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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 11, 1995
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PORTLAND GENERAL ELECTRIC COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
OREGON 93-0256820
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
121 SW SALMON STREET
PORTLAND, OREGON 97204
(503) 464-8000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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LEONARD A. GIRARD COPY TO:
PORTLAND GENERAL ELECTRIC COMPANY WILLIAM J. LYNCH, ESQ.
17TH FLOOR, ONE WORLD TRADE CENTER MORGAN, LEWIS & BOCKIUS
121 SW SALMON STREET 101 PARK AVENUE
PORTLAND OR 97204 NEW YORK, NY 10178
(503) 464-8814
(NAME, ADDRESS INCLUDING ZIP CODE, AND TELEPHONE
NUMBER INCLUDING AREA CODE, OF AGENT FOR
SERVICE)
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
After the effective date of the Registration Statement as determined by
market conditions and other factors.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. /X/
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE REGISTRATION FEE
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Debt Securities............... $250,000,000(1) 100%(2) $250,000,000(1) $86,207.50(3)
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(1) In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this registration statement exceed
$250,000,000. If any of the securities are issued at an original issue
discount, the aggregate initial offering price as so discounted will not
exceed $250,000,000, even though the stated principal amount of the
securities may exceed that amount.
(2) The proposed maximum initial offering price per unit will be determined from
time to time in connection with the issuance of the securities registered
hereunder.
(3) Estimated pursuant to Rule 457(o), solely for the purpose of calculating the
Registration Fee.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED SEPTEMBER 11, 1995
PROSPECTUS
PORTLAND GENERAL ELECTRIC COMPANY
DEBT SECURITIES
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Portland General Electric Company, an Oregon corporation ("PGE" or the
"Company"), may offer and sell, from time to time or all at one time, in one or
more series, together or separately, in amounts, at prices and on terms to be
determined at the time of the offering, secured and unsecured debt securities
("Debt Securities") consisting of: (i) secured first mortgage bonds, including
medium term notes ("First Mortgage Bonds"), and (ii) unsecured debt securities,
which may be either Senior Unsecured Debt Securities or Junior Subordinated
Debentures ("Unsecured Debt Securities"). Senior Unsecured Debt Securities will
be unsecured and will rank on a parity with all other unsecured and
unsubordinated indebtedness of the Company but will be junior to all first
mortgage bonds, including the First Mortgage Bonds. Junior Subordinated
Debentures will be unsecured and subordinate and junior in right of payment to
all Senior Indebtedness (as defined herein) of the Company.
The specific terms of the offering and sale of the Debt Securities,
including (a) the specific designation, the aggregate principal amount, the
maturity, the rate (which may be fixed, floating, or adjustable), the time of
payment of interest, any redemption or sinking fund provisions, the extent of
any subordination and any other rights and restrictions of each series of the
Debt Securities; and (b) the initial public offering price, listing on any
securities exchange, and the agents, dealers, or underwriters, if any, to be
utilized in connection with the sale of each series of the Debt Securities, will
be set forth in an accompanying Prospectus Supplement. If so specified in the
applicable Prospectus Supplement, the Debt Securities or a series thereof may be
issued in whole or in part in the form of one or more temporary or permanent
global securities. The Company reserves the sole right to accept and, together
with its agents from time to time, to reject in whole or in part any proposed
purchase of Debt Securities to be made directly or through agents.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
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The Debt Securities may be sold directly by the Company or through agents,
underwriters, or dealers designated from time to time. If any agents of the
Company or any underwriters are involved in the sale of the Debt Securities or
any series thereof in respect of which this Prospectus is being delivered, the
names of such agents or underwriters and any applicable discounts or commissions
with respect to the Debt Securities or any such series thereof so sold will also
be set forth in the Prospectus Supplement.
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THE DATE OF THIS PROSPECTUS IS , 199
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AVAILABLE INFORMATION
The Company and its parent, Portland General Corporation ("Portland
General"), are subject to the information requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and in accordance therewith file
reports and other information with the Securities and Exchange Commission (the
"Commission"). Reports, proxy statements and other information concerning the
Company and Portland General can be inspected and copied at the public reference
facilities maintained by the Commission at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the Commission's Regional Offices at 7 World
Trade Center, Suite 1300, New York, New York 10048; and 500 West Madison, Suite
1400, Chicago, Illinois 60661-2511. Copies of such material can be obtained upon
written request addressed to the Commission, Public Reference Section, 450 Fifth
Street, N.W., Washington, D.C. 20549 at prescribed rates. In addition, reports,
proxy statements and other information concerning the Company and Portland
General may be inspected at the offices of both the New York Stock Exchange, 20
Broad Street, New York, New York 10005 and The Pacific Stock Exchange, 301 Pine
Street, San Francisco, California 94104, on which Portland General Common Stock
and certain of the Company's securities are listed.
The Company has filed with the Commission a registration statement on Form
S-3 (herein, together with all amendments and exhibits thereto, referred to as
the "Registration Statement") under the Securities Act of 1933 (the "Securities
Act"). This Prospectus does not contain all of the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. For further information, reference
is hereby made to the Registration Statement.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed with the Securities and Exchange Commission
by the Company, are incorporated in this Prospectus by reference as of their
respective dates of filing:
1. Annual Report on Form 10-K for the year ended December 31, 1994.
2. Quarterly Reports on Form 10-Q for the quarters ended March 31, 1995 and
June 30, 1995.
3. Current Report on Form 8-K dated August 16, 1995.
All reports filed by the Company pursuant to Sections 13, 14, or 15(d) of
the Securities Exchange Act of 1934 subsequent to the date of this Prospectus
and prior to the termination of the offering or offerings hereunder shall be
deemed to be incorporated by reference in this Prospectus and to be part hereof
from the date of the filing of such reports. The documents enumerated above or
subsequently filed by the Company pursuant to Section 13 of the Securities
Exchange Act of 1934 prior to the filing with the Commission of the Company's
most recent annual report on Form 10-K shall not be incorporated by reference in
this Prospectus or be a part hereof from and after the filing of such annual
report on Form 10-K.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person to
whom a copy of this Prospectus has been delivered, on the written or oral
request of any such person, a copy of any or all of the documents referred to
above which have been or may be incorporated in this Prospectus by reference,
other than exhibits to such documents. Requests for such copies should be
directed to Steven N. Elliott, Assistant Treasurer, Portland General Electric
Company, 121 S.W. Salmon Street, Portland, Oregon 97204 (telephone number:
503/464-8917).
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PORTLAND GENERAL ELECTRIC COMPANY
Portland General Electric Company, incorporated in Oregon in 1930, has
principal offices located at 121 S.W. Salmon Street, Portland, Oregon 97204
(telephone number: 503/464-8000). The Company is an electric utility engaged in
the generation, purchase, transmission, distribution and sale of electricity
primarily in the State of Oregon. The Company's service area is 3,170 square
miles, including 54 incorporated cities of which Portland and Salem are the
largest, within a State approved service area allocation of 4,070 square miles.
A portion of the City of Portland is serviced by another Oregon utility. The
Company estimates that the population of its service area at December 31, 1994
was approximately 1.35 million, constituting approximately 45% of the State's
population. At June 30, 1995, the Company served more than 640,000 customers.
The Company is a wholly owned subsidiary of Portland General Corporation
("Portland General"), an electric utility holding company exempt from the
application of the Public Utility Holding Company Act of 1935 except Section
9(a)(2) relating to the acquisition of securities of other public utility
companies.
USE OF PROCEEDS
Unless otherwise indicated in a Prospectus Supplement, the net proceeds
from the sale of the Debt Securities will be used by PGE for refunding fixed and
variable rate securities, reducing short-term debt and other corporate purposes,
including its construction program.
RATIO OF EARNINGS TO FIXED CHARGES
In computing the ratio of earnings to combined fixed charges (i) earnings
have been based on income from continuing operations before income taxes and
fixed charges (exclusive of interest capitalized), and (ii) fixed charges
consist of interest and amortization of debt discount and expense (including
amounts capitalized) and the estimated interest portion of rents.
TWELVE
MONTHS YEARS ENDED DECEMBER 31
ENDED --------------------------------
JUNE 30, 1995 1994 1993 1992 1991 1990
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Ratio of Earnings to Fixed Charges (unaudited)....... 2.60 3.14 3.13 3.08 2.31 3.12
DESCRIPTION OF DEBT SECURITIES
JUNIOR SUBORDINATED DEBENTURES
Junior Subordinated Debentures may be issued from time to time in one or
more series under an indenture, dated as of September 1, 1995 (the "Junior
Indenture"), between PGE and The Bank of New York, as Trustee (the "Junior
Trustee"), a form of which is filed as an exhibit to the Registration Statement
of which this Prospectus is a part. The following summary does not purport to be
complete and is subject in all respects to the provisions of, and is qualified
in its entirety by reference to, the Junior Indenture, to which reference is
hereby made for a full description of such provisions, including the definition
of certain terms used and for other information regarding the Junior
Subordinated Debentures. Whenever particular provisions or defined terms in the
Junior Indenture are referred to herein, such provisions or defined terms are
incorporated by reference herein. Numerical references used herein are
references to the Junior Indenture unless otherwise noted. The particular terms
of the Junior Subordinated Debentures offered by any Prospectus Supplement and
the extent, if any, to which the general provisions described herein may apply
to such Junior Subordinated Debentures will be described in the Prospectus
Supplement relating to such Junior Subordinated Debentures.
GENERAL
The Junior Subordinated Debentures will be unsecured, subordinated
obligations of PGE. The Junior Indenture does not limit the aggregate principal
amount of Junior Subordinated Debentures which may be
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issued thereunder and provides that the Junior Subordinated Debentures may be
issued thereunder from time to time in one or more series pursuant to an
indenture supplemental to the Junior Indenture. (Section 2.01) The aggregate
principal amount of Junior Subordinated Debentures of any series will be set
forth in the Prospectus Supplement for such series.
Reference is made to the Prospectus Supplement which will accompany this
Prospectus for the following terms of each particular series of Junior
Subordinated Debentures being offered thereby: (i) title of such series of
Junior Subordinated Debentures; (ii) the aggregate principal amount of such
Junior Subordinated Debentures; (iii) the date or dates on which the principal
of such series of Junior Subordinated Debentures is payable; (iv) the rate or
rates, if any, at which such series of Junior Subordinated Debentures will bear
interest or the method of determination of such rate or rates, the date or dates
from which such interest shall accrue, the date or dates on which such interest
will be payable or the manner of determination of such interest payment dates
and the record dates for the interest payable on any such interest payment
dates; (v) the right, if any, to extend the interest payment periods and the
duration of such extension; (vi) the place where the principal of, premium, if
any, and interest on such series of Junior Subordinated Debentures will be
payable; (vii) the period or periods, if any, within which, the price or prices
at which and the terms and conditions upon which such series of Junior
Subordinated Debentures may be redeemed, in whole or in part, at the option of
PGE; (viii) the obligation, if any, of PGE to redeem or purchase such series of
Junior Subordinated Debentures pursuant to any sinking fund or analogous
provisions or at the option of the holder thereof, and the terms and conditions
upon which such series of Junior Subordinated Debentures shall be redeemed or
purchased, in whole or part, pursuant to such obligations; (ix) the
denominations in which such series of Junior Subordinated Debentures shall be
issuable; (x) any other terms of the Junior Subordinated Debentures of such
series; and (xi) whether the Junior Subordinated Debentures of such series are
issuable as a global security, and in such case, the identity of the depository.
(Section 2.01)
The Junior Indenture does not contain any provisions that afford holders of
Junior Subordinated Debentures protection in the event of a highly leveraged
transaction involving PGE.
SUBORDINATION
The Junior Indenture provides that the Junior Subordinated Debentures are
subordinate and junior in right of payment to all Senior Indebtedness (as
defined below) of PGE as provided in the Junior Indenture. No payment of
principal of (including redemption and sinking fund payments), premium, if any,
or interest on, the Junior Subordinated Debentures may be made if any Senior
Indebtedness is not paid when due, any applicable grace period with respect to
such default has ended and such default has not been cured or waived, or if the
maturity of any Senior Indebtedness has been accelerated because of a default.
