of this
Eleventh Supplemental Indenture, and the terms of the bonds of the Thirteenth,
Fourteenth and Fifteenth Series herein referred to, have been duly authorized by
the Board of Directors in or pursuant to appropriate Resolutions;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
ARTICLE I
GRANTING CLAUSE
That PACIFICORP, an Oregon corporation, in consideration of the
premises and of good and valuable consideration to it duly paid by the Trustee
at or before the ensealing and delivery of these presents, the receipt and
sufficiency whereof is hereby acknowledged, and in order 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 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 mortgages, pledges and grants a security interest in (subject,
however, to Excepted Encumbrances as defined in Section 1.06 of the Mortgage),
unto Chemical Bank, as Trustee, and to its successor or successors in said
trust, and to said Trustee and its successors and assigns forever, all
properties of the Company real, personal and mixed, owned by the Company as of
the date of the Mortgage and acquired by the Company after the date of the
Mortgage, subject to the provisions of Section 18.03 of the Mortgage, of any
kind or nature (except any herein or in the Mortgage expressly excepted), now
owned or,
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subject to the provisions of Section 18.03 of the Mortgage, hereafter acquired
by the Company (by purchase, consolidation, merger, donation, construction,
erection or in any other way) and wheresoever situated, including (without
limitation) all real estate, lands, easements, servitudes, licenses, permits,
franchises, privileges, rights of way and other rights in or relating to real
estate or the occupancy of the same; all power sites, flowage rights, water
rights, water locations, water appropriations, ditches, flumes, reservoirs,
reservoir sites, canals, raceways, waterways, 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
and other forms of energy (whether now known or hereafter developed) by steam,
water, sunlight, chemical processes and/or (without limitation) all other
sources of power (whether now known or hereafter developed); all power houses,
gas plants, street lighting systems, standards and other equipment incidental
thereto; all telephone, radio, television and other communications, image and
data transmission systems, air-conditioning systems and equipment incidental
thereto, water wheels, water works, water systems, steam 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, turbines,
electric, gas and other machines, prime movers, regulators, meters,
transformers, generators (including, but not limited to, engine-driven
generators and turbogenerator units), motors, electrical, gas and mechanical
appliances, conduits, cables, water, steam, gas or other pipes, gas mains and
pipes, service pipes, fittings, valves and connections, pole and transmission
lines, towers, overhead conductors and devices, underground conduits,
underground conductors and devices, wires, cables, tools, implements, apparatus,
storage battery equipment and all other fixtures and personalty; all municipal
and other franchises, consents or permits; all lines for the transmission and
distribution of electric current and other forms of energy, gas, steam, water or
communications, images and data for any purpose including towers, poles, wires,
cables, pipes, conduits, ducts and all apparatus for use in connection therewith
and (except as herein or in the Mortgage expressly excepted) all the right,
title and interest of the Company in and to all other property of any kind or
nature appertaining to and/or used and/or occupied and/or enjoyed in connection
with any property hereinbefore described;
TOGETHER WITH all and singular the tenements, hereditaments,
prescriptions, servitudes and appurtenances belonging or in anywise appertaining
to the aforesaid property or any part thereof, with the reversion and
reversions, remainder and remainders and (subject to the provisions of Section
13.01 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 may
hereafter acquire in and to the aforesaid property and franchises and every part
and parcel thereof.
IT IS HEREBY AGREED by the Company that, subject to the
provisions of Section 18.03 of the Mortgage, all the property, rights and
franchises acquired by the
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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 mortgaged and pledged hereby 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 mortgaged hereby or thereby.
PROVIDED THAT the following are not and are not intended to be
now or hereafter mortgaged or pledged hereunder, nor is a security interest
therein hereby granted or intended to be granted, and the same are hereby
expressly excepted from the Lien and operation of the Mortgage, namely:
(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 or for the purpose of repairing or
replacing (in whole or part) any rolling stock, buses, motor coaches,
automobiles or other vehicles or aircraft or boats, ships or other vessels, and
any fuel, oil and similar materials and supplies consumable in the operation of
any of the properties of the Company; rolling stock, buses, motor coaches,
automobiles and other vehicles and all aircraft; boats, ships and other vessels;
all crops (both growing and harvested), timber (both growing and harvested),
minerals (both in place and severed), and mineral rights and royalties;
(3) bills, notes and other instruments and accounts receivable, judgments,
demands, general intangibles and choses in action, and all contracts, leases and
operating agreements not specifically pledged under the Mortgage or covenanted
so to be; (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, water,
steam, ice and other materials, forms of energy or products generated,
manufactured, produced or purchased by the Company for sale, distribution or use
in the ordinary course of its business; (6) any natural gas wells or natural gas
leases or natural gas transportation lines or other works or property used
primarily and principally in the production of natural gas or its
transportation, primarily for the purpose of sale to natural gas customers or to
a natural gas distribution or pipeline company, up to the point of connection
with any distribution system; (7) the Company's franchise to be a corporation;
(8) any interest (as lessee, owner or otherwise) in the Wyodak Facility,
including, without limitation, any equipment, parts, improvements,
substitutions, replacements or other property relating thereto; (9) all
properties that PacifiCorp, a Maine corporation, and/or Utah Power & Light
Company, a Utah corporation, had contracted to dispose of and that had been
released from the liens of the Pacific Mortgage and the Utah Mortgage,
respectively, prior to January 9, 1989, but title to which properties had not
passed to the grantee(s) thereof as of said date; and (10) any property
heretofore released pursuant to any provision of the Mortgage and not heretofore
disposed of by the Company; 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 for the
Trustee shall enter upon and take possession of the Mortgaged and
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Pledged Property in the manner provided in Article XV of the Mortgage by reason
of the occurrence of a Default;
AND PROVIDED FURTHER, that as to any property of the Company
that, pursuant to the after-acquired property provisions thereof, is now or
hereafter becomes subject to the lien of a mortgage, deed of trust or similar
indenture that is now or may in accordance with the Mortgage hereafter become
designated as a Class "A" Mortgage, the Lien hereof shall at all times be junior
and subordinate to the lien of such Class "A" Mortgage;
TO HAVE AND TO HOLD all such properties, real, personal and
mixed, mortgaged and pledged, or in which a security interest has been granted
by the Company as aforesaid, or intended so to be (subject, however, to Excepted
Encumbrances as defined in Section 1.06 of the Mortgage), unto Chemical Bank, as
Trustee, and its successors and assigns forever;
IN TRUST NEVERTHELESS, for the same purposes and upon the same
terms, trusts and conditions and subject to and with the same provisos and
covenants as are set forth in the Mortgage, this Eleventh 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 and the
beneficiaries of the trust with respect to said property, and to the Trustee and
its successor or 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.
The Company further covenants and agrees to and with the Trustee
and its successor or successors in such trust under the Mortgage, as follows:
ARTICLE II
THIRTEENTH SERIES OF BONDS
SECTION 2.01. There shall be a series of bonds designated "Adjustable
Rate Replacement Series" (herein sometimes referred to as the Thirteenth
Series), each of which shall also bear the descriptive title "First Mortgage and
Collateral Trust Bond," and the form thereof, which shall be in substantially
the form of attached Exhibit A, shall contain suitable provisions with respect
to the matters hereinafter in this Section specified.
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(I) Bonds of the Thirteenth Series shall mature on November 1, 2002,
and shall be issued as fully registered bonds in the denomination of One
Thousand Dollars and, at the option of the Company, of any multiple or multiples
of One Thousand Dollars (the exercise of such option to be evidenced by the
execution and delivery thereof).