Upon any payment or distribution of assets of PGE to creditors upon any
dissolution, winding up, liquidation or reorganization, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or other proceedings, all
principal of, and premium, if any, and interest due or to become due on, all
Senior Indebtedness must be paid in full before the holders of the Junior
Subordinated Debentures are entitled to receive or retain any payment. Subject
to the prior payment of all Senior Indebtedness, the rights of the holders of
the Junior Subordinated Debentures will be subrogated, in certain instances, to
the rights of the holders of Senior Indebtedness to receive payments or
distributions applicable to Senior Indebtedness until all amounts owing on the
Junior Subordinated Debentures are paid in full. (Sections 14.01 to 14.05)
The term "Senior Indebtedness" shall mean the principal of, and premium, if
any, and interest on and any other payment or obligations due pursuant to any of
the following, whether outstanding at the date of execution of the Junior
Indenture or thereafter incurred, created or assumed: (a) all indebtedness of
the Company for money borrowed, (b) all indebtedness evidenced by notes,
debentures, bonds, securities, or other similar instruments issued by the
Company, (c) all capital lease obligations of the Company, (d) all obligations
of the Company issued or assumed as the deferred purchase price of property, all
conditional sales obligations of the Company and all obligations of the Company
under any title retention agreement (excluding trade accounts payable arising in
the ordinary course of business), (e) obligations of the Company for the
reimbursement of any obligor on any letter of credit, banker's acceptance,
security purchase facility, surety bond or similar credit transaction entered
into in the ordinary course of business of the Company, (f) all
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indebtedness and obligations of others of the kinds described in the clauses (a)
through (e), assumed by or guaranteed in, any manner by the Company or in effect
guaranteed by the Company through an agreement to purchase, contingent or
otherwise, and (g) all renewals, extensions or refundings of indebtedness of the
kinds described in clauses (a) through (f) unless, in the case of any particular
indebtedness, obligation, renewal, extension or refunding, the instrument
creating or evidencing the same or the assumption or guarantee of the same
expressly provides that such indebtedness, obligation, renewal, extension or
refunding is not superior in right of payment to or is pari passu with the
Debentures. Such Senior Indebtedness shall continue to be Senior Indebtedness
and entitled to the benefits of the subordination provisions set forth in
Article Fourteen of the Junior Indenture irrespective of any amendment,
modification or waiver of any term of such Senior Indebtedness.
The Junior Indenture does not limit the aggregate amount of Senior
Indebtedness which may be issued. As of June 30, 1995, Senior Indebtedness of
PGE aggregated approximately $2,000,000,000.
CERTAIN COVENANTS
If there shall have occurred any event that would, with the giving of
notice or the passage of time, or both, constitute an Event of Default under the
Junior Indenture, as described under "Events of Default" below, or if PGE
exercises its option to extend the interest payment period described in clause
(v) under "General" above, PGE will not, until all defaulted interest on the
Junior Subordinated Debentures and all interest accrued on the Junior
Subordinated Debentures during any such extended interest payment period and all
principal and premium, if any, then due and payable on the Junior Subordinated
Debentures shall have been paid in full, (i) declare, set aside or pay any
dividend or distribution on any capital stock of PGE, including its Common
Stock, except for dividends or distribution in shares of its capital stock or in
rights to acquire shares of its capital stock, or (ii) repurchase, redeem or
otherwise acquire, or make any sinking fund payment for the purchase or
redemption of, any shares of its capital stock (except by conversion into or
exchange for shares of its capital stock and except for a redemption, purchase
or other acquisition of shares of its capital stock made for the purpose of an
employee incentive plan or benefit plan of PGE or any of its subsidiaries and
except for mandatory redemption or sinking fund payments with respect to any
series of preferred stock of PGE that are subject to mandatory redemption or
sinking fund requirements, provided that the aggregate par value and/or stated
value of all such series outstanding at the time of any such payment does not
exceed five percent of the aggregate of (1) the total principal amount of all
bonds or other securities representing secured indebtedness issued or assumed by
PGE and then outstanding and (2) the capital and surplus of PGE to be stated on
the books of account of PGE after giving effect to such payment); provided,
however, that any moneys deposited in any sinking fund and not in violation of
this provision may thereafter be applied to the purchase or redemption of such
preferred stock in accordance with the terms of such sinking fund without regard
to the restrictions contained in this provision. (Section 4.06) As of June 30,
1995, the aggregate stated value of such series of PGE's preferred stock
outstanding was approximately $50 million, which represented approximately 2.7%
of the aggregate of clauses (1) and (2) above at such date.
FORM, EXCHANGE, REGISTRATION AND TRANSFER
Junior Subordinated Debentures of each series will be issued in registered
form and will be either certificated or represented by one or more global
securities. If not represented by one or more global securities, Junior
Subordinated Debentures may be presented for registration of transfer (with the
form of transfer endorsed thereon duly executed) or exchange, at the office of
the Debenture Registrar or at the office of any transfer agent designated by PGE
for such purpose with respect to any series of Junior Subordinated Debentures
and referred to in an applicable Prospectus Supplement, without service charge
and upon payment of any taxes and other governmental charges as described in the
Junior Indenture. Such transfer or exchange will be effected upon the Debenture
Registrar or such transfer agent, as the case may be, being satisfied with the
document of title and identity of the person making the request. PGE has
appointed the Junior Trustee as Debenture Registrar with respect to the Junior
Subordinated Debentures. (Section 2.05) If a Prospectus Supplement refers to any
transfer agents (in addition to the Debenture Registrar) initially designated by
PGE with respect to any series of Junior Subordinated Debentures, PGE may at any
time rescind the designation of
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any such transfer agent or approve a change in the location through which any
such transfer agent acts, except that PGE will be required to maintain a
transfer agent in each place where Junior Subordinated Debentures of such series
may be presented for payment. (Section 4.02) PGE may at any time designate
additional transfer agents with respect to any series of Junior Subordinated
Debentures.
In the event of any redemption in part, PGE shall not be required to (i)
issue, register the transfer of or exchange any Junior Subordinated Debenture
during a period beginning at the opening of business 15 days before any
selection for redemption of Junior Subordinated Debentures of like tenor and of
the series of which such Junior Subordinated Debenture is a part, and ending at
the close of business on the earliest date in which the relevant notice of
redemption is deemed to have been given to all holders of Junior Subordinated
Debentures of like tenor and of such series to be redeemed and (ii) register the
transfer of or exchange any Junior Subordinated Debentures so selected for
redemption, in whole or in part, except the unredeemed portion of any Junior
Subordinated Debenture being redeemed in part. (Section 2.05)
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal and premium (if any) on any Junior Subordinated Debenture will be
made only against surrender to the Paying Agent of such Junior Subordinated
Debenture. Unless otherwise indicated in an applicable Prospectus Supplement,
principal of, premium, if any, and interest on Junior Subordinated Debentures
will be payable, subject to any applicable laws and regulations, at the office
of such Paying Agent or Paying Agents as PGE may designate from time to time,
except that at the option of PGE payment of any interest may be made by check
mailed to the address of the person entitled thereto as such address shall
appear in the Debenture Register with respect to such Junior Subordinated
Debentures. Unless otherwise indicated in an applicable Prospectus Supplement,
payment of interest on a Junior Subordinated Debenture on any Interest Payment
Date will be made to the person in whose name such Junior Subordinated Debenture
(or Predecessor Debenture) is registered at the close of business on the Regular
Record Date for such interest payment. (Section 2.03)
The Junior Trustee will act as Paying Agent with respect to the Junior
Subordinated Debentures. PGE may at any time designate additional Paying Agents
or rescind the designation of any Paying Agents or approve a change in the
office through which any Paying Agent acts, except that PGE will be required to
maintain a Paying Agent in each place where Junior Subordinated Debentures of
each series may be presented for payment. (Section 4.02)
All moneys paid by PGE to a Paying Agent for the payment of the principal
of, premium, if any, or interest on any Junior Subordinated Debenture of any
series which remain unclaimed at the end of two years after such principal,
premium, if any, or interest shall have become due and payable will be repaid to
PGE and the holder of such Junior Subordinated Debenture will thereafter look
only to PGE for payment thereof. (Section 11.06)
GLOBAL DEBENTURES
If any Junior Subordinated Debentures of a series are represented by one or
more global securities, the applicable Prospectus Supplement will describe the
circumstances, if any, under which beneficial owners of interests in any such
global security may exchange such interests for Junior Subordinated Debentures
of such series and of like tenor and principal amount in any authorized form and
denomination. Principal of, premium, if any, and interest on such global
security will be payable in the manner described in the applicable Prospectus
Supplement. (Section 2.11)
The specific terms of the depository arrangement with respect to any
portion of a series of Junior Subordinated Debentures to be represented by a
global security will be described in the applicable Prospectus Supplement.
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AGREED TAX TREATMENT
The Junior Indenture provides that each holder of a Junior Subordinated
Debenture, each person that acquires a beneficial ownership interest in a Junior
Subordinated Debenture and PGE agree that for United States federal, state and
local tax purposes it is intended that such Junior Subordinated Debenture
constitutes indebtedness. (Section 13.12)
MODIFICATION OF THE JUNIOR INDENTURE
The Junior Indenture contains provisions permitting PGE and the Junior
Trustee, with the consent of the holders of not less than a majority in
principal amount of the Junior Subordinated Debentures of each series which are
affected by the modification, to modify the Junior Indenture or any supplemental
indenture affecting that series or the rights of the holders of that series of
Junior Subordinated Debentures; provided, that no such modification may, without
the consent of the holder of each outstanding Junior Subordinated Debenture then
outstanding and affected thereby, (i) extend the fixed maturity of any Junior
Subordinated Debentures of any series, or reduce the principal amount thereof,
or reduce the rate or extend the time of payment of any interest thereon, or
reduce any premium payable upon the redemption thereof, or (ii) reduce the
percentage of Junior Subordinated Debentures, the holders of which are required
to consent to any such supplemental indenture. (Section 9.02)
The Junior Indenture contains provisions permitting PGE and the Junior
Trustee to execute, without the consent of any holder of Junior Subordinated
Debentures, any supplemental indenture for certain other usual purposes
including creating any new series of Junior Subordinated Debentures. (Sections
2.01, 9.01, and 10.01)
EVENTS OF DEFAULT
The Junior Indenture provides that any one or more of the following
described events, which has occurred and is continuing, constitutes an "Event of
Default" with respect to each series of Junior Subordinated Debentures: (i)
failure for 10 days to pay interest on the Junior Subordinated Debentures of
that series when due; (ii) failure to pay principal of or premium, if any, on
the Junior Subordinated Debentures of that series when due whether at maturity,
upon redemption or otherwise, or to make any sinking fund payment with respect
to that series; (iii) failure to observe or perform any other covenant (other
than those specifically relating to another series) contained in the Junior
Indenture for 90 days after notice; or (iv) certain events of bankruptcy,
insolvency or reorganization of PGE. (Section 6.01)
The holders of a majority in aggregate outstanding principal amount of any
series of Junior Subordinated Debentures have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Junior Trustee for that series. (Section 6.06) The Junior Trustee or the holders
of not less than 25% in aggregate outstanding principal amount of any particular
series of Junior Subordinated Debentures may declare the principal due and
payable immediately upon an Event of Default with respect to such series, but
the holders of a majority in aggregate outstanding principal amount of such
series may annul such declaration and waive such Event of Default if it has been
cured and a sum sufficient to pay all matured installments of interest and
principal and any premium has been deposited with the Junior Trustee. (Section
6.01)
The holders of a majority in aggregate outstanding principal amount of all
series of Junior Subordinated Debentures affected thereby may, on behalf of the
holders of all Junior Subordinated Debentures of such series, waive any past
default, except a default in the payment of principal, premium, if any, or
interest. (Section 6.06) PGE is required to file annually with the Junior
Trustee a certificate as to whether or not PGE is in compliance with all the
conditions and covenants under the Junior Indenture. (Section 5.03)
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CONSOLIDATION, MERGER AND SALE
The Junior Indenture does not contain any covenant which restricts PGE's
ability to merge or consolidate with or into any other corporation, sell or
convey all or substantially all of its assets to any person, firm or corporation
or otherwise engage in restructuring transactions. (Section 10.01)
DEFEASANCE AND DISCHARGE
Under the terms of the Junior Indenture, PGE will be discharged from any
and all obligations in respect of the Junior Subordinated Debentures of any
series (except in each case for certain obligations to register the transfer or
exchange of Junior Subordinated Debentures, replace stolen, lost or mutilated
Junior Subordinated Debentures, maintain paying agencies and hold moneys for
payment in trust) if PGE deposits with the Junior Trustee, in trust, moneys or
Government Obligations, in an amount sufficient to pay all the principal of, and
interest on, the Junior Subordinated Debentures of such series on the dates such
payments are due in accordance with the terms of such Junior Subordinated
Debentures and, if, among other things, such Junior Subordinated Debentures are
neither due and payable nor to be called for redemption within one year, PGE
delivers to the Trustee an Opinion of Counsel to the effect that the holders of
Junior Subordinated Debentures of such series will not recognize income, gain or
loss for federal income tax purposes as a result of such deposit and discharge
and will be subject to federal income tax on the same amount and in the same
manner and at the same times as would have been the case if such deposit and
discharge had not occurred. In addition, if PGE delivers to the Trustee an
Opinion of Counsel (in lieu of the Opinion of Counsel referred to above) to the
effect that PGE has received from, or there has been published by, the United
States Internal Revenue Service a ruling, or there has been a change in tax law,
in either case to the effect that holders of the Junior Subordinated Debentures
will not recognize gain or loss for federal income tax purposes as a result of
such deposit, defeasance, and discharge and will be subject to federal income
tax on the same amount, in the same manner and at the same times as would have
been the case if such deposit, defeasance and discharge were not to occur, and
such deposit will not result in PGE, the Junior Trustee or the trust resulting
from the defeasance being deemed an "investment company" under the Investment
Company Act of 1940, as amended, then, PGE will be deemed to have paid and
discharged the entire indebtedness and holders of Junior Subordinated Debentures
of such series would be able to look only to the trust fund for payment of
principal, premium, if any, and interest on the Junior Subordinated Debentures
of such series. (Sections 11.01, 11.02, and 11.03)
GOVERNING LAW
The Junior Indenture and the Junior Subordinated Debentures will be
governed by and construed in accordance with, the laws of the State of New York.
(Section 13.04)
INFORMATION CONCERNING THE TRUSTEE
The Junior Trustee, prior to default, undertakes to perform only such
duties as are specifically set forth in the Junior Indenture and, after default,
shall exercise the same degree of care as a prudent individual would exercise in
the conduct of his or her own affairs. (Section 7.01) Subject to such provision,
the Junior Trustee is under no obligation to exercise any of the powers vested
in it by the Junior Indenture at the request of any holder of Junior
Subordinated Debentures, unless offered reasonable indemnity by such holder
against the costs, expenses and liabilities which might be incurred thereby.
(Section 7.02) The Junior Trustee is not required to expend or risk its own
funds or otherwise incur personal financial liability in the performance of its
duties if the Junior Trustee reasonably believes that repayment or adequate
indemnity is not reasonably assured to it. (Section 7.01)
MISCELLANEOUS
PGE will have the right at all times to assign any of its rights or
obligations under the Junior Indenture to Portland General or a direct or
indirect wholly owned subsidiary of Portland General or PGE; provided, that, in
the event of any such assignment, PGE will remain liable for all such
obligations. Subject to the foregoing, the Junior Indenture will be binding upon
and inure to the benefit of the parties thereto and their respective
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successors and assigns. The Junior Indenture provides that it may not otherwise
be assigned by the parties thereto. (Section 13.11)
FIRST MORTGAGE BONDS
First Mortgage Bonds are to be issued under the Indenture of Mortgage and
Deed of Trust, dated July 1, 1945 (the "Original Indenture"), made by PGE to The
Marine Midland Trust Company of New York (now Marine Midland Bank), as Trustee
("Trustee"), as supplemented by forty-five supplemental indentures (the
"Supplemental Indentures") heretofore executed by PGE and as to be supplemented
by one or more additional supplemental indentures to be dated the first day of
the month or months of issuance of each series of the First Mortgage Bonds, all
of which are collectively referred to as the "Mortgage".
The statements herein concerning the First Mortgage Bonds and the Mortgage
are an outline and do not purport to be complete. They make use of defined terms
and are qualified in their entirety by reference to the Mortgage, which is filed
as an exhibit to the Registration Statement of which this Prospectus forms a
part. References herein are to sections and articles of the Original Indenture
unless otherwise indicated. References to the New Supplementals are to the
drafts of the form of New Supplemental Indenture and the form of New MTN
Supplemental Indenture, respectively (collectively the "New Supplementals"),
which are filed as exhibits to the Registration Statement of which this
Prospectus forms a part.
A Prospectus Supplement will set forth any variation in the terms and
provisions of the First Mortgage Bonds from those described in this Prospectus.
FORM, DENOMINATIONS AND EXCHANGEABILITY
The First Mortgage Bonds are issuable in fully registered form in
denominations of $1,000, or such other amounts as may be authorized by PGE, or
any amount in excess thereof that is a multiple of $1,000. (New Supplementals
Section 1.01)
The First Mortgage Bonds will be transferable or exchangeable for First
Mortgage Bonds of other authorized denominations without any service charge at
the office of the Trustee in New York, N.Y. (Sections 2.06 and 2.10; New
Supplementals Section 1.01)
INTEREST AND PAYMENT
Reference is made to the Prospectus Supplement for the interest rate or
rates (which may be either fixed or variable) and/or the method of determination
of such rate or rates, of the First Mortgage Bonds, the date or dates on which
such interest is payable and the office or agency in the Borough of Manhattan,
City and State of New York at which interest will be payable.
SECURITY AND PRIORITY; BONDABLE PUBLIC UTILITY PROPERTY
In the opinion of PGE's counsel, the First Mortgage Bonds are to be
secured, equally with all other bonds heretofore or hereafter issued under the
Mortgage, by a direct first lien on PGE's interests in substantially all of its
property (except cash, securities, contracts and accounts receivable, motor
vehicles, materials and supplies, fuel, certain minerals and mineral rights and
certain other assets) now owned or hereafter acquired by PGE; subject, however,
to certain permitted encumbrances and to various exceptions, reservations,
reversions, easements and minor irregularities and deficiencies in title, which,
in the opinion of such counsel, will not interfere with their proper operation
and development. Until such time as the amendment discussed below becomes
effective, the lien of the Mortgage does not extend to properties located
outside of Oregon or contiguous states (principally PGE's interest in the
Colstrip units located in Montana).
The Mortgage permits the acquisition of property subject to prior liens.
However, no property subject to prior liens (other than liens securing the
unpaid purchase price of equipment or machinery) may be acquired (a) if at the
date of acquisition thereof the principal amount of indebtedness secured by such
prior liens, together with all other prior lien indebtedness of PGE, exceeds 10%
of the aggregate principal amount of bonds outstanding under the Mortgage, or
(b) if at the date of acquisition thereof the principal amount of
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indebtedness secured by such prior liens exceeds 60% of the cost of such
property to PGE, or (c) in certain cases of property used by another in a
business similar to that of PGE, unless the net earnings of such property meet
certain tests. (Section 8.11)
The term "bondable public utility property", as presently defined in the
Mortgage, means specified types of tangible property, including property then in
the process of construction, now owned or hereafter acquired by PGE and
subjected to the lien of the Original Indenture as the same has been or may be
in the future supplemented, modified or amended, which is located in the State
of Oregon or in any state contiguous thereto. (Section 1.10A) When the holders
of 75% in principal amount of bonds of all series then outstanding, including
the holders of not less than 60% in principal amount of the bonds then
outstanding of each series which is affected by such amendment, shall have
consented thereto, the term "bondable public utility property" will be amended
to mean the same types of tangible property now owned or hereafter acquired by
PGE and subjected to the lien of the Original Indenture as the same has been or
may be in the future supplemented, modified or amended, which is located in the
States of Oregon, Washington, California, Arizona, New Mexico, Idaho, Montana,
Wyoming, Utah, Nevada and Alaska. Each holder of a First Mortgage Bond, by his
acceptance of such First Mortgage Bond, shall thereby consent to such amendment;
no further vote or consent of holders of the First Mortgage Bonds shall be
required to permit such amendment to become effective; and in determining
whether the holders of not less than 75% of principal amount of bonds
outstanding at the time such amendment becomes effective have consented thereto,
the holders of all First Mortgage Bonds then outstanding shall be deemed to have
so consented. (New Supplementals Section 1.08 and 1.07) Similar provisions are
contained in all recent Supplemental Indentures under which new series of bonds
have been issued. Similar provisions amending the definition of "bondable public
utility property" to include all of the states named above (other than Alaska)
are included in certain prior Supplemental Indentures, as well as in the New
Supplementals.
PGE has covenanted, among other things, to not issue bonds under the
Mortgage in any manner other than in accordance with the Mortgage, to keep the
Mortgage a first priority lien on the Trust Estate and, except as permitted by
the Mortgage, to not suffer any act or thing whereby the Trust Estate might or
could be impaired. (Article EIGHT) Neither the Original Indenture nor the
Supplemental Indentures contain any provisions that afford holders of bonds
special protection in the event of a highly leveraged transaction by PGE,
however the bonds would continue to be entitled to the benefit of a first
priority lien on the Trust Estate as described above. Any special provisions
applicable to the First Mortgage Bonds will be set forth in the New
Supplementals and described in a Prospectus Supplement with respect to the First
Mortgage Bonds.
REDEMPTION AND PURCHASE OF BONDS
Reference is made to the Prospectus Supplement for the terms and conditions
under which the First Mortgage Bonds, or any series of the First Mortgage Bonds
if there shall be more than one series, may be redeemed or purchased at the
option of PGE. The First Mortgage Bonds will be redeemable at any time at 100%
of the principal amount thereof, together with interest accrued to the date of
redemption, by use of proceeds from the sale or disposition substantially as an
entirety of PGE's electric properties at Portland, Oregon. (Section 7.01)
Cash deposited under any provision of the Mortgage (with certain
exceptions) may be applied to the purchase of the First Mortgage Bonds or any
series of the First Mortgage Bonds if there shall be more than one series.
(Section 7.05)
SINKING FUND PROVISIONS
If a Prospectus Supplement with respect to all of the First Mortgage Bonds
offered as a single series, or to any separate series of the First Mortgage
Bonds if there shall be more than one series, states that there will be a
sinking fund for the benefit of such series, then so long as any First Mortgage
Bonds of such series shall be outstanding, PGE will be required to deposit with
the Trustee in each year (except the year of maturity) commencing with such year
as shall be set forth in such Prospectus Supplement, cash sufficient to redeem
on the first day of the month of issuance of the first of the First Mortgage
Bonds of such series, at the Special
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Redemption Price, First Mortgage Bonds equal to the percentage set forth in such
Prospectus Supplement of the aggregate principal amount of First Mortgage Bonds
of such series theretofore issued, after deducting from such aggregate principal
amount (but only if such deductions would aggregate $500,000 or more) the sum of
(1) the aggregate principal amount of First Mortgage Bonds of such series
theretofore redeemed out of the proceeds of property released from the lien of
the Mortgage and (2) First Mortgage Bonds of such series theretofore redeemed
and retired and made the basis for the withdrawal of such proceeds or certified
in lieu of the deposit of cash upon the release or taking of property. If so set
forth in such Prospectus Supplement, credit against such cash required to be
deposited may be taken at PGE's election in an amount equal to the principal
amount of First Mortgage Bonds of such series (i) delivered to the Trustee, (ii)
at any time theretofore redeemed at the option of PGE at the Regular Redemption
Price, and/or (iii) redeemed at the Special Redemption Price in anticipation of
any sinking fund payment at any time during the twelve months preceding the
payment date therefor. If so set forth in such Prospectus Supplement, PGE may
also satisfy all or any part of any sinking fund payment by certifying to the
Trustee available additions in an amount equal to 166 2/3% of the portion of the
sinking fund payment being so satisfied. If so set forth in such Prospectus
Supplement, cash so deposited to satisfy all or any part of any sinking fund
payment shall be used by the Trustee for the redemption of First Mortgage Bonds
of such series and PGE is required to pay all accrued interest and expenses with
respect to any First Mortgage Bonds of such series so redeemed. If sinking fund
payments for the First Mortgage Bonds of any series may be satisfied in whole or
in part by delivering to the Trustee First Mortgage Bonds of such series
acquired by PGE through purchase in the open market or otherwise, by redemption
and/or by certifying available additions, there will be no assurance that any of
the First Mortgage Bonds of any series will ever be called for redemption
through operation of the sinking fund therefor. In the event that less than all
of the First Mortgage Bonds of any series then outstanding were to be redeemed,
the selection would be made by the Trustee by lot in any manner deemed by the
Trustee to be proper. (Section 9.03)
REPLACEMENT FUND
PGE is required, on or before May 1 in each year, to pay to the Trustee an
amount in cash and/or deliver bonds of any series in principal amount equal to
the amount by which the minimum provision for depreciation upon bondable public
utility property (see below) for the preceding calendar year exceeds property
additions (as specified below) and, in the event of any deficiency in property
additions, the sum of certain other credits described below, which are optional.