(II) Bonds of the Thirteenth Series shall bear interest at the
variable rates specified in the Bonds of the Thirteenth Series, payable semi-
annually on May 1 and November 1, of each year, commencing May 1, 1996, and have
such other terms and provisions as set forth in the form attached hereto. Bonds
of the Thirteenth Series shall be dated and shall accrue interest from November
1, 1995.
(III) The principal of and interest on each bond of the Thirteenth
Series 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. The person in whose name any bond of the Thirteenth Series is registered
at the close of business on any record date (as hereinafter defined) for the
Thirteenth Series with respect to any interest payment date shall be entitled to
receive the interest payable on such interest payment date (except that in case
of any redemption of bonds as provided for herein on a date subsequent to the
record date for the Thirteenth Series and prior to such interest payment date,
interest on such redeemed bonds shall be payable only to the date fixed for
redemption thereof and only against surrender of such bonds for redemption in
accordance with the notice of such redemption) notwithstanding the cancellation
of such bond upon any transfer or exchange thereof subsequent to the record date
for the Thirteenth Series and prior to such interest payment date, except if,
and to the extent that, the Company shall default in the payment of the interest
due on such interest payment date, in which case such defaulted interest shall
be paid to the persons in whose names outstanding bonds of the Thirteenth Series
are registered on the day immediately preceding the date of payment of such
defaulted interest. Any bond of the Thirteenth Series issued upon any transfer
or exchange subsequent to the record date for the Thirteenth Series for any
interest payment date and prior to such interest payment date shall bear
interest from such interest payment date. The term "record date for the
Thirteenth Series" as used with respect to any interest payment date shall mean
the fifteenth day of the calendar month next preceding such interest payment
date.
(IV) Each bond of the Thirteenth Series may be redeemable at any time
on or after November 1, 1996 and prior to maturity at the option of the Company,
at the following redemption prices:
If redeemed during the twelve months ending on the thirty-first
day of October,
1997 ............. 104.41% 2000 ............. 101.76%
1998 ............. 103.53% 2001 ............. 100.88%
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1999 ............. 102.64% 2002 ............. 100.00%
(V) At the option of the registered owner, any bonds of the
Thirteenth 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.
(VI) Bonds of the Thirteenth Series shall be transferable, subject to
any restrictions thereon set forth in any such bond of the Thirteenth Series,
upon the surrender therefor 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 Thirteenth Series, the Company may make a charge
therefor sufficient to reimburse it for any tax or taxes or other government
charge, as provided in Section 2.08 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 Thirteenth Series.
(VII) After the execution and delivery of this Eleventh Supplemental
Indenture and upon compliance with the applicable provisions of the Mortgage and
this Eleventh Supplemental Indenture, it is contemplated that there shall be an
issue of bonds of the Thirteenth Series in an aggregate principal amount not to
exceed Thirteen Million Two Hundred Thirty-Four Thousand Dollars ($13,234,000).
Bonds of the Thirteenth Series shall be issued pro rata on the basis of
Class "A" Bonds of the Fifty-ninth Series, designated "Adjustable Rate
Replacement Series," issued under each of the Utah Mortgage and the Pacific
Mortgage and delivered to the Trustee. The claim of the registered owner of any
such Class "A" Bond shall be limited to the principal amount of the bonds of the
Thirteenth Series issued and Outstanding on the basis of such Class "A" Bond.
(IX) Upon receipt by the Trustee from time to time of a written
request or requests (stating that the Trustee holds an aggregate principal
amount of Class "A" Bonds of the Fifty-ninth Series, designated "Adjustable Rate
Replacement Series Bonds," issued under the Utah Mortgage and the Pacific
Mortgage which exceeds the principal amount of bonds of the Thirteenth Series
then Outstanding and stating the amount of such excess and the principal amount
of any such Class "A" Bonds to be canceled) executed by an Authorized Executive
Officer of the Company, the Trustee shall return to the corporate trustee under
the Utah Mortgage or corporate trustee under the Pacific Mortgage, as the case
may be, for cancellation, a principal amount of Class "A" Bonds issued in the
name of and held by the Trustee with respect to bonds of the Thirteenth Series
not to exceed the excess of the principal amount of such Class "A" Bonds then so
held over the principal amount of bonds of the Thirteenth Series then
Outstanding. Upon cancellation of any such principal amount of Class "A" Bonds,
the Trustee shall receive from the corporate trustee
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under the Utah Mortgage or corporate trustee under the Pacific Mortgage, as the
case may be, a Class "A" Bond in the principal amount not so canceled.
ARTICLE III
FOURTEENTH SERIES OF BONDS
SECTION 3.01. The terms defined in this Article III shall, for purposes
of this Article III, have the meaning specified, unless the context otherwise
requires:
The term "Loan Agreement" shall mean the Loan Agreement dated as
of July 22, 1987, entered into among the Company, the Agent, and the Lenders (as
defined below), as such Loan Agreement has been amended by that certain First
Amendment to Loan Agreement, dated as of December 1, 1995.
The term "Lenders" shall mean The Long-Term Credit Bank of
Japan, Limited, and The Dai-Ichi Mutual Life Insurance Company, and their
successors and assigns.
The term "Advance" shall mean the amounts borrowed under the
Loan Agreement.
The term "Agent" shall mean The Long-Term Credit Bank of Japan,
Limited, and any duly appointed successor, in its capacity as agent for the
Lenders for the purpose of holding the Bonds of the Fourteenth Series (as
defined below) as security for the Advance, interest thereon and other amounts
payable under the terms of the Loan Agreement and the Security Agreement (as
defined in the Loan Agreement) between the Company and the Agent relating
thereto.
SECTION 3.02. There shall be a series of bonds designated "9 3/8%
Replacement Series Due 1997" (herein sometimes referred to as the Fourteenth
Series), each of which shall also bear the descriptive title "First Mortgage and
Collateral Trust Bond," and which shall be in substantially the form of attached
Exhibit B and shall contain suitable provisions with respect to the matters
hereinafter in this Section specified.
(I) Bonds of the Fourteenth Series shall mature on July 22, 1997,
shall be issued as fully registered bonds in the denomination of Five Thousand
Dollars and, at the option of the Company, of any multiple or multiples of Five
Thousand Dollars (the exercise of such option to be evidenced by the execution
and delivery thereof).
(II) Bonds of the Fourteenth Series shall bear interest at the rate
of nine and three-eighths per centum (9 3/8%) per annum, payable semi annually
on January 22 and July 22 of each year, commencing January 22, 1996, and have
such other terms and
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provisions as set forth in the form attached hereto. Bonds of the Fourteenth
Series shall be dated the date of authentication and shall accrue interest from
July 22, 1995.
(III) The principal of and interest on each bond of the Fourteenth
Series 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.
(IV) Bonds of the Fourteenth Series shall be redeemable in whole at
any time upon receipt by the Trustee of a written demand (hereinafter referred
to as the "Redemption Demand") from the Agent, which Redemption Demand shall be
received not less than 60 days prior to the redemption date stated therein. The
Redemption Demand shall be signed by a General Manager and Agent, Vice President
and Deputy General Manager, or Assistant Vice President and Manager of the Agent
and shall state (1) the principal amount of bonds of the Fourteenth Series to be
redeemed (which shall be equal to the aggregate principal amount of the then
outstanding Bonds of the Fourteenth Series), (2) the redemption date
(hereinafter referred to as the "redemption date"), (3) that the redemption
required by the Redemption Demand is the result of the Advance then outstanding
under the Loan Agreement having been declared immediately due and payable
pursuant to the provisions of the Loan agreement (hereinafter referred to as an
"Acceleration"), (4) that the Trustee shall call for redemption on the
redemption date the stated principal amount of bonds of the Fourteenth Series,
and (5) that the Agent, as holder of all the bonds of the Fourteenth Series then
outstanding, waives any notice of such redemption required to be given under the
Mortgage. The redemption date stated in the Redemption Demand shall not be less
than 60 days after the receipt thereof by the Trustee, provided that the
provisions of this Article III shall not be construed as limiting any rights of
the Agent, as holder of the bonds of the Fourteenth Series pursuant to Article
XV of the Mortgage and, provided, further, that if after receipt of the
Redemption Demand and prior to the redemption date the Trustee shall have been
advised in writing by the Agent, signed in the same manner as the Redemption
Demand, that the Acceleration has been rescinded, such Redemption Demand shall
thereupon without further act of the Trustee be rescinded and become null and
void for all purposes hereunder and no redemption of the bonds of the Fourteenth
Series and no payment in respect thereof shall be effected or required.
Promptly after receiving the Redemption Demand the Trustee shall mail a copy
thereof to the Company; provided, however, that failure to mail a copy of the
Redemption Demand shall not affect the validity of the proceedings for the
redemption of the bonds of the Fourteenth Series. The Trustee may conclusively
rely on the statements and instructions contained the Redemption Demand.
Redemption of bonds of the Fourteenth Series shall be at the principal amount
thereof, together with accrued interest to the redemption date, and such amount
shall become and be due and payable on the redemption date. The Company hereby
covenants that, if a Redemption Demand shall be delivered to the Trustee, the
Company, subject to Paragraph (VI) of this Section 3.02, will deposit, on or
before the business day preceding the redemption date, with the Trustee, an
amount in cash sufficient to redeem the bonds of
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the Fourteenth Series so called for redemption. To the extent the method of
redemption provided for in this Paragraph (IV) conflicts with any provisions of
Article XII of the Mortgage, such provisions of Article XII shall not be
applicable.
(V) At any time and from time to time upon receipt by the Trustee of
bonds of the Fourteenth Series, together with a written order from the Agent
signed in the same manner as a Redemption Demand (i) specifying the principal
amount of bonds of the Fourteenth Series to be canceled and the reason therefor
and (ii) directing the Trustee to cancel the bonds so delivered or to make such
endorsements thereon as shall be appropriate pursuant to Section 12.04 of the
Mortgage to evidence the cancellation of the principal amount of bonds of the
Fourteenth Series stated in clause (i) to be canceled, the Trustee shall cancel
such stated principal amount of bonds of the Fourteenth Series. The Trustee may
conclusively rely on the statements and instructions contained in such order.
(VI) The obligation of the Company to make payments with respect to
the principal of and interest on bonds of the Fourteenth Series shall be fully
or partially, as the case may be, satisfied and discharged to the extent that,
at the time that any such payment shall be due, the then due principal of and
interest on the Advance shall have been fully or partially paid. Satisfaction
of any obligation to the extent that payment is made with respect to the Advance
means that if any payment is made on the principal of or interest on the
Advance, a corresponding payment obligation with respect to the principal of or
interest on the Bonds shall be deemed discharged in the same proportion as the
payment with respect to the Advance discharges the outstanding obligation with
respect to the Advance. The Trustee may conclusively presume that the
obligation of the Company to make payments with respect to the principal of and
interest on bonds of the Fourteenth Series shall have been fully satisfied and
discharged unless and until the Trustee shall have received a written notice
from the Agent, signed by a General Manager and Agent, Vice President and Deputy
General Manager or Assistant Vice President and Manager, stating (i) that timely
payment of the principal of or interest on the Advance has not been made and
(ii) the amount of funds required to make such payment of principal or interest
or both, as the case may be. The Trustee may conclusively rely on the
statements contained in the notice described in the preceding sentence.
(VII) Bonds of the Fourteenth Series shall only be transferable
(subject to the provisions of Section 2.08 of the Mortgage), upon the surrender
thereof, for cancellation, together with a written instrument of transfer in
form approved by the Company 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, to a successor to the Agent pursuant to the
Loan Agreement, and such bonds of the Fourteenth Series will have the following
legend imprinted thereon:
"This Bond has not been registered under the Securities
Act of 1933, as amended, and may not be offered or sold in
contravention of said Act and
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is not transferable except to a successor Agent under the Loan
Agreement, dated as of July 22, 1987 among PacifiCorp, The Long-Term
Credit Bank of Japan, Limited, as agent, and the financial institutions
named therein, as amended."
(VIII) Upon any transfer of bonds of the Fourteenth 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 2.08 of the Mortgage, but the
Company hereby waives any right to make a charge in addition thereto for any
transfer of bonds of the Fourteenth Series.
After the execution and delivery of this Eleventh Supplemental Indenture
and upon compliance with the applicable provisions of the Mortgage, as
supplemented, it is contemplated that there shall be an issue of bonds of the
Fourteenth Series for the aggregate principal amount of Fifty Million United
States Dollars ($50,000,000).
(IX) Upon receipt by the Trustee from time to time of a written
request or requests (stating that the Trustee holds an aggregate principal
amount of Class "A" Bonds of the Sixtieth Series, designated "First Mortgage
Bond 9 3/8% Replacement Series Due 1997," issued under the Utah Mortgage and the
Pacific Mortgage, which exceeds the principal amount of bonds of the Fourteenth
Series then Outstanding and stating the amount of such excess and the principal
amount of any such Class "A" Bonds to be canceled) executed by an Authorized
Executive Officer of the Company, the Trustee shall return to the corporate
trustee under the Utah Mortgage or corporate trustee under the Pacific Mortgage,
as the case may be, for cancellation, a principal amount of Class "A" Bonds
issued in the name of and held by the Trustee with respect to bonds of the
Fourteenth Series not to exceed the excess of the principal amount of such
Class "A" Bonds then so held over the principal amount of bonds of the
Fourteenth Series then Outstanding. Upon cancellation of any such principal
amount of Class "A" Bonds, the Trustee shall receive from the corporate trustee
under the Utah Mortgage or corporate trustee under the Pacific Mortgage, as the
case may be, a Class "A" Bond in the principal amount not so canceled.
ARTICLE IV
FIFTEENTH SERIES OF BONDS
SECTION 4.01. There shall be a series of bonds designated "Bond Credit
Series Bonds" (herein sometimes referred to as the Fifteenth Series), each of
which shall also bear the descriptive title "First Mortgage and Collateral Trust
Bond," and the form thereof, which shall be established by or pursuant to a
Resolution, shall contain suitable provisions with respect to the matters
hereinafter in this Section specified.
12
(I) Bonds of the Fifteenth Series shall mature on such date or dates
not more than 30 years from the date of issue as shall be set forth in or
determined in accordance with a Resolution filed with the Trustee and, unless
otherwise established by or pursuant to a Resolution, shall be issued as fully
registered bonds in the denomination of Five Thousand Dollars and, at the option
of the Company, of any multiple or multiples of Five Thousand Dollars (the
exercise of such option to be evidenced by the execution and delivery thereof).
(II) Bonds of the Fifteenth Series shall bear interest at such rate
or rates (which may either be fixed or variable), payable on such dates, and
have such other terms and provisions not inconsistent with the Mortgage as may
be set forth in or determined in accordance with a Resolution filed with the
Trustee. Bonds of the Fifteenth Series shall be dated and shall accrue interest
as provided in Section 2.06 of the Mortgage.