Credit must be taken in an amount equal to the aggregate amount and/or cost of
property additions acquired or constructed by PGE from March 31, 1945 to the end
of the preceding calendar year, less (1) property additions theretofore made the
basis for action or credit under the Mortgage, (2) available additions
theretofore made the basis for action or credit under the Mortgage, and (3)
property additions theretofore credited against any previous replacement fund
requirement. PGE may at its election credit against the amount, if any, required
to be paid (i) any available bond retirements, (ii) certain expenditures for the
acquisition of or for improvements, additions, renewals or replacements to
bondable public utility property subject to a prior lien, and (iii) certain
retirements of prior lien indebtedness. To the extent that such credits at any
time exceed the replacement fund requirement, PGE may withdraw cash or bonds
held by the Trustee in the replacement fund or, under certain circumstances,
reinstate available bond retirements previously taken as a credit against any
replacement fund requirement. Any cash so deposited with the Trustee for the
replacement fund may, at the option of PGE, be applied to the redemption or
purchase of bonds. Redemptions of First Mortgage Bonds are at the then
applicable Regular Redemption Prices. (Section 4.04; New Supplementals Sections
1.04 and 1.03)
The amount of the mandatory credit for property additions has always
exceeded the replacement fund requirement and therefore PGE has not been
required (or permitted) to pay cash or deliver bonds to the Trustee. PGE expects
this to continue in the foreseeable future.
MINIMUM PROVISION FOR DEPRECIATION
The "minimum provision for depreciation" as applied to bondable public
utility property, as presently defined in the Mortgage, is, for any period
(other than periods of less than a calendar year), 15% of the gross
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operating revenues derived from such property during such period, after
deducting the cost of purchased power and lease or rental payments for
generating or transmission facilities, less all amounts expended for maintenance
of such property during such period. The "minimum provision for depreciation" as
applied to bondable public utility property not subject to a prior lien is
similarly determined on the basis of gross operating revenues from, and
maintenance expenditures upon, bondable public utility property not at the time
subject to a prior lien. (Section 1.10G)
When the holders of 75% in principal amount of bonds of all series then
outstanding, including the holders of not less than 60% in principal amount of
the bonds then outstanding of each series which is affected by such amendments,
shall have consented thereto:
(1) The definitions of minimum provision for depreciation will be
amended so that the minimum provision for depreciation for the period from
March 31, 1945 through December 31, 1966 as applied to bondable public
utility property, whether or not subject to lien, shall mean $35,023,487.50
(which is the amount of such minimum provision for such period under the
existing definitions of minimum provision for depreciation); the minimum
provision for depreciation as applied to bondable public utility property
for any calendar year subsequent to December 31, 1966, shall mean the
greater of (i) an amount equal to 2% of such property, as shown by PGE's
books as of January 1 of such year, with respect to which PGE was then
required to make appropriations to a reserve or reserves for depreciation
or obsolescence, or (ii) the amount actually appropriated in respect of
such property to such reserve or reserves for such calendar year, in either
case less an amount equal to the aggregate of (a) the amount of any
property additions which during such calendar year were made the basis for
a sinking fund credit, pursuant to the provisions of a sinking fund for
bonds of any series, and (b) 166 2/3% of the principal amount of bonds of
any series which were credited against any sinking fund payment due during
such calendar year for bonds of any series, or which were redeemed in
anticipation of, or out of moneys paid to the Trustee on account of any
sinking fund payment due during such calendar year for bonds of any series;
and the aggregate amount of the minimum provision for depreciation as
applied to bondable public utility property from March 31, 1945 to any date
shall mean $35,023,487.50 plus the sum of the minimum provision for
depreciation for each calendar year or fraction thereof between December
31, 1966 and such date, calculated as set forth immediately above.
(2) The amended definitions of minimum provision for depreciation as
applied to bondable public utility property set forth in (1) above will be
further amended so that (A) the property additions and bonds referred to in
(a) and (b) of (1) above will be limited to property additions and bonds
which, as a result of having been made the basis of a sinking fund credit
for bonds of any series or having been redeemed in anticipation of or out
of moneys paid to the Trustee on account of a sinking fund payment for
bonds of any series, become disqualified from being made the basis of the
authentication and delivery of bonds or any other further action or credit
under the Mortgage, either without time limit or only for as long as any
bonds of such series are outstanding, and (B) the amended definition of the
aggregate amount of the minimum provision for depreciation as applied to
bondable public utility property from March 31, 1945 to any date set forth
in (1) above will be further amended by adding thereto (1) the amount of
any property additions referred to in (a) of (1) above, as so amended,
which between December 31, 1966 and such date were made the basis for a
sinking fund credit pursuant to the provisions of a sinking fund for bonds
of any series, and thereafter and on or prior to such date become
"available additions" as a result of the fact that all bonds of such series
ceased to be outstanding and (ii) 166 2/3% of the principal amount of bonds
referred to in (b) of (1) above, as so amended, which between December 31,
1966 and such date were credited against any sinking fund payment, or were
redeemed in anticipation of, or out of moneys paid to the Trustee on
account of, any sinking fund payment, due between December 31, 1966 and
such date for bonds of any series, and thereafter and on or prior to such
date became "available bond retirements" as a result of the fact that all
bonds of such series ceased to be outstanding.
The "minimum provision for depreciation" as applied to bondable public utility
property not subject to a prior lien for any period subsequent to December 31,
1966 will be calculated on similar bases except that the property referred to in
clauses (i) and (ii) of (1) above will be bondable public utility property not
subject to prior lien. If the revised definitions set forth in (1) above or in
both (1) and (2) above should become
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effective it is expected that the minimum provisions for depreciation for
periods subsequent to December 31,1966 will be reduced from such minimum
provisions as computed in accordance with the existing definitions. Each holder
of a First Mortgage Bond, by his acceptance of such First Mortgage Bond, shall
thereby consent to both such amendments; no further vote or consent of holders
of the First Mortgage Bonds shall be required to permit either such amendment to
become effective; and in determining whether the holders of not less than 75% in
principal amount of bonds outstanding at the time either such amendment becomes
effective have consented thereto, the holder of all First Mortgage Bonds then
outstanding shall be deemed to have so consented. (New Supplementals Sections
1.08 and 1.07) Similar provisions amending the definitions of "minimum provision
for depreciation" set forth in (1) above have been included in all prior
Supplemental Indentures under which new series of bonds have been issued,
commencing with the Sixteenth Supplemental Indenture. Similar provisions
amending the definitions of "minimum provision for depreciation" set forth in
(2) have been included in all prior Supplemental Indentures under which new
series of bonds have been issued, commencing with the Twenty-fifth Supplemental
Indenture.
The amendment set forth in (1) above also contains provisions to the effect
that all bonds of any series and all property additions made the basis of a
credit upon any sinking fund payment for bonds of any series or redeemed by
operation of the sinking fund for bonds of any series (whether on any sinking
fund payment date or in anticipation of any sinking fund payment) shall not be
made the basis of the authentication and delivery of bonds or of any other
further action or credit under the Mortgage. The amendment set forth in (2)
above will eliminate such provisions. Certain presently outstanding series of
bonds are entitled to the benefits of similar provisions, presently effective,
prohibiting the use of bonds or property additions made the basis of a credit
upon or redeemed by operation of the sinking fund, if any, for bonds of that
series or certain previously issued series. None of such provisions limit the
use of such bonds or property additions in calculating the amended definitions
of minimum provision for depreciation referred to in either (1) or (2) above.
When the holders of 75% in principal amount of bonds of all series than
outstanding, including holders of not less than 60% of the bonds then
outstanding of each series which is affected by such amendment, shall have
consented thereto, the foregoing provisions prohibiting the use of bonds or
property additions so credited against (or redeemed out of the proceeds of) any
sinking fund payment for bonds of any series, or for bonds of certain series, as
the case may be, will remain effective only so long as any such bonds of such
series are outstanding. When all bonds of a series cease to be outstanding,
bonds and/or property additions so credited (or redeemed) by operation of the
sinking fund for bonds of such series equal to 1% per annum of the principal
amount of bonds of such series theretofore issued (after making certain
deductions) will remain unavailable for further action or credit under the
Mortgage, but the amount of such bonds and property additions in excess of such
1% per annum will become "available additions" or "available bond retirements",
as the case may be. (New Supplementals Sections 1.08 and 1.07) Similar
provisions with respect to the use of bonds and property additions so credited
against (or redeemed out of the proceeds of) sinking fund payments and the
amount of such bonds and property additions in excess of such 1% per annum
becoming "available additions" or "available bond retirements", as the case may
be, have been included in all prior Supplemental Indentures under which new
series of bonds have been issued, commencing with the Twenty-fifth Supplemental
Indenture.
ISSUANCE OF ADDITIONAL BONDS
The principal amount of bonds which may be issued under the Mortgage is
unlimited. Additional bonds may from time to time be issued on the basis of (1)
60% of available additions, (2) the deposit of cash or (3) available bond
retirements. With certain exceptions in the case of (3) above, the issuance of
bonds is subject to net earnings available for interest for 12 consecutive
months within the preceding 15 months being at least twice the annual interest
requirements on all bonds to be outstanding and prior lien indebtedness.
(Article FIVE) Cash deposited with the Trustee pursuant to (2) above may be (i)
withdrawn in an amount equal to 60% of available additions, (ii) withdrawn in an
amount equal to available bond retirements or (iii) applied to the purchase or
redemption of bonds. (Article SEVEN) At June 30, 1995, PGE had available
additions and available bond retirements sufficient to permit the issuance of
approximately $230,000,000 and $100,000,000, respectively, in principal amount
of additional bonds, including the First Mortgage Bonds. As of June 30, 1995,
net earnings available for interest would permit the issuance of up to
$750,000,000 principal
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amount of additional bonds, including the First Mortgage Bonds. This amount
would increase to the extent proceeds of the issuance of bonds are used to
retire presently outstanding first mortgage bonds.
Available additions are determined, at any time, by deducting from the
aggregate amount of property additions since March 31, 1945 (1) the greater of
the aggregate amount of retirements since March 31, 1945 or the aggregate amount
of the minimum provision for depreciation upon bondable public utility property
not subject to a prior lien since March 31, 1945, and (2) the aggregate of
available additions theretofore made the basis for action or credit under the
Mortgage. (Sections 1.10.I, 3.01 and 3.03.A) Property additions taken as a
credit against the replacement fund requirement are not deemed to be "made the
basis for action or credit". (Section 1.10.H)
DIVIDEND RESTRICTIONS
So long as any of the First Mortgage Bonds, or bonds of any other series
heretofore authenticated under the Mortgage, are outstanding, dividends (other
than dividends in capital stock of PGE) may not be declared or paid or other
distributions made on Common Stock of PGE, nor may any shares of capital stock
of PGE be purchased (other than in exchange for or from the proceeds of other
shares of capital stock of PGE), if the aggregate amount so distributed or
expended after December 31, 1944 would exceed the aggregate amount of PGE's net
income, as adjusted, available for dividends on its Common Stock accumulated
after December 31, 1944. (Section 4.06; New Supplementals Sections 1.04 and
1.03) At June 30, 1995, $531,000,000 of accumulated net income was available for
payment of dividends under the foregoing provision.
RELEASE AND SUBSTITUTION OF PROPERTY
Property subject to the lien of the Mortgage may (subject to certain
exceptions and limitations) be released only upon the substitution of cash,
purchase money obligations or certain other property or upon the basis of
available additions or available bond retirements. (Article SIX)
MODIFICATION OF THE MORTGAGE
The rights of the bondholders may be modified with the consent of the
holders of 75% of the bonds, including the consent of the holders of 60% of the
bonds of each series the rights of the holders of which are affected by such
modification. In general, no modification of the terms of principal and
interest, and no modification affecting the lien of the Mortgage or reducing the
percentage required for modification, is effective against any bondholder
without his consent. (Section 17.02) The Mortgage may also be modified in
various other respects not inconsistent with the Mortgage and which do not
adversely affect the interests of the holders of bonds. (Section 17.01)
DEFAULTS AND NOTICE THEREOF
Defaults are defined as being: default in payment of principal; default for
60 days in payment of interest or of any sinking fund or replacement or
improvement fund obligation; certain events of bankruptcy, insolvency or
reorganization; or default continuing for 60 days after notice in performance or
observance of other covenants, agreements or conditions. (Section 11.01) The
Trustee may withhold notice of defaults (except in payment of principal,
interest or any sinking or purchase fund installment) if it in good faith
determines it to be in the interest of the bondholders. (Section 14.09) The
holders of 25% of the bonds may declare the principal and accrued interest due
on default, but the holders of a majority may annul such declaration if such
default has been cured. (Section 11.01) No holder of bonds may enforce the lien
of the Mortgage without giving the Trustee written notice of a default and
unless the holders of 25% of the bonds have requested the Trustee to act and
offered the Trustee indemnity against expenses and the Trustee has failed to act
within 60 days. (Section 11.21) The holders of a majority of the bonds may
direct the time, method and place of conducting any proceedings for any remedy
available to the Trustee or exercising any trust or power conferred upon the
Trustee, but the Trustee is not required to incur personal liability if there is
reasonable ground for believing that it will not be sufficiently indemnified for
any expenditures in connection therewith. (Section 11.20)
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EVIDENCE TO BE FURNISHED TO THE TRUSTEE
Compliance with Mortgage provisions is evidenced by written statements of
officers of PGE or persons selected and paid by PGE. In certain cases, opinions
of counsel and certificates of an engineer, accountant, appraiser or other
expert (who in some instances must be independent), must be furnished. Various
certificates and other papers are required to be filed annually and in certain
events, including an annual certificate with respect to compliance with the
terms of the Mortgage and absence of defaults.
SENIOR UNSECURED DEBT SECURITIES
The Senior Unsecured Debt Securities may be issued from time to time in one
or more series under an indenture to be dated as of the first day of the month
of its execution ("Senior Indenture"), between PGE and a trustee to be selected
by PGE (the "Senior Trustee"). A copy of the Senior Indenture will be filed as
an exhibit to the Registration Statement of which this Prospectus is a part on
or before execution thereof by PGE and the Senior Trustee. The following
description of the general provisions of the Senior Indenture is not complete
and is subject in all respects to the provisions of, and is qualified in its
entirety by reference to, the Senior Indenture in the form in which it is filed
as an exhibit to the Registration Statement of which this Prospectus is a part.
Reference is hereby made to the Senior Indenture as so filed for a full
description of such provisions, including the definitions of certain terms used
and for other information regarding the Senior Unsecured Debt Securities. The
particular terms of the Senior Unsecured Debt Securities offered by any
Prospectus Supplement and the extent, if any, to which the general provisions
described herein may apply to such Senior Unsecured Debt Securities will be
described in the Prospectus Supplement relating to such Senior Unsecured Debt
Securities.
GENERAL
The aggregate principal amount of the Senior Unsecured Debt Securities
issuable under the Senior Indenture will be unlimited. The Senior Unsecured Debt
Securities may be issued from time to time in one or more series pursuant to an
indenture supplemental to the Senior Indenture. The specific terms for each
particular series of the Senior Unsecured Debt Securities, including (i) the
title of such series; (ii) the aggregate principal amount of such series; (iii)
the date or dates on which the principal of such series is payable; (iv) the
rate or rates, if any, at which such series will bear interest or the method of
determination of such rate or rates, the date or dates from which such interest
will accrue, the date or dates on which such interest will be payable or the
manner of determination of such interest payment dates and the record dates for
the interest payable on such interest payment dates; (v) the place where the
principal of, premium, if any, and interest on such series will be payable; (vi)
the period or periods, if any, within which, the price or prices at which and
the terms and conditions upon which such series may be redeemed, in whole or in
part, at the option of PGE; (vii) the terms and conditions, if any, on which
such series may be discharged prior to redemption or maturity; (viii) the
obligation, if any, of PGE to redeem or purchase such series pursuant to any
sinking fund or analogous provisions or at the option of a holder thereof, and
the terms and conditions upon which such series shall be redeemed or purchased,
in whole or in part, pursuant to such obligations; (ix) the denominations in
which such series shall be issuable; (x) any other terms of such series; and
(xi) whether the Senior Unsecured Debt Securities of such series will be issued
as a global security, and in such case, the circumstances, if any, under which
beneficial owners of interests in any such global security may exchange such
interests for Senior Unsecured Debt Securities of such series, the manner for
payment of principal of and any premium and interest on such global security,
the identity of the depository, and the terms of the depository arrangement,
will be set forth in the Prospectus Supplement relating thereto which will
accompany this Prospectus.
The Senior Unsecured Debt Securities will not be secured by any lien, but
will rank on a parity with all other unsecured and unsubordinated indebtedness
of PGE.
The Senior Unsecured Debt Securities or any series thereof may be issued as
"original issue discount securities" to be sold at a discount below their
principal amount. Special federal income tax and other considerations applicable
thereto will be described in the Prospectus Supplement relating thereto.
15
17
THE SENIOR INDENTURE
The Senior Indenture will contain provisions, which will be described in
the Prospectus Supplement relating to the Senior Unsecured Debt Securities, with
regard to (i) PGE's consolidating or merging with or into any other corporation
or selling or conveying its property as an entirety or substantially as an
entirety to another corporation, (ii) PGE's granting to any holder of its
outstanding unsecured debt for money borrowed a mortgage, lien, encumbrance or
security interest in its property, (iii) the terms and conditions with regard to
amending or modifying the Senior Indenture; (iv) Events of Default with respect
to Senior Unsecured Debt Securities of any series; and (v) the duties and
responsibilities of the Senior Trustee.
The Senior Indenture will not contain any provisions that afford protection
to the holders of Senior Unsecured Debt Securities in the event of a highly
leveraged transaction involving PGE.
PGE will have the right at all times to assign any of its rights or
obligations under the Senior Indenture to Portland General or a direct or
indirect wholly owned subsidiary of Portland General or PGE; provided, that, in
the event of any such assignment, PGE will remain liable for all such
obligations. Subject to the foregoing, the Senior Indenture will be binding upon
and inure to the benefit of the parties thereto and their respective successors
and assigns, and may not otherwise be assigned.
The Senior Indenture and the Senior Unsecured Debt Securities will be
governed by and construed in accordance with, the laws of the State of New York.
PLAN OF DISTRIBUTION
PGE may offer the Debt Securities ("Offered Securities") in one or more of
the following ways from time to time: (i) through underwriters or dealers; (ii)
directly to a limited number of purchasers or to a single purchaser; (iii)
through agents or (iv) through a combination of any such methods. A Prospectus
Supplement with respect to each series of the Offered Securities will set forth
the terms of the offering of the Offered Securities and the proceeds to PGE from
the sale thereof, the name or names of any underwriters or agents, any
underwriting discounts and other items constituting underwriters' compensation,
any initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers. Any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers may be changed
from time to time.
If underwriters are utilized, the Offered Securities being sold to them
will be acquired by the underwriters for their own account and may be resold
from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The Offered Securities may be offered to the public either
through underwriting syndicates represented by one or more managing
underwriters, or directly by one or more firms acting as underwriters. The
underwriter or underwriters with respect to the Offered Securities being offered
will be named in a Prospectus Supplement relating to such offering and, if an
underwriting syndicate is used, the managing underwriter or underwriters will be
set forth on the cover page of such Prospectus Supplement. Any underwriting
agreement will provide that the obligations of the underwriters are subject to
certain conditions precedent, and that the underwriters will be obligated to
purchase all of the Offered Securities to which such underwriting agreement
relates if any are purchased. Any underwriter utilized may be entitled to
indemnification from PGE against certain civil liabilities, including
liabilities under the Securities Act of 1933.
The Offered Securities may be sold directly by PGE or through agents
designated by PGE from time to time. Any agent involved in the offer or sale of
the Offered Securities or any series thereof in respect of which this Prospectus
is delivered will be named, and any commissions payable by PGE to such agent
will be set forth, in a Prospectus Supplement. Agents who participate in the
distribution of the Offered Securities may be entitled to indemnification by PGE
against certain liabilities, including liabilities under the Securities Act of
1933.
If so indicated in the Prospectus Supplement, PGE will authorize
underwriters or other persons acting as agents to solicit offers by certain
institutions to purchase the Offered Securities from PGE pursuant to contracts
providing for payment and delivery on a future date. Institutions with which
such contracts may be
16
18
made include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions and others, but in
all cases will be subject to the approval of PGE. The obligations of any
purchaser under any such contract will be subject to the condition that the
purchase of the Offered Securities shall not at the time of delivery be
prohibited under the laws of the jurisdiction to which such purchaser is
subject. The underwriters and such agents will not have any responsibility in
respect of the validity or performance of such contracts.
Each series of Offered Securities will be a new issue of securities and
will have no established market. Any underwriters to whom Offered Securities are
sold by PGE for public offering and sale may make a market in such Offered
Securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. The Offered Securities
may or may not be listed on a national securities exchange. No assurance can be
given as to the liquidity of or the trading markets for any of the Offered
Securities.
LEGAL OPINIONS
Legal matters in connection with the issuance and sale of the Offered
Securities are being passed upon for PGE by Steven F. McCarrel, Deputy General
Counsel of Portland General and Assistant Secretary of PGE, and for the
underwriters or agents by Morgan, Lewis & Bockius, 101 Park Avenue, New York, NY
10178. As to all matters governed by Oregon law, Morgan, Lewis & Bockius will
rely upon the opinion of Mr. McCarrel.
EXPERTS
PGE's consolidated financial statements and schedules included in its
Annual Report on Form 10-K for the year ended December 31, 1994, which are
incorporated by reference in this Prospectus, have been audited by Arthur
Andersen LLP, independent public accountants, as indicated in their reports with
respect thereto, and are incorporated herein by reference in reliance upon the
authority of said firm as experts in accounting and auditing in giving said
reports.
17
19
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Estimated expenses in connection with this registration, all of which are
borne by the Company, are as follows:
Securities and Exchange Commission registration fee............. $ 86,207.50
Printing and engraving expenses................................. 50,000.00*
Fees and expenses of independent public accountants............. 20,000.00*
Listing fees (if any)........................................... 30,000.00*
Rating Agency fees.............................................. 25,000.00*
Trustee fees.................................................... 50,000.00*
Blue Sky fees................................................... 25,000.00*
Miscellaneous expenses.......................................... 50,000.50*
-----------
Total................................................. $336,208.00*
===========
---------------
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 10 of the Bylaws of PGE provides as follows:
"To the full extent permitted by law, the corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any
civil, criminal, administrative or investigative action, suit or proceeding
(whether brought by or in the right of the corporation or otherwise) by
reason of the fact that such person is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a
director or officer of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees and
attorneys' fees on appeal), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such director or officer in connection
with such action, suit or proceeding; and the Board may, at any time,
approve indemnification of any other person which the corporation has the
power to indemnify under the law. The indemnification provided by this
Article shall not be deemed exclusive of any other rights to which a person
may be entitled as a matter of law or by contract. The corporation shall
purchase and maintain indemnification insurance for any person to the
extent not prohibited by applicable law. It is the intention of this Bylaw
to recognize the responsibility inherent in being a director or officer of
Portland General Electric Company and by means of this Bylaw to protect and
indemnify the individual who has held, is holding or will hold such
positions or any of them against any personal liability for their actions
unless such actions involve individual dishonesty."
Article V of the Articles of Incorporation of PGE provides as follows:
"To the fullest extent permitted by law, no director of this
corporation shall be personally liable to the corporation or its
shareholders for monetary damages for conduct as a director. No amendment
or repeal of this provision shall adversely affect any right or protection
of a director existing at the time of such amendment or repeal. No change
in the law shall reduce or eliminate the rights and protections applicable
at the time this provision shall become effective unless the change in law
shall specifically require such reduction or elimination."
PGE has procured Directors and Officers liability insurance for
wrongful acts. This is an indemnity policy for the corporation to protect
it against liability assumed or incurred under the above indemnification
provisions, including defense provisions, on behalf of the directors and
officers. The directors and officers are thus indemnified against loss
arising from any civil claim or claims by reason of any wrongful act done
or alleged to have been done while acting in their respective capacities as
directors or officers. The policy excludes claims brought about or
contributed to by dishonest, fraudulent, criminal or malicious acts or
omissions by directors or officers.
II-1
20
The directors and officers of PGE are covered by insurance policies
indemnifying against certain liabilities, including certain liabilities arising
under the Securities Act of 1933, as amended (the "Securities Act"), which might
be incurred by them in such capacities and against which they cannot be
indemnified by PGE.
Any agents, dealers or underwriters who execute any of the agreements filed
as Exhibit 1 to this registration statement will agree to indemnify PGE's
directors and officers who signed the registration statement against certain
liabilities which might arise under the Securities Act with respect to
information furnished to PGE by or on behalf of any such indemnifying party.
The Oregon Business Corporation Act ("Act") authorizes indemnification of
directors, officers, employees, and agents of Oregon corporations. The Act
requires indemnification of reasonable expenses of a director who was wholly
successful, on the merits or otherwise, in defense of any proceeding in which
the director was a party because of being a director, unless such
indemnification is limited by the article of incorporation. The Registrant's
articles do not contain such limitation.
ITEM 16. LIST OF EXHIBITS.
(See page II-6).