Interest payable on any bond of the Fifteenth Series and punctually paid
or duly provided for on any interest payment date for such bond will be paid to
the person in whose name the bond is registered at the close of business on the
Record Date (as hereinafter specified) for such bond next preceding such
interest payment date; provided, however, that the first payment of interest on
any bond with an Issue Date (as hereinafter specified) between a Record Date and
an interest payment date will be made on the interest payment date following the
next succeeding Record Date to the registered owner on such next Record Date
(unless the Company elects, in its sole discretion, to pay such interest on the
first interest payment date after the Issue Date, in which case such interest
will be paid to the person in whose name the bond is originally issued),
provided, further, that interest payable at maturity or upon earlier redemption
will be payable to the person to whom principal shall be payable. The "Record
Date" with respect to bonds of the Fifteenth Series of a designated interest
rate and maturity shall be determined by or in accordance with a Resolution
filed with the Trustee. "Issue Date" with respect to bonds of the Fifteenth
Series of a designated interest rate and maturity shall mean the date of first
authentication of bonds of such designated interest rate and maturity.
Any interest on any bond of the Fifteenth Series which is
payable but is not punctually paid or duly provided for, on any interest payment
date for such bond (herein called "Defaulted Interest"), shall forthwith cease
to be payable to the registered owner on the relevant Record Date for the
payment of such interest solely by virtue of such owner having been such owner;
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in subsection (i) or (ii) below:
(i) The Company may elect to make payment of any Defaulted
Interest on the bonds of the Fifteenth Series to the persons in whose
names such bonds are registered at the close of business on a Special
Record Date (as hereinafter defined) for the payment of such Defaulted
Interest, which shall be fixed in the following manner: The Company
shall, at least 30 days prior to the proposed date of payment, notify
the Trustee in writing (signed by an Authorized Financial Officer of
13
the Company) of the amount of Defaulted Interest proposed to be paid on
each bond of the Fifteenth Series and the date of the proposed payment
(which date shall be such as will enable the Trustee to comply with the
next sentence hereof), and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit on or prior to
the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the persons entitled to such Defaulted
Interest as in this subsection provided and not to be deemed part of the
Mortgaged and Pledged Property. Thereupon, the Trustee shall fix a
record date (herein referred to as a "Special Record Date") for the
payment of such Defaulted Interest which date shall be not more than 15
nor less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date, and in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage
prepaid, to each registered owner of a bond of the Fifteenth Series at
his address as it appears in the bond register not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the
persons in whose names the bonds of the Fifteenth Series are registered
at the close of business on such Special Record Date and shall no longer
be payable pursuant to the following subsection (ii).
(ii) The Company may make payment of any Defaulted Interest on
the bonds of the Fifteenth Series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such bonds may be listed and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this subsection, such payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each bond of the
Fifteenth Series delivered under the Mortgage upon transfer of or in exchange
for or in lieu of any other bond shall carry all the rights to interest accrued
and unpaid, and to accrue, which were carried by such other bond and each such
bond shall bear interest from such date, that neither gain nor loss in interest
shall result from such transfer, exchange or substitution.
(III) The principal of and interest on each bond of the Fifteenth
Series 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 or in such other currency or currency unit as shall be determined by or in
accordance with a Resolution filed with the Trustee.
14
(IV) Each bond of the Fifteenth Series may be redeemable prior to
maturity at the option of the Company, as determined by or in accordance with a
Resolution filed with the Trustee.
(V) Each bond of the Fifteenth Series may be subject to the
obligation of the Company to redeem such bond, as determined by or in accordance
with a Resolution filed with the Trustee.
(VI) Each bond of the Fifteenth Series may have such other terms as
are not inconsistent with Section 2.03 of the Mortgage, including, without
limitation, terms and conditions regarding interest rates and the payment
thereof, place or places for payment, exchange privileges, rights with respect
to redemption, prepayment or purchase, and default provisions, and as may be
determined by or in accordance with a Resolution filed with the Trustee.
(VII) At the option of the registered owner, any bonds of the
Fifteenth 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.
(VIII) Bonds of the Fifteenth Series shall be transferable, subject to
any restrictions thereon set forth in any such bond of the Fifteenth Series,
upon the surrender therefor for cancellation, together with a written instrument
of transfer in form approved by the registrar duly executed by the registered
owner or by his, her or its 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 Fifteenth Series, the Company may make a
charge therefor sufficient to reimburse it for any tax or taxes or other
government charge, as provided in Section 2.08 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 Fifteenth Series.
(IX) After the execution and delivery of this Eleventh Supplemental
Indenture and upon compliance with the applicable provisions of the Mortgage and
this Eleventh Supplemental Indenture, it is contemplated that there shall be an
issue of bonds of the Fifteenth Series in an aggregate principal amount not to
exceed Four Hundred Ninety-Eight Million Five Hundred Eighty-Nine Thousand Seven
Hundred Fifty-Three Dollars ($498,589,753). Bonds of the Fifteenth Series shall
be issued on the basis of Class "A" Bonds of the Sixty-first Series, designated
"Bond Credit Series Bonds," issued under each of the Utah Mortgage and the
Pacific Mortgage and delivered to the Trustee. The claim of the registered
owner of any such Class "A" Bond shall be limited to the principal amount of the
bonds of the Fifteenth Series issued and Outstanding on the basis of such
Class "A" Bond.
15
(X) Upon receipt by the Trustee from time to time of a written
request or requests (stating that the Trustee holds an aggregate principal
amount of Class "A" Bonds of the Sixty-first, designated "Bond Credit Series
Bonds," issued under the Utah Mortgage and the Pacific Mortgage which exceeds
the principal amount of bonds of the Fifteenth Series then Outstanding and
stating the amount of such excess and the principal amount of any such Class "A"
Bonds to be canceled) executed by an Authorized Executive Officer of the
Company, the Trustee shall return to the corporate trustee under the Utah
Mortgage or corporate trustee under the Pacific Mortgage, as the case may be,
for cancellation, a principal amount of Class "A" Bonds issued in the name of
and held by the Trustee with respect to bonds of the Fifteenth Series not to
exceed the excess of the principal amount of such Class "A" Bonds then so held
over the principal amount of bonds of the Fifteenth Series then Outstanding.
Upon cancellation of any such principal amount of Class "A" Bonds, the Trustee
shall receive from the corporate trustee under the Utah Mortgage or corporate
trustee under the Pacific Mortgage, as the case may be, a Class "A" Bond in the
principal amount not so canceled.
ARTICLE V
THE COMPANY RESERVES THE RIGHT TO AMEND PROVISIONS REGARDING
PROPERTIES EXCEPTED FROM LIEN OF MORTGAGE
SECTION 5.01. The Company reserves the right, without any consent or
other action by holders of bonds of the Eighth Series, or any other series of
bonds subsequently created under the Mortgage (including the bonds of the
Thirteenth Series, the Fourteenth Series and the Fifteenth 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 (10) which shall read as follows:
"(10) 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 VI
MISCELLANEOUS PROVISIONS
SECTION 6.01. The right, if any, of the Company to assert the defense
of usury against a holder or holders of bonds of the Thirteenth Series, the
16
Fourteenth Series, the Fifteenth Series or any subsequent series shall be
determined only under the laws of the State of New York.
SECTION 6.02. The terms defined in the Mortgage shall, for all purposes
of this Eleventh Supplemental Indenture, have the meanings specified in the
Mortgage.
SECTION 6.03. The Trustee hereby accepts the trusts hereby declared,
provided, created or supplemented, and agrees to perform the same upon the terms
and conditions herein and in the Mortgage, as hereby supplemented, set forth,
including the following:
The Trustee shall not be responsible in any manner whatsoever
for or in respect of the validity or sufficiency of this Eleventh Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made by the Company solely. Each and every term and condition
contained in Article XIX of the Mortgage shall apply to and form part of this
Eleventh 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
Eleventh Supplemental Indenture.