ITEM 17. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrants pursuant to the foregoing provisions, or otherwise, the registrants
have been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrants in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrants will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
The undersigned registrant hereby undertakes: (1) to file, during any
period in which offers or sales are being made, a post-effective amendment to
this registration statement (i) to include any prospectus required by section
10(a)(3) of the Securities Act of 1933, (ii) to reflect in the prospectus any
facts or events arising after the effective date of the registration statement
(or most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement, (iii) to include any material information with respect
to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement, provided, however, that clauses (i) and (ii) above do not apply if
the information required to be included in a post-effective amendment by those
clauses is contained in periodic reports filed by the Company pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in this registration statement; (2) that, for the purpose of
determining any liability under the Securities Act of 1933, each such
post-effective amendment and each filing of the Company's annual report pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof; and (3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
II-2
21
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of a
registration statement in reliance upon Rule 430A and contained in the form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of the
registration statement as of the time it was declared effective.
(2) For the purposes of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-3
22
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Portland
General Electric Company certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused
this Registration Statement or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Portland, and State of
Oregon, on the 11th day of September, 1995.
PORTLAND GENERAL ELECTRIC COMPANY
(Registrant)
/s/ KEN L. HARRISON
---------------------------------
(Ken L. Harrison, Chairman of the
Board and Chief Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement or amendment has been signed below by the following
persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
PRINCIPAL EXECUTIVE OFFICER:
/s/ KEN L. HARRISON Chairman of the Board September 11, 1995
-------------------------------------------- and Chief Executive Officer
(Ken L. Harrison)
PRINCIPAL FINANCIAL OFFICER AND
PRINCIPAL ACCOUNTING OFFICER:
/s/ JOSEPH M. HIRKO Vice President, Finance, Chief September 11, 1995
-------------------------------------------- Financial Officer, Chief Accounting
(Joseph M. Hirko) Officer and Treasurer
DIRECTORS:
*GWYNETH E. GAMBLE BOOTH
*PETER J. BRIX
*CAROLYN S. CHAMBERS
*JOHN W. CREIGHTON, JR.
*KEN L. HARRISON
*JERRY E. HUDSON Directors
WARREN McCAIN
*JEROME J. MEYER
*RANDOLPH L. MILLER
*RICHARD G. REITEN
*BRUCE G. WILLISON
* Signed on behalf of each of these persons.
By /s/ STEVEN N. ELLIOTT September 11, 1995
-----------------------------------------
(Attorney-in-Fact)
II-4
23
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement of our report dated February 7,
1995, except with respect to the matter discussed in Note 15A, as to which the
date is March 29, 1995, included in the Portland General Electric Company Annual
Report on Form 10-K for the year ended December 31, 1994 and to all references
to our firm included in this Registration Statement.
ARTHUR ANDERSEN LLP
Portland, Oregon,
September 8, 1995
------------------------
CONSENT OF COUNSEL
The consent of Steven F. McCarrel is contained in his opinion filed
herewith.
II-5
24
PORTLAND GENERAL ELECTRIC COMPANY
EXHIBIT INDEX
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
--------- ----------- ----------
(1)(a) Form of Underwriting Agreement relating to Debt Securities........
(b) Form of Distribution Agreement relating to First Mortgage Bonds...
(4)(a)** Articles of Incorporation of Portland General Electric Company
(Registration No. 2-85001, Exhibit 4).............................
(b) Form of Indenture for Junior Subordinated Debentures..............
(c) Form of Supplemental Indenture for Junior Subordinated Debentures,
including form of Junior Subordinated Debentures..................
(d)* Form of Indenture for Senior Unsecured Debt Securities............
(e)* Form of Supplemental Indenture for Senior Unsecured Debt
Securities, including form of Senior Unsecured Debt Securities....
(f)** Indenture of Mortgage and Deed of Trust dated July 1, 1945: First
Supplemental Indenture dated November 1, 1947; Second Supplemental
Indenture dated November 1, 1948; Third Supplemental Indenture
dated May 1, 1952; Fourth Supplemental Indenture dated November 1,
1953; Fifth Supplemental Indenture dated November 1, 1954; Sixth
Supplemental Indenture dated September 1, 1956; Seventh
Supplemental Indenture dated June 1, 1957; Eighth Supplemental
Indenture dated December 1, 1957; Ninth Supplemental Indenture
dated June 1, 1960; Tenth Supplemental Indenture dated November 1,
1961; Eleventh Supplemental Indenture dated February 1, 1963;
Twelfth Supplemental Indenture dated June 1, 1963; Thirteenth
Supplemental Indenture dated April 1, 1964; Fourteenth
Supplemental Indenture dated March 1, 1965 (Form 8, Amendment No.
1, dated June 14, 1965)...........................................
** Fifteenth Supplemental Indenture, dated June 1, 1966; Sixteenth
Supplemental Indenture, dated October 1, 1967; Seventeenth
Supplemental Indenture, dated April 1, 1970; Eighteenth
Supplemental Indenture, dated November 1, 1970; Nineteenth
Supplemental Indenture, dated November 1, 1971; Twentieth
Supplemental Indenture, dated November 1, 1972; Twenty-first
Supplemental Indenture, dated April 1, 1973; Twenty-second
Supplemental Indenture, dated October 1, 1973; Twenty-third
Supplemental Indenture, dated December 1, 1974; Twenty-fourth
Supplemental Indenture, dated April 1, 1975; Twenty-fifth
Supplemental Indenture, dated June 1, 1975; Twenty-sixth
Supplemental Indenture, dated December 1, 1975; Twenty-seventh
Supplemental Indenture, dated April 1, 1976; Twenty-eighth
Supplemental Indenture, dated September 1, 1976; Twenty-ninth
Supplemental Indenture, dated June 1, 1977 (Registration No.
2-61199, Exhibit 2.d-1)...........................................
** Thirtieth Supplemental Indenture, dated October 1, 1978;
Thirty-first Supplemental Indenture, dated November 1, 1978
(Registration No. 2-63516, Exhibit 2.d-3).........................
** Thirty-second Supplemental Indenture, dated February 1, 1980
(Registration No. 2-68415, Exhibit 2.d-4)
** Thirty-third Supplemental Indenture, dated August 1, 1980
(Registration No. 2-68415, Exhibit 2.d-5).........................
II-6
25
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
--------- ----------- ------------
** Thirty-fourth Supplemental Indenture, dated March 23, 1982;
Thirty-fifth Supplemental Indenture dated March 23, 1982 (Form
10-Q for the quarter ended March, 31, 1982, Exhibit 4)............
** Thirty-sixth Supplemental Indenture, dated September 21, 1982
(Form 8-A, dated October 28, 1982)................................
** Thirty-seventh Supplemental Indenture, dated November 15, 1984
(Form 8-K, November 19, 1984).....................................
** Thirty-eighth Supplemental Indenture, dated June 1, 1985 (Form
10-Q for the quarter ended June 30, 1985, Exhibit 4)..............
** Thirty-ninth Supplemental Indenture, dated March 1, 1986 (Form
10-K for the fiscal year ended December 31, 1985, Exhibit 4)......
** Fortieth Supplemental Indenture, dated October 1, 1990 (Form 10-K
for fiscal year ended December 31, 1990, Exhibit 4)...............
** Forty-first Supplemental Indenture, dated December 1, 1991 (Form
10-K for fiscal year ended December 31, 1991, Exhibit 4)..........
** Forty-second Supplemental Indenture, dated April 1, 1993 (Form
10-Q for the quarter ended March 31, 1993, Exhibit 4).............
** Forty-third Supplemental Indenture, dated July 1, 1993 (Form 10-Q
for the quarter ended September 30, 1993, Exhibit 4)..............
** Forty-fourth Supplemental Indenture, dated August 1, 1994 (Form
10-Q for the quarter ended September 30, 1994, Exhibit 4).........
** Forty-fifth Supplemental Indenture, dated May 1, 1995 (Form 10-Q
for the quarter ended June 30, 1995, Exhibit 4)...................
(g) Form of New Supplemental Indenture, including form of First
Mortgage Bond.....................................................
(h) Form of New MTN Supplemental Indenture, including form of MTN.....
(5) Opinion of Steven F. McCarrel.....................................
(12) Statements re computation of ratios...............................
(23) Consents of Experts and Counsel (See Page II-5)
(24) Power of Attorney.................................................
(25)(a) Statement of Eligibility of Trustee with regard to First Mortgage
Bonds (Form T-1)..................................................
(b)* Statement of Eligibility of Trustee with regard to Senior
Unsecured Debt Securities (Form T-1)..............................
(c) Statement of Eligibility of Trustee with regard to Junior
Subordinated Debentures (Form T-1)................................
---------------
* To be filed by amendment.
** Incorporated by reference as indicated.
II-7
1
EXHIBIT (1)(a)
Form of Underwriting Agreement
Portland General Electric Company
[__________________________]
UNDERWRITING AGREEMENT
[_____]
[Insert names of Representatives]
As representatives of the several
Underwriters named in Schedule I hereto
c/o
Ladies and Gentlemen:
The undersigned, Portland General Electric Company, an Oregon
corporation (the "Company"), hereby confirms its agreement with the several
Underwriters (as defined in Section I hereof), for whom you are acting as
representatives (in such capacity, you shall hereinafter be referred to as the
"Representatives"), as follows:
1. Definitions of Certain Terms. Except as may
otherwise be defined herein, capitalized terms used herein shall have the
following meanings:
(a) "Act" shall mean the Securities Act of 1933, as
amended.
(b) "Articles" shall mean the Articles of Incorporation
of the Company, as amended.
(c) "Business Day" shall mean any day on which the NYSE
and banks in the City of New York are open.
(d) "Commission" shall mean the Securities and Exchange
Commission.
2
(e) "Counsel for the Company" shall mean Steven F.
McCarrel, Deputy General Counsel of the Company.
(f) "Counsel for the Underwriters" shall mean Morgan,
Lewis & Bockius.
(g) "Debt Securities" shall mean the $250,000,000 in
aggregate principal amount of debt securities of the Company
registered under the Registration Statement.
(h) "Effective Date" shall mean, at any time, the later
of (i) the date that the Registration Statement or any post-effective
amendment thereto was or is declared effective by the Commission under
the Act and (ii) the date that the Company's Annual Report on Form
10-K for its most recently completed fiscal year is filed with the
Commission under the Exchange Act, in each case at such time.
(i) "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
(j) "Incorporated Documents" shall mean the documents
filed by the Company with the Commission under the Exchange Act that
are, or are deemed to be, incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the Act.
(k) "Indenture" shall mean the Indenture dated as of
[____] between the Company and [___________], as trustee (the
"Trustee").
(l) "NYSE" shall mean the New York Stock Exchange.
(m) "Offered Debt Securities" shall mean the
[________________] due [_____] of the Company issued under the
Indenture.
(n) "Prospectus" shall mean the prospectus relating to
the Debt Securities included in the Registration Statement, as
supplemented by a prospectus supplement specifying the terms of the
Offered Debt Securities and the plan of distribution thereof (the
"Prospectus Supplement"), as first filed pursuant to Rule 424(b) of
the Regulations under the Act, including the Incorporated Documents.
(o) "Registration Statement" shall mean the registration
statement on Form S-3 (No. 33-[_____]) filed with the Commission for
the registration under the Act of the Debt Securities, as amended and
supplemented to the date of this Agreement, and shall be deemed to
include the Incorporated Documents.
(p) "Regulations" shall mean the applicable published
rules and regulations of the Commission under the Act, the Exchange
Act or the Trust Indenture Act, as the case way be.
- 2 -
3
(q) "Trust Indenture Act" shall mean the Trust Indenture
Act of 1939, as amended.
(r) "Underwriters" shall mean the several firms or
corporations named in Schedule I hereto and any underwriter
substituted as provided in Section 4(c) hereof and "Underwriter" shall
mean one of the Underwriters.
(s) "amend," "amendment," "amended," "supplement" or
"supplemented" with respect to the Registration Statement or the
Prospectus shall mean amendments or supplements to the Registration
Statement or the Prospectus, as the case may be, and incorporated
Documents filed after the date of this Agreement and prior to the
completion of the distribution of any series of the Debt Securities to
which this Underwriting Agreement is applicable.
2. Purchase and Sale. Upon the basis of the representations and
warranties herein contained, and subject to the terms and conditions set forth
in this Agreement, the Company agrees to sell to each Underwriter named in
Schedule I hereto, severally and not jointly, and such Underwriter agrees,
severally and not jointly, to purchase from the Company, the principal amount
of Offered Debt Securities set forth opposite such Underwriter's name in
Schedule I hereto at a purchase price of [____]% of the principal amount
thereof.
The Company has been advised by the Representatives that the
Underwriters propose to (i) make a public offering of the Offered Debt
Securities as soon as the Underwriters deem advisable after this Agreement has
been executed and delivered and (ii) initially offer the Offered Debt
Securities to the public at the public offering price set forth in the
Prospectus.
3. Representations and Warranties of Company.
(a) The Company represents and warrants to, and agrees with, the
several Underwriters as follows:
(i) Registration Statement; Prospectus; Incorporated
Documents. (1) The Registration Statement, at the Effective Date, and
each preliminary prospectus relating to the Offered Debt Securities,
if any, at the time it was filed with the Commission, complied and the
Prospectus, at the time it is filed with the Commission, will comply,
except in each case for Incorporated Documents, in all material
respects with the applicable requirements of the Act and the Trust
Indenture Act and the respective Regulations thereunder; (2) the
Registration Statement, at the Effective Date, did not include an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; (3) the Prospectus, at the time it
is filed with the Commission, will not and each preliminary prospectus
relating to the Offered Debt Securities, if any, at the time it was
filed with the Commission, did not include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; and (4) each Incorporated
- 3 -
4
Document, at the time originally filed with the Commission pursuant to
the Exchange Act, complied and will comply, as the case may be, in all
material respects with the applicable requirements of the Exchange Act
and the Regulations thereunder; provided, however, that the Company
makes no representation or warranty as to (A) such part of the
Registration Statement that constitutes the Statement of Eligibility
on Form T-1 under the Trust Indenture Act of the Trustee or (B) the
information contained in or omitted from the Registration Statement or
the Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by the Representatives
specifically for use in connection with the preparation of the
Registration Statement or the Prospectus.
(ii) Offered Debt Securities. The Offered Debt Securities
have been duly authorized, executed and authenticated and, when paid
for in accordance herewith, will constitute valid and legally binding
obligations of the Company; and the execution and delivery of, and
compliance with this Agreement, the Offered Debt Securities and the
Indenture will not conflict with or constitute a breach of or default
under the Articles of Incorporation or Bylaws of the Company, any
indenture, mortgage, deed of trust or other agreement or instrument by
which the Company is bound, or any law, administrative regulation or
court decree.
(iii) Due Incorporation; Good Standing. The Company and each
of its active subsidiaries have been duly incorporated and are validly
existing as corporations in good standing under the laws of the
respective jurisdictions of their incorporation, with power and
authority (corporate and other) to own their respective properties and
conduct their respective businesses as described in the Prospectus;
and each of the Company and such subsidiaries is duly qualified to do
business as a foreign corporation in each jurisdiction in which the
character of the properties owned or leased by it or, to the Company's
knowledge, the nature of the business it transacts makes such
qualification necessary.
(iv) Permits, etc. The Company and each of its active
subsidiaries have valid and sufficient grants, franchises,
miscellaneous permits and easements, free from unduly burdensome
restrictions, adequate for the conduct of their respective businesses
in the territories in which they are now conducting such businesses
and the ownership of the respective properties now owned by them and,
except as otherwise set forth in the Prospectus, there are no legal or
governmental proceedings pending or, to the Company's knowledge,
threatened which might result in a material modification, suspension
or revocation thereof.
(v) Title. Except as described in the Prospectus, the Company
has good and marketable title in fee to all the real property,
including fixtures, and satisfactory title to all other property and
assets described in the Prospectus as owned by it, free and clear of
all liens, charges, encumbrances, and restrictions except such as are
permitted by the Indenture.
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5
(vi) Accountants. The accountants who certified the
financial statements included or incorporated by reference in the
Prospectus are independent public accountants within the meaning of
the Act and the Regulations.
(vii) Financial Statements. The financial statements and
any supporting schedules of the Company and its consolidated
subsidiaries included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the consolidated financial
position of the Company and its consolidated subsidiaries as of the
dates indicated and the consolidated results of their operations for
the periods specified; and, except as stated therein, said financial
statements have been prepared in conformity with generally accepted
accounting principles in the United States applied on a consistent
basis; and the supporting schedules included in the Registration
Statement present fairly the information required to be stated
therein.
(viii) Regulatory Approvals. The Public Utility Commission
of Oregon has authorized the issuance and sale of the Offered Debt
Securities; and no other consent, approval, authorization, order or
decree of any court or governmental agency or body (including the
Federal Energy Regulatory Commission) is required for the consummation
by the Company of the transactions contemplated by this Agreement,
except such as may be required under the Act, the Trust Indenture Act,
the respective Regulations thereunder and Blue Sky laws.
(ix) Agreement. This Agreement has been duly authorized,
executed and delivered by the Company and is a valid and legally
binding agreement of the Company enforceable in accordance with its
terms, except as limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization and other similar laws relating to or
affecting creditors' rights generally and general equitable principles
(whether considered in a proceeding in equity or at law).
(x) Indenture. The Indenture has been duly authorized,
executed and delivered by the Company, has been duly qualified under
the Trust Indenture Act and is a valid and legally binding agreement
of the Company enforceable in accordance with its terms, except as
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization and other similar laws relating to or affecting
creditors' rights generally and general equitable principles (whether
considered in a proceeding in equity or at law).
(xi) Capital Stock. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Registration
Statement and the Prospectus except for changes referred to therein or
contemplated thereby).
(xii) Public Utility Holding Company Act. In the opinion of
counsel for the Company, the Company is a "subsidiary company" of a
"holding company" within the meaning of the Public Utility Holding
Company Act of 1935, as amended (the
- 5 -
6
"PUHCA"), which holding company is exempt from application of all
provisions of the PUHCA except Section 9(a)(2) thereof.
(b) Additional Certifications. Any certificate signed by any
officer of the Company and delivered to the Agents or to counsel for the Agents
in connection with an offering of Offered Debt Securities or the sale of
Offered Debt Securities to the Agents as principals shall be deemed a
representation and warranty by the Company to the Agents as to the matters
covered thereby on the date of such certificate and at each representation date
referred to in Section 2(a) hereof subsequent thereto.
4. Closing; Delivery of Offered Debt Securities;
Defaulting Underwriters.
(a) Closing. Unless otherwise agreed to in writing by
the Representatives and the Company, delivery of the Offered Debt
Securities to the Underwriters, against payment of the purchase price
therefor in next day funds by certified or bank check or checks
payable to the order of the Company and drawn on a bank which is a
member of the New York Clearing House Association, shall be made prior
to 1:00 P.M., New York City time, on [____] through the facilities of
The Depository Trust Company ("DTC"), or in such other manner and at
such other time, date and location as may be agreed upon in writing by
the Company and the Representatives. Delivery of the documents
required by Section 6 hereof shall be made at such time and date at
the offices of Morgan, Lewis & Bockius, 101 Park Avenue, New York, New
York, or such other location as may be agreed upon in writing by the
Company and the Representatives. The hour and date of such delivery
and payment are herein called the "Closing Date"
(b) Delivery of Offered Debt Securities. Unless
otherwise agreed to in writing by the Representatives and the Company,
the Offered Debt Securities shall be registered in the name of "Cede &
Co.," as nominee of DTC, and delivered to DTC in such denominations as
the Representatives may reasonably request in writing not later than
12:30 P.M., New York City time, on the third Business Day prior to the
Closing Date or, to the extent not so requested, in such authorized
denominations as the Company shall determine. For the purpose of
expediting the checking of the Offered Debt Securities by the
Representatives on behalf of the Underwriters, the Company agrees to
make the Offered Debt Securities available to the Representatives for
such purpose at the offices of DTC in New York, New York, not later
than 2:00 P.M. New York City time, on the Business Day preceding the
Closing Date or at such other time and place as may be agreed upon by
the Company and the Representatives.
(c) Defaulting Underwriters. If on the Closing Date any
Underwriter shall fail (other than for a reason sufficient to justify
the termination of this Agreement) to purchase and pay for the Offered
Debt Securities that such Underwriter has agreed to purchase and pay
for hereunder on such date, the non-defaulting Underwriters shall be
obligated, severally and not jointly, to take up and pay for (in
addition to the respective principal amount of Offered Debt Securities
set forth opposite their respective names in
- 6 -
7
Schedule I hereto) the principal amount of Offered Debt Securities
that such defaulting Underwriter or Underwriters failed to take up and
pay for, up to a principal amount of Offered Debt Securities equal to,
in the case of each such non-defaulting Underwriter, ten percent
(10%) of the principal amount of Offered Debt Securities set forth
opposite the name of such non-defaulting Underwriter in Schedule I
hereto and such non-defaulting Underwriters shall have the right,
within 24 hours of such default, either to take up and pay for (in
such proportion as may be agreed upon among them), or to substitute
another Underwriter or Underwriters to take up and pay for the
remaining principal amount of Offered Debt Securities that the
defaulting Underwriter or Underwriters agreed but failed to purchase.
If any unpurchased Offered Debt Securities still remain, then the
Company shall be entitled to a further period of 24 hours within which
to procure another party or other parties, members of the National
Association of Securities Dealers, Inc. (or, if not members of such
Association, who are not eligible for membership in such Association
and who agree (i) to make no sales within the United States, its
territories or its possessions or to persons who are citizens thereof
or residents therein and (ii) in making sales to comply with such
Association's Rules of Fair Practice) and satisfactory to the
Representatives, to purchase such Offered Debt Securities on the terms
herein set forth. In the event that, within the respective prescribed
periods, the non-defaulting Underwriters notify the Company that they
have arranged for the purchase of such Offered Debt Securities, or the
Company notifies the non-defaulting Underwriters that it has arranged
for the purchase of such Offered Debt Securities, then the
non-defaulting Underwriters or the Company shall have the right to
postpone the Closing Date for a period of not more than three full
Business Days beyond the expiration of the respective prescribed
periods in order to effect whatever changes may thus be made necessary
in the Registration Statements or the Prospectus or in any other
documents or arrangements. In the event that none of the
non-defaulting Underwriters or the Company has arranged for the
purchase of such Offered Debt Securities by another party or parties
as above provided, then this Agreement shall terminate without any
liability on the part of the Company or any Underwriter (other than an
Underwriter which shall have failed or refused, otherwise than for
some reason sufficient to justify, in accordance with the terms
hereof, the cancellation or termination of its obligations hereunder,
to purchase and pay for the Offered Debt Securities that such
Underwriter has agreed to purchase as provided in Section 2 hereof),
except as otherwise provided in Section 5(i) hereof.
5. Covenants of Company. The Company covenants and
agrees with the Underwriters that:
(a) Filing of Prospectus. The Company will promptly
transmit copies of the Prospectus, and any amendments or supplements
thereto, to the Commission for filing pursuant to Rule 424(b) of the
Regulations under the Act.
(b) Copies of Registration Statement and Prospectus; Stop
Orders. The Company will deliver to each of the Representatives and
Counsel for the Underwriters (i) one signed copy of the Registration
Statement as originally filed, including copies of
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8
exhibits thereto (other than any exhibits incorporated by reference
therein), (ii) signed copies of any amendments and supplements to the
Registration Statement (other than amendments and supplements which
relate to securities other than the Offered Debt Securities),
including copies of the Incorporated Documents (other than exhibits
thereto), and (iii) a signed copy of each consent and certificate
included or incorporated by reference in, or filed as an exhibit to,
the Registration Statement as so amended or supplemented; the Company
will deliver to the Underwriters through the Representatives as soon
as practicable after the date of this Agreement as many copies of the
Prospectus as the Representatives may reasonably request for the
purposes contemplated by the Act; the Company will promptly advise the
Representatives of the issuance of any stop order under the Act with
respect to the Registration Statement (as it may be amended or
supplemented) or the institution of any proceedings therefor, or the
suspension of the qualification of the Offered Debt Securities for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, of which the Company shall have received
notice prior to the completion of the distribution of the Offered Debt
Securities; and the Company will use its best efforts to prevent the
issuance of any such stop order and to secure the prompt removal
thereof, if issued.
(c) Filing of Amendments and Supplements. During the
period when a prospectus relating to the Offered Debt Securities is
required to be delivered under the Act by any Underwriter or dealer,
the Company will not file any amendment or supplement to the
Registration Statement (other than amendments and supplements which
relates to securities other than the Offered Debt Securities), the
Prospectus (including a prospectus relating to the Offered Debt
Securities filed pursuant to Rule 424(b) of the Regulations under the
Act that differs from the Prospectus as first filed pursuant to such
Rule 424(b)) or any Incorporated Document to which [name of managing
underwriter] shall reasonably object as to substance or Counsel for
the Underwriters shall reasonably object as to form.