SECTION 6.04. Whenever in this Eleventh Supplemental Indenture either
of the Company or the Trustee is named or referred to, this shall, subject to
the provisions of Articles XVIII and XIX of the Mortgage, be deemed to include
the successors and assigns of such party, and all the covenants and agreements
in this Eleventh Supplemental Indenture contained by or on behalf of the
Company, or by or on behalf of the Trustee, 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 6.05. Nothing in this Eleventh 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 Eleventh Supplemental Indenture or
any covenant, condition, stipulation, promise or agreement hereof, and all the
covenants, conditions, stipulations, promises and agreements in this Eleventh
Supplemental Indenture 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 of the coupons outstanding under the Mortgage.
SECTION 6.06. This Eleventh 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.
17
IN WITNESS WHEREOF, PACIFICORP has caused its corporate name to
be hereunto affixed, and this instrument to be signed and sealed by an
Authorized Executive Officer of the Company, and its corporate seal to be
attested to by its Secretary or one of its Assistant Secretaries for and in its
behalf, 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 /s/ R. F. LANZ
----------------------------
Vice President
Attest:
s/s LENORE M. MARTIN
- -------------------------------------
Assistant Secretary
CHEMICAL BANK
as Trustee
By s/s F. J. GRIPPO
----------------------------
Vice President
Attest:
s/s GLENN G. MCKEEVER
- -------------------------------------
Senior Trust Officer
18
STATE OF OREGON )
)ss.:
COUNTY OF MULTNOMAH )
On this 7th day of December, 1995, before me, Sheryl L.
Stratton, a Notary Public in and for the State of Oregon, personally appeared
Robert F. Lanz and Lenore M. Martin, 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.
s/s SHERYL L. STRATTON
---------------------------------
My commission expires: 5/25/96
[SEAL] Residing at: Portland, Oregon
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
On this 13th day of December, 1995, before me, Emily Fayan, a
Notary Public in and for the State of New York, personally appeared F. J. Grippo
and Glenn G. McKeever, 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.
s/s EMILY FAYAN
---------------------------------
[SEAL] Notary Public, State of New York
No. 24-4737006
Qualified in Kings County
Commission expires:
December 31, 1995
19
EXHIBIT A
PACIFICORP
ADJUSTABLE RATE REPLACEMENT SERIES
(A SERIES OF
FIRST MORTGAGE AND COLLATERAL TRUST BONDS)
No. $
Dated:
PACIFICORP, an Oregon corporation (hereinafter called the Company), for
value received, hereby promises to pay to or registered
assigns, on November 1, 2002, at the office or agency of the Company in the
Borough of Manhattan, The City of New York, the sum of Dollars, 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, and to pay interest thereon
(computed on the basis of a 360-day year of twelve 30-day months) from the May 1
or November 1 next preceding the date hereof, or, if no interest has been paid
on the bonds of this series, from November 1, 1995, at a rate per annum
determined as provided in paragraph 2 hereof, until the principal hereof shall
become due and payable, and thereafter at a rate per annum 1% greater than said
rate so determined from time to time on any overdue principal and premium, and
(to the extent permitted by applicable law) on any overdue interest, in like
coin or currency at such office or agency on May 1 and November 1 in each year,
commencing May 1, 1996, until the Company's obligation with respect to the
payment of such principal shall have been discharged, provided that the interest
so payable on any May 1 or November 1 will, subject to certain exceptions set
out in the supplemental indenture dated as of November 1, 1995 hereinafter
mentioned, be paid to the person in whose name this bond (or any bond or bonds
previously outstanding in transfer or exchange for which this bond was issued)
is registered at the close of business on the April 15 or October 15, as the
case may be, next preceding such interest payment date.
1. This bond is one of an issue of bonds of the Company issuable in
series and is one of a series known as its First Mortgage and Collateral Trust
Bonds, Adjustable Rate Replacement Series, to be issued under and equally
secured by a Mortgage and Deed of Trust (herein, together with any indenture
supplemental thereto, including the supplemental indenture dated as of December
1, 1995, called the Mortgage), dated as of January 9, 1989 executed by the
Company to Morgan Guaranty Trust Company of New York, as Trustee (Chemical Bank,
successor). Reference is made to the Mortgage for a description of the property
mortgaged and pledged, the nature and extent of the security, the rights of the
holders of the bonds and of the Trustee in respect thereof, the duties and
immunities of the Trustee and the terms and conditions upon which the bonds are,
and are to be, secured, the circumstances under which additional bonds may be
issued and the definitions of certain terms hereinafter used.
With the consent of the Company and to the extent permitted by and in
the manner provided in the Mortgage, the rights and obligations of the Company
and/or the rights of the holders of the bonds and/or coupons and/or the terms
and provisions of the Mortgage may be modified or altered by affirmative vote of
the holders of at least sixty per centum (60%) in principal amount of bonds then
Outstanding under the Mortgage, all voting as a single class or, if the rights
of the holders of one or more, but less than all, series of bonds then
Outstanding are to be adversely affected, then by affirmative vote of the
holders of at least sixty per centum (60%) in principal amount of those bonds
then Outstanding so to be adversely affected, all voting as a single class
(excluding in any case bonds disqualified from voting by reason of the Company's
interest therein as provided in the Mortgage); provided that no such
modification or alteration shall, without the consent of the holder hereof,
impair or affect the right of the holder to receive payment of the principal of
(and premium, if any) and interest on this bond, on or after the respective due
dates expressed herein, or to institute suit for the enforcement of any such
payment on or after such respective dates, or permit the creation of any lien
ranking equal or prior to the Lien of the Mortgage or deprive the holder of the
benefit of a lien on the Mortgaged and Pledged Property or reduce the percentage
vote required to effect such modifications or alterations.
The Company has reserved the right, without any consent or other
action by holders of bonds of the Eighth series known as First Mortgage and
Collateral Trust Bonds 6 3/4% series due April 1, 2005, or any series of bonds
subsequently created under the Mortgage (including the bonds of this series), to
amend the Mortgage in order to except from the Lien of the Mortgage 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 as now in effect or as hereafter supplemented or amended.
2. Interest on this bond is payable at a rate per annum determined as
follows:
A. Interest on this bond is payable (i) at the rate of 10% per annum
for the period from the date hereof to and including October 31, 1996*, and
(ii) at a rate per annum equal to the Adjusted Rate (as defined below) for
the 12-month period thereafter commencing on November 1, in each year (each
such 12-month period being herein called an Applicable Period and each such
November 1, being herein called an Adjustment Date). The Adjusted Rate for
the Applicable Period commencing on any Adjustment Date shall be (i) the
Base Treasury Rate or the Alternate Treasury Rate (each as defined below),
as the case may be, determined for such Applicable Period in
- -------------------------
*The matter in brackets will be set forth in the bonds of this series
originally issued and in any bonds of this series issued upon a transfer or
substitution or exchange of bonds of this series on or before October 31,
1996. Any bonds of this series so issued thereafter shall specify the
Adjusted Rate then in effect and the last day of the then current
Applicable Period.
2
accordance with the Procedures (as defined and set forth below), times
127%, rounded to the nearest one tenth of one percentage point or (ii)
under the circumstances described in paragraph F below, the rate determined
by Banking Firms (as defined below) for such Applicable Period in
accordance with said paragraph F, times 127%, rounded to the nearest one
tenth of one percentage point; provided, however, that the Adjusted Rate
for any Applicable Period shall in no event be less than 10% per annum or
greater than 24% per annum. If for any reason beyond the control of the
Company, neither the Base Treasury Rate nor the Alternate Treasury Rate
shall have been so determined for any Applicable Period prior to the
December 1 next succeeding the Adjustment Date for such Applicable Period,
the Adjusted Rate for such Applicable Period shall be the interest rate per
annum in effect on the October 31 next preceding such Adjustment Date;
provided, however, that any rate thereafter determined for such Applicable
Period in accordance with paragraph F below shall be deemed to supersede
such rate for (and only for) any portion of such Applicable Period
occurring on or after the date of such determination.
B. The Base Treasury Rate for the Applicable Period commencing on
any Adjustment Date shall be the arithmetic average of the four most recent
weekly average yields to maturity for actively traded marketable U.S.
Treasury fixed interest rate securities (adjusted to constant maturities of
ten years), as published by the Federal Reserve Board in its Statistical
Release H.15 (or published in another publication or release referred to in
the immediately following sentence) published at least five days prior to
such Adjustment Date; provided that such weekly average yields to maturity
as so published shall have been computed with respect to weekly periods
ended within 50 days prior to such Adjustment Date. If one or more of such
Statistical Releases containing such weekly average yields to maturity
shall not be available, the Base Treasury Rate shall be determined with
reference to any comparable release of such Board substituted therefor or,
if such Board shall not publish a comparable release, with reference to any
official publication or release of any other U.S. Governmental department
or agency that purports to set forth such weekly average yields to maturity
(or purports to set forth daily average yields to maturity from which such
weekly average yields to maturity can be mathematically derived), adjusted
to constant maturities of ten years, in accordance with the Treasury
Criteria (as defined below) or other criteria that are substantially
equivalent to Treasury Criteria, as determined by the holders of at least
66 2/3% in amount of the bonds of this series then outstanding. In August
1982, such weekly average yields to maturity were determined on the basis
of the criteria (herein called the Treasury Criteria) set forth in an
attachment to Federal Reserve Board Statistical Release H.15 dated May 14,
1982, and reflected in such Board's Statistical Release H.15, dated August
16, 1982.
C. The Alternate Treasury Rate for the Applicable Period commencing
on any Adjustment Date shall be the arithmetic average of the average
yields to maturity of the closing bids quoted daily (or less frequently, if
daily quotations shall not be available) by each of the three Government
Securities Dealers (as defined below)
3
designated in accordance with the Procedures, during the 28-day period
ending five days prior to such Adjustment Date, for actively traded
marketable U.S. Treasury fixed interest rate securities with a final
maturity date of at least eight and one-half years but not more than eleven
and one-half years from the date of each such quotation (other than
securities which can, at the option of the holder, be surrendered at face
value in payment of any Federal estate tax and securities which provide tax
benefits to the holder and are priced to reflect such tax benefits and
securities which were originally issued at a deep or substantial discount).
D. The Adjusted Rate for the Applicable Period commencing on any
Adjustment Date shall be determined in accordance with the following
procedures (herein called the Procedures) or paragraph F below, as the case
may be:
(1) On or before the second day next preceding such Adjustment
Date the Company will deliver to the holder of this bond and to the
Trustee a certificate, signed by the principal financial officer of
the Company (herein called an Adjustment Certificate), either (a)
setting forth the Base Treasury Rate for the Applicable Period
commencing on such Adjustment Date, determined as above provided (and
accompanied by copies of each Statistical Release H.15 or other
publication or release used in determining such Base Treasury Rate),
whereupon such Base Treasury Rate shall be used to compute the
Adjusted Rate for such Applicable Period, or (b) stating that (i) one
or more of the Statistical Releases H.15 (or other publication or
release) necessary for determining such Base Treasury Rate were not
available for the four weeks next preceding such Adjustment Date,
and/or (ii) the Treasury Criteria were not in effect for such four-
week period and, for reasons specified in such certificate, the
criteria determined to be substantially equivalent to the Treasury
Criteria by the holders of at least 66 2/3% in amount of the bonds of
this series then outstanding, pursuant to paragraph B above, are not,
in the reasonable and good faith judgment of the Company, substantially
equivalent to the Treasury Criteria, and setting forth the Alternate
Treasury Rate for the Applicable Period commencing on such Adjustment
Date, determined as above provided (such Adjustment Certificate to be
accompanied by copies of the reports from which such Alternate Treasury
Rate was so determined from three Government Securities Dealers
designated by the Trustee), whereupon such Alternate Treasury Rate
shall be used to compute the Adjusted Rate for such Applicable Period.
(2) A "Government Securities Dealer" shall mean Morgan Guaranty
Trust Company of New York or any other nationally recognized
commercial bank or investment banking firm actively engaged in the
trading of U.S. Treasury fixed interest rate securities of the types
reflected in the Treasury Criteria.
4
(3) In the event that during any Applicable Period there shall
occur (whether by reason of republication to correct an error or
otherwise) any change in the published data used as a basis for
determination of the Base Treasury Rate (and, therefore, the Adjusted
Rate) then in effect with respect to such Applicable Period, the Company
will, within 30 calendar days thereafter, deliver to the holder of this
bond and to the Trustee a new adjustment Certificate setting forth the
new Base Rate and the other information required by the foregoing Clause
(1) with respect to such new Base Treasury Rate, whereupon such new Base
Treasury Rate shall be used to recompute the Adjusted Rate with respect
to such Applicable Period, and such new Adjusted Rate shall be applicable
retroactively from and after the Adjustment Date on which such Applicable
Period commenced; provided, however, that the Company need only take such
action is such change in the published data shall occur on a date no
later than 90 calendar days after the beginning of such Applicable
Period.
(4) If (i) the holders of at least 33 1/3 %in amount of the
bonds of this series then outstanding or (ii) any of the original holders
of the bonds of this series shall deliver to the Company, the Trustee and
each other holder of outstanding bonds of this series, within 15 days
after the Company's delivery of an Adjustment Certificate with respect to
any Applicable Period pursuant to the foregoing Clause (1) or Clause (3),
written notice to the effect that, for reasons specified in such notice,
the Base Treasury Rate set forth in such Adjustment Certificate has not
been determined in accordance with the Treasury Criteria or other
criteria then in effect pursuant to paragraph B above, then the Company
will deliver to the holder of this bond, within 10 working days after the
receipt of such written notice, a second Adjustment Certificate (a)
setting forth the Alternate Treasury Rate for such Applicable Period
determined as above provided (and accompanied by copies of the reports
from which such Alternate Treasury Rate was so determined from three
Government Securities Dealers designated by the Trustee), whereupon such
Alternate Treasury Rate shall be used to compute the Adjusted Rate for
such Applicable Period, or (b) stating that for reasons beyond the control
of the Company, the Alternate Treasury Rate for such Applicable Period
cannot be determined, and setting forth in reasonable detail the efforts
made to determine such rate, whereupon it shall be deemed that for reasons
beyond the control of the Company neither the Base Treasury Rate nor the
Alternate Treasury Rate has been determined for such Applicable Period.
E. The Company will keep a copy of each Adjustment Certificate at its
principal executive office and permit any holder of any of the bonds of this
series (or any prospective purchaser of any of the bonds of this series
designated by the holder thereof) to inspect such Adjustment Certificate upon
request.