(d) Compliance with Act. During the period when a
prospectus relating to the Offered Debt Securities is required to be
delivered under the Act by any Underwriter or dealer, the Company will
comply so far as it is able, and at its own expense, with all
requirements imposed upon it by the Act, as now and hereafter amended,
and by the Regulations thereunder, as from time to time in force, so
far as necessary to permit the continuance of sales of or dealing in
the Offered Debt Securities during such period in accordance with the
provisions hereof and the Prospectus.
(e) Certain Events and Amendments or Supplements. If,
during the period when a prospectus relating to the Offered Debt
Securities is required to be delivered under the Act by any
Underwriter or dealer, (i) any event relating to or affecting the
Company or of which the Company shall be advised in writing by the
Representatives shall occur as a result of which, in the opinion of
the Company, the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light
of the
- 8 -
9
circumstances under which they were made, not misleading or (ii) it
shall be necessary to amend or supplement the Registration Statement
or the Prospectus to comply with the Act, the Exchange Act or the
Trust Indenture Act or the respective Regulations thereunder, the
Company will forthwith at its expense prepare and furnish to the
Representatives a reasonable number of copies of such amendment or
supplement that will correct such statement or omission or effect such
compliance; provided, however, that should such event relate solely to
activities of any of the Underwriters, then the Underwriters will
assume the expense of preparing and furnishing copies of any such
amendment or supplement. Notwithstanding the foregoing, in case any
Underwriter is required to deliver a prospectus relating to the
Offered Debt Securities after the expiration of nine months after the
date of this Agreement, the Company upon the request of the
Representatives will furnish to the Representatives, at the expense of
such Underwriter, a reasonable quantity of a supplemented or amended
Prospectus or supplements or amendments to the Prospectus complying
with Section 10 of the Act.
(f) Blue Sky Qualifications. During the time a
prospectus relating to the Offered Debt Securities is required to be
delivered under the Act by any underwriter or dealer, the Company will
furnish such proper information as may be lawfully required and
otherwise cooperate in qualifying the Offered Debt Securities for
offer and sale under the blue sky laws of such jurisdictions as the
Representatives may reasonably designate and will file and make in
each year such statements or reports as are or may be reasonably
required by laws of such jurisdictions; provided, however, that the
Company shall not be required to qualify as a foreign corporation or
dealer in securities or to file any consents to service of process
under the laws of any jurisdiction.
(g) Earning Statement. In accordance with Rule 158 of
the Regulations under the Act, the Company will make generally
available to its security holders, as soon as practicable (but not
later than 90 days after the close of the period covered thereby), an
earning statement (which need not be audited) in form complying with
the provisions of Rule 158 of the Regulations under the Act, in
reasonable detail covering the 12 months beginning not later than the
first day of the Company's fiscal quarter next succeeding the
"effective date" (within the meaning of such Rule 158) of the
Registration Statement.
(h) Exchange Act Documents; Ratings Notification. The
Company, during the period when a prospectus relating to any of the
Offered Debt Securities is required to be delivered under the Act by
any Underwriter or dealer, will file promptly all documents required
to be filed with the Commission pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act and the Company will promptly notify the
Representatives of any written notice given to the Company by any
"nationally recognized statistical rating organization" (as defined
for purposes of Rule 15c3-1 under the Exchange Act) of any intended
decrease in any rating of any of the Offered Debt Securities or any
preferred stock or first mortgage bonds of the Company or of any
intended change in any such rating that does not indicate the
direction of the possible change, in each case by any such rating
organization.
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10
(i) Payment of Expenses. Whether or not the transactions
contemplated hereunder are consummated or this Agreement is
terminated, the Company will pay, except as otherwise expressly
provided herein, all expenses incident to the performance of its
obligations under this Agreement, including (i) the preparation and
filing of the Registration Statement and the Prospectus (and any
amendments or supplements thereto), any preliminary prospectus
relating to the Offered Debt Securities and any Incorporated Documents
and exhibits thereto, and this Agreement, (ii) the preparation,
printing, issuance and delivery of the Offered Debt Securities to the
Underwriters, (iii) the fees and disbursements of the Company's
counsel and accountants, (iv) the fees and expenses of the Trustee and
its counsel, (v) the reasonable fees and disbursements of Counsel to
the Underwriters incurred from time to time in connection with the
transactions contemplated hereby, (vi) the fees and expenses in
connection with the rating of the Offered Debt Securities by
securities rating organizations, (vii) the expenses in connection with
the qualification of the Offered Debt Securities under securities laws
in accordance with the provisions of Section 5(f) hereof, including
filing fees and the reasonable fees and disbursements of Counsel for
the Underwriters in connection therewith and in connection with the
preparation of any Blue Sky Survey, (viii) the printing and delivery
to the Underwriters of copies of the Registration Statement and the
Prospectus (and any amendments or supplements thereto), the Indenture
and the Incorporated Documents, (ix) the printing and delivery to the
Underwriters of copies of any Blue Sky Survey and (x) the fees and
expenses, if any, incurred with respect to any filing with the
National Association of Securities Dealers, Inc. [if, in the judgment
of the Company and the Representatives, it shall be necessary or
advisable to list the Offered Debt Securities on the NYSE, then
insert: and the fees and expenses in connection with any listing of
the Offered Debt Securities on the NYSE and the registration thereof
under the Exchange Act in accordance with Section 5(l) hereof]. The
Company shall not be required to pay any amount for any expenses of
the Representatives or of any other of the Underwriters except as
provided in this Section 5(i).
(j) No Issuance Period. During the 30 days following the
Closing Date, the Company will not, without the prior written consent
of the Representatives, offer for sale, sell or enter into any
agreement to sell, or otherwise dispose of, any Offered Debt
Securities or any preferred stock or other securities of the Company
that are substantially similar to the Offered Debt Securities or any
securities convertible into or exchangeable for Offered Debt
Securities, preferred stock or such substantially similar securities
of the Company.
[If, in the judgment of the Company and the Representatives, it shall
be necessary or advisable to list the Offered Debt Securities on the
NYSE, then insert:
(k) Listing and Registration. The Company will take, or
cause to be taken, all actions necessary or advisable to effect the
listing and admission for trading of the Offered Debt Securities on
the NYSE and the registration thereof under the Exchange Act.]
- 10 -
11
6. Conditions to Underwriters' Obligations. The several
obligations of the Underwriters hereunder to purchase the Offered Debt
Securities shall be subject to the continuing accuracy of, and compliance with,
the representations and warranties of the Company contained herein on the
Closing Date (with the same force and effect as though expressly made on and as
of the Closing Date, except that references therein to the Registration
Statement and the Prospectus shall include any amendments or supplements
thereto at the Closing Date), to the performance by the Company of its
obligations to be performed hereunder on or prior to the Closing Date and to
the following further conditions:
(a) Filing of Prospectus with Commission; No Stop order;
Regulatory Approvals. The Prospectus, and any amendments or
supplements thereto, shall have been filed in the manner and within
the time period required by Rule 424(b) of the Regulations under the
Act; no stop order suspending the effectiveness of the Registration
statement under the Act shall have been issued and no proceedings for
that purpose shall have been instituted or threatened; [if, in the
judgment of the Company and the Representatives , it shall be
necessary or advisable to list the Offered Debt Securities on the
NYSE, then insert: no order suspending trading or striking or
withdrawing the Offered Debt Securities from listing on the NYSE or
registration thereof under the Exchange Act shall be in effect, no
proceedings for such purpose shall be pending before or threatened by
the NYSE and all requests for additional information on the part of
the Commission shall have been complied with;] the orders of the
Public Utility Commission of Oregon authorizing the issuance and sale
of the Offered Debt Securities by the Company as contemplated by this
Agreement, shall be in full force and effect and shall not then be
either contested or the subject of review or appeal, and such order
constitutes the only approval, authorization, consent or order of any
governmental body legally required for the authorization of the
issuance and sale of the Offered Debt Securities by the Company
pursuant to the terms of this Agreement, except such as may be
required under the Act or under state or other securities or blue sky
laws; and the Company shall have delivered to the Representatives a
certificate of the Company signed by the Chairman, President or any
Vice President of the Company, dated the Closing Date, to such effect.
(b) Opinion of Counsel for Company. On the Closing Date,
the Representatives shall have received an opinion of Counsel for the
Company, dated as of the Closing Date, in form and substance
satisfactory to Counsel for the Underwriters, to the effect that:
(i) The Company is a corporation duly organized and
validly existing and in good standing under the laws of the
State of Oregon and is duly qualified to do business as a
foreign corporation in the States of Arizona, California,
Washington and Montana and in the District of Columbia, with
power and authority (corporate and other) to own its
properties and operate its business, and neither the character
of the properties owned by it nor the nature of the business
it transacts makes
- 11 -
12
necessary its licensing or qualification as a foreign
corporation in any other state or jurisdiction;
(ii) The Company's active subsidiaries have each
been duly organized and are validly existing and in good
standing under the laws of the states or jurisdictions in
which they have been organized, with power and authority
(corporate and other) to own their respective properties and
to operate their respective businesses, and each of such
corporations is duly qualified to do business as a foreign
corporation in each jurisdiction in which the character of the
properties owned or leased by it or the nature of the business
it transacts make such qualification necessary;
(iii) The Company and each of its active
subsidiaries have valid and sufficient grants, franchises,
miscellaneous permits and easements free from unduly
burdensome restrictions, adequate for the conduct of their
respective businesses in the territories in which they are now
conducting such businesses and the ownership of the respective
properties now owned by them;
(iv) All material contracts to which the Company is
a party and which are described or referred to in the
Prospectus are valid and legally binding contracts of the
Company, except as limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
relating to or affecting the enforcement of creditors' rights
generally and general equitable principles (whether considered
in a proceeding in equity or at law), and, except as the
validity thereof may be the subject of litigation referred to
in the Prospectus, to the best of such counsel's knowledge, of
the other parties thereto;
(v) All authorizations, approvals, consents or other
orders of any governmental authority or agency required in
connection with the authorization, issuance and sale of the
Offered Debt Securities by the Company pursuant to this
Agreement have been obtained and continue in full force and
effect;
(vi) The Indenture has been duly authorized,
executed and delivered, has been duly qualified under the 1939
Act, and constitutes a valid and legally binding instrument in
accordance with its terms, except as limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization or other
similar laws relating to or affecting the enforcement of
creditors' rights generally and general equitable principles
(whether considered in a proceeding in equity or at law);
(vii) the Offered Debt Securities have been duly
authorized and executed by the Company and, when authenticated
and delivered in accordance with the Indenture and paid for by
the purchasers thereof in accordance with this Agreement, will
constitute valid and legally binding agreements of the Company
enforceable in accordance with their respective terms, except
as limited by
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13
bankruptcy, insolvency, fraudulent conveyance, reorganization
or other similar laws relating to or affecting the enforcement
of creditors' rights generally and general equitable
principles (whether considered in a proceeding in equity or at
law); [if, in the judgment of the Company and the
Representatives , it shall be necessary or advisable to list
the Offered Debt Securities on the NYSE, then insert: and the
Offered Debt Securities have been listed (subject to official
notice of issuance) on the NYSE];
(viii) The Offered Debt Securities and the Indenture
conform to the descriptions thereof contained in the
Registration Statement and Prospectus and the statements in
the Registration Statement and Prospectus, recited therein as
having been prepared or reviewed by such counsel, are true and
correct;
(ix) This Agreement has been duly authorized,
executed and delivered by the Company;
(x) The Registration Statement has become effective
under the 1933 Act, and no stop order suspending the
effectiveness of the Registration Statement is in effect and
no proceedings for that purpose are pending before or, to the
best of the knowledge of such counsel, threatened by the
Commission, and the Registration Statement and Prospectus, and
any amendment or supplement thereto (except as to financial
statements and other financial data contained therein, as to
which such counsel need express no opinion) comply as to form
in all material respects with the applicable requirements of
the Act, the 1934 Act, the 1939 Act and the Rules and
Regulations of the Commission under such Acts; and such
counsel does not believe that, after reasonable investigation,
at the date hereof or at any other date such opinion is
delivered either the Registration Statement or the Prospectus,
or any such amendment or supplement, contains any untrue
statement of a material fact or omits to state any material
fact required to be stated therein or necessary in order to
make the statements therein not misleading;
(xi) The descriptions in the Registration Statement
and Prospectus of statutes, legal and governmental
proceedings, and contracts and other documents are, to the
best of the knowledge of such counsel, accurate and fairly
present the information required to be shown therein, and such
counsel does not know of any legal or governmental proceedings
required to be described in the Prospectus which are not
described as required or any contracts or documents of a
character required to be described in the Registration
Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not described or filed as
required;
(xii) The execution and delivery