5
F. If for any reason beyond the control of the Company, neither the
Base Treasury Rate nor the Alternate Treasury Rate shall have been determined
for any Applicable Period in accordance with the Procedures prior to the
December 1 nest succeeding the Adjustment Date on which such Applicable
Period commences, the Company (i) will give written notice to each holder of
any bonds of this series and to the Trustee, in each case within five
business days after such December 1, specifying the reasons why neither the
Base Treasury Rate nor the Alternate Treasury Rate shall have been so
determined and (ii) will keep a copy of such notice at its principal
executive office and permit any holder of any of the bonds of this series (or
any prospective purchaser of any of the bonds of this series designated by
the holder thereof) to inspect such notice upon request. Within 10 calender
days after the giving of such notice the Company shall designate two Banking
Firms, and within ten calendar days after receipt of such notice the holders
of at least 66 2/3 % in amount of the bonds of this series then outstanding
shall designate two Banking Firms. The four Banking Firms so designated
shall, within 10 calendar days after the last of said Banking Firms shall
have been so designated, designate a fifth Banking Firm. (If within such 10
calendar day period, the four Banking Firms do not agree upon the appointment
of a fifth Banking Firm, then either the Company or the requisite holders, as
the case may be, on behalf of both, may request such appointment by the then
President of the Association of the Bar of the City of New York (or any
organization successor thereto) or in his absence, failure, refusal or
inability to act, then either the Company or the requisite holders, as the
case may be, may apply to the Supreme Court, New York County, for the
appointment of such fifth Banking Firm and the other party shall not raise
any question as to the court's full power and jurisdiction to entertain the
application and make the appointment.) For purposes of this paragraph, a
"Banking Firm" shall mean Morgan Guaranty Trust Company of New York or any
nationally recognized commercial bank or investment banking firm that was
within the 12-month period prior to its designation actively engaged in the
trading of U.S. Treasury fixed interest rate securities of the types
reflected in the Treasury Criteria. Each Banking Firm so designated shall
notify the Trustee and the Company in writing, not later than 10 calendar
days after its designation as hereinabove provided, of the yield to maturity
which, in its reasonable and good faith judgement, would then be obtainable
for marketable U.S. Treasury fixed interest rate securities with a final
maturity date of ten years from the date of such notice (other than
securities which can, at the option of the holder, be surrendered at face
value in payment of any Federal estate tax and securities which provide tax
benefits to the holder and are priced to reflect such tax benefits and
securities which were originally issued at a deep or substantial discount).
The arithmetic average of said yields to maturity set forth in said notices
of said five Banking Firms, times 127%, rounded to the nearest one tenth of
one percentage point, shall be the Adjusted Rate with respect to such
Applicable Period, and such Adjusted Rate shall be applicable for the
remainder of such Applicable Period. The Company will give prompt written
notice to each holder of any bonds of this series and the Trustee of such new
Adjusted Rate (such notice to be accompanied by copies of the written notices
of said five Banking Firms). Notwithstanding anything herein to the
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contrary, if the Company or the requisite holders shall fail to designate
one or both Banking Firms within the time period set forth above or if
any of the Banking Firms designated by the Company or the requisite
holders shall refuse to participate in the selection of a fifth Banking
Firm required by the third or fourth sentence of this paragraph, then the
arithmetic average of the yields to maturity set forth in the written
notices of the Banking Firms designated or participating, as the case may
be, times 127%, rounded to the nearest one-tenth percentage point, shall
be the Adjusted Rate with respect to such Applicable Period, and such
Adjusted Rate shall be applicable for the remainder of such Applicable
Period.
3. The principal hereof may be declared or may become prior to the
maturity date hereinbefore named on the conditions, in the manner and at the
time set forth in the Mortgage, upon the occurrence of a Default as in the
Mortgage provided.
4 This bond is transferable as prescribed in the Mortgage by the
registered owner hereof in person, 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 surrender and cancellation of this bond, together with a written
instrument of transfer, if required by the Company, duly executed by the
registered owner or by his duly authorized attorney, and, thereupon, a new fully
registered bond of the same series for a like principal amount will be issued to
the transferee in exchange hereof as provided in the Mortgage. Subject to the
foregoing provisions as to the person entitled to receive payment of interest
hereon, the Company and the Trustees may deem and treat the person in whose name
this bond is registered as the holder and the absolute owner hereof for the
purpose of receiving payment and for all other purposes, and neither the Company
nor the Trustees shall be affected by any notice to the contrary.
5. In the manner prescribed in the Mortgage, any bonds of this
series, upon surrender thereof for cancellation at the office or agency of the
Company in the Borough of Manhattan, The City of New York, are exchangeable for
a like aggregate principal amount of fully registered bonds of the same series
of other authorized denominations.
6. The bonds of this series are redeemable (as more fully set forth in
the Supplemental Indenture dated as of December 1, 1995 to the Mortgage) at the
option of the Company at any time (or from time to time) on or after November 1,
1996 and prior to maturity, either as a whole or in part, upon the notice (which
may state that such redemption shall be made subject to the receipt of the
redemption moneys by the Trustee before the date fixed for redemption) mailed at
least thirty (30) and not more than sixty (60) days prior to the date fixed for
redemption, at the following general redemption prices, expressed in percentages
of the principal amount of the bonds to be redeemed:
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GENERAL REDEMPTION PRICES
If redeemed during the twelve months on the thirty-first day of
October,
1997........104.41% 2000...........101,76%
1998........103.53 2001...........100.88
1999........102.64 2002...........100.00
in each case, together with accrued interest to the date for redemption.
7. As provided in the Mortgage, the Company shall not be required to
make transfers or exchanges of bonds of any series for a period of fifteen (15)
days next preceding any designation of bonds of such series to be redeemed, and
the Company shall not be required to make transfers or exchanges of any bonds
designated in whole or in part for redemption.
8. No recourse shall be had for the payment of the principal of,
premium, if any, or interest on this bond against any incorporator or any past,
present or future subscriber to the capital stock, shareholder, officer or
director of the Company or of any predecessor or successor corporation, as such,
either directly or through the Company or any predecessor or successor
corporation, under any rule or law, statute or constitution or by the
enforcement of any assessment or otherwise, all such liability of incorporators,
subscribers, shareholders, officers and directors being released by the holder
or owner hereof by the acceptance of this bond and being likewise waived and
released by the terms of the Mortgage.
This bond shall not become obligatory until Chemical Bank, a New York
corporation, the Trustee under the Mortgage, or its successor thereunder, shall
have signed the form of authentication certificate endorsed hereon.
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IN WITNESS WHEREOF, PacifiCorp has caused this bond to be signed in its
corporate name by its Chairman of the Board, President or one of its Vice
Presidents by his or her signature or a facsimile thereof, and its corporate
seal to be impressed or imprinted hereon and attested by its Secretary or one of
its Assistant Secretaries by his or her signature or a facsimile thereof.
PACIFICORP
Dated: By:
-------------------------------------
Vice President
[SEAL]
Attest:
---------------------------------
Assistant Secretary
TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds of the series herein designated, described or
provided for in the within-mentioned Mortgage.
CHEMICAL BANK, as Trustee
By:
------------------------------------------
Authorized Officer
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EXHIBIT B
This Bond has not been registered under the Securities Act of 1933, as amended,
and may not be offered or sold in contravention of said Act
and is not transferable except to a successor Agent
under the Loan Agreement, dated as of July 22, 1987, among PacifiCorp,
The Long-Term Credit Bank of Japan, Limited, as agent,
and the financial institutions named therein, as amended
(Temporary Registered Bond)
PACIFICORP
9 3/8% REPLACEMENT SERIES DUE 1997
(A SERIES OF
FIRST MORTGAGE AND COLLATERAL TRUST BONDS)
No. $50,000,000
Dated: December 15, 1995
PACIFICORP, an Oregon corporation (hereinafter called the Company), for
value received, hereby promises to pay to The Long-Term Credit Bank of Japan,
Limited, as agent, or registered assigns, on July 22, 1997, at the office or
agency of the Company in the Borough of Manhattan, The City of New York, the sum
of Fifty Million Dollars, 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,
and to pay interest thereon from the January 22 or July 22 next preceding the
date hereof, or if no interest has been paid on the bonds of this series, from
July 22, 1995, at the rate of nine and three-eighths per centum (9 3/8%) per
annum in like coin or currency at such office or agency on January 22 and July
22 in each year, commencing January 22, 1996, until the principal of this bond
shall have been paid or duly provided for.
1. This bond is one of an issue of bonds of the Company issuable in
series and is one of a series known as its First Mortgage and Collateral Trust
Bonds, 9 3/8% Replacement Series Due 1997, to be issued under and equally
secured by a Mortgage and Deed of Trust (herein, together with any indenture
supplemental thereto, including the Eleventh Supplemental Indenture dated as of
December 1, 1995, called the Mortgage), dated as of January 9, 1989 executed by
the Company to Morgan Guaranty Trust Company of New York, as Trustee (Chemical
Bank, successor). Reference is made to the Mortgage for a description of the
property mortgaged and pledged, the nature and extend of the security, the
rights of the holders of the bonds and of the Trustee in respect thereof, the
duties and immunities of the Trustee and the terms and conditions upon which the
bonds are, and are to be, secured, the circumstances under which additional
bonds may be issued and the definitions of certain terms hereinafter used.
With the consent of the Company and to the extent permitted by and in
the manner provided in the Mortgage, the rights and obligations of the Company
and/or the rights of the holders of the bonds and/or coupons and/or the terms
and provisions of the Mortgage may be modified or altered by affirmative vote of
the holders of at least sixty per centum (60%) in principal amount of bonds then
Outstanding under the Mortgage, all voting as a single class or, if the rights
of the holders of one or more, but less than all, series of bonds then
Outstanding are to be adversely affected, then by affirmative vote of the
holders of at least sixty per centum (60%) in principal amount of those bonds
then Outstanding so to be adversely affected, all voting as a single class
(excluding in any case bonds disqualified from voting by reason of the Company's
interest therein as provided in the Mortgage); provided that no such
modification or alteration shall, without the consent of the holder hereof,
impair or affect the right of the holder to receive payment of the principal of
(and premium, if any) and interest on this bond, on or after the respective due
dates expressed herein, or to institute suit for the enforcement of any such
payment on or after such respective dates, or permit the creation of any lien
ranking equal or prior to the Lien of the Mortgage or deprive the holder of the
benefit of a lien on the Mortgaged and Pledged Property or reduce the percentage
vote required to effect such modifications or alterations.
The Company has reserved the right, without any consent or other
action by holders of bonds of the Eighth series known as First Mortgage and
Collateral Trust Bonds 6 3/4% series due April 1, 2005, or any series of bonds
subsequently created under the Mortgage (including the bonds of this series), to
amend the Mortgage in order to except from the Lien of the Mortgage 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 as now in effect or as hereafter supplemented or amended.
2. The principal hereof may be declared or may become due prior to the
maturity date hereinbefore named on the conditions, in the manner and at the
time set forth in the Mortgage, upon the occurrence of a Default as in the
Mortgage provided.
3. The bonds of this series are subject to redemption as provided in the
Eleventh Supplemental Indenture.
4. The bonds of this series have been issued to secure the payment of the
Company's obligations under the Loan Agreement entered into among the Company,
The Long Term Credit Bank of Japan, Limited, as agent (herein called the
"Agent"), and the financial institutions named therein, dated as of July 22,
1987 (the amounts borrowed thereunder herein called the "Advance"), as amended.
The obligation of the Company to make payments with respect to the principal of
and interest on bonds of this series shall be fully or partially, as the case
may be, satisfies and discharged to the extent that, at the time that any such
payment shall be due the then due principal of and interest on the Advance shall
have been fully or partially paid. Satisfaction of any obligation to the extent
that payment is made with respect to the Advance means that if any payment is
made on the principal of or interest on the Advance, a
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corresponding payment obligation with respect to the principal of or interest on
the Bonds shall be deemed discharged in the same proportion as the payment with
respect to the Advance discharges the outstanding obligation with respect to the
Advance. The Trustee may conclusively presume that the obligation of the
Company to make payments with respect to the principal of and interest on the
bonds of this series shall have been fully satisfied and discharged unless and
until the Trustee shall have received a written notice from the Agent under the
aforementioned Loan Agreement, signed by a General Manager and Agent, Vice
President and Deputy General Manager or Assistant Vice President and Manager of
the Agent, stating (i) that timely payment of the principal of or interest on
the Advance has not been made, and (ii) the amount of funds required to make
such payment of principal or interest or both as the case may be.
5. This bond is transferable only to a successor to the Agent under the
aforementioned Loan Agreement, upon surrender hereof for cancellation at the
office or agency of the Company in the borough of Manhattan, The City of New
York, and upon compliance with the provisions of the Eleventh Supplemental
Indenture and, thereupon, a new fully registered temporary or definitive bond of
the same series for a like principal amount will be issued to such successor
Agent in exchange herefor as provided in the Mortgage. The Company and the
Trustee may deem and treat the person in whose name this bond is registered as
the absolute owner hereof for the purpose of receiving payment and for all other
purposes and neither the Company nor the Trustee shall be affected by any notice
to the contrary.
6. In the manner prescribed in the Mortgage, any bonds of this series,
upon surrender thereof for cancellation at the office or agency of the Company
in the borough of Manhattan, The City of New York, are exchangeable for a like
aggregate principal amount of fully registered bonds of the same series of other
authorized denominations.
7. As provided in the Mortgage, the Company shall not be required to make
transfers or exchanges of bonds of any series for a period of fifteen (15) days
next preceding any interest payment date for bonds of such series, or next
preceding any designation of bonds of such series to be redeemed, and the
Company shall not be required to make transfers or exchanges of any bonds
designated in whole or in part for redemption.
8. No recourse shall be had for the payment of the principal of, premium,
if any, or interest on this bond against any incorporator or any past, present
or future subscriber to the capital stock, shareholder, officer or director of
the Company or of any predecessor or successor corporation, as such, either
directly or through the Company or any predecessor or successor corporation,
under any rule of law, statute or constitution or by the enforcement of any
assessment or otherwise, all such liability of incorporators, subscribers,
shareholders, officers and directors being released by the holder or owner
hereof by the acceptance of this bond and being likewise waived and released by
the terms of the Mortgage.
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This bond shall not become obligatory until Chemical Bank, a New York
corporation, the Trustee under the Mortgage, or its successor thereunder, shall
have signed the form of authentication certificate endorsed hereon.
IN WITNESS WHEREOF, PacifiCorp has cause this bond to be signed in its
corporate name by its Chairman of the Board, President or one of its Vice
Presidents by his or her signature or a facsimile thereof, and its corporate
seal to be impressed or imprinted hereon and attested by its Secretary or one of
its Assistant Secretaries by his or her signature or a facsimile thereof.
PACIFICORP
Dated: December 15, 1995 By:
-------------------------------------
Vice President
[SEAL]
Attest:
---------------------------------
Assistant Secretary
TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds of the series herein designated, described or
provided for in the within-mentioned Mortgage.
CHEMICAL BANK, as Trustee
By:
------------------------------------------
Authorized Officer
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NOTATION OF PAYMENTS OF PRINCIPAL ON THE WITHIN BOND BY RETIREMENT OF A PORTION
THEREOF
NOTE: NO WRITING BELOW EXCEPT BY THE TRUSTEE
Date Principal Balance of Principal Signature of the Trustee
Amount Paid Amount Outstanding
- --------------------------------------------------------------------------------
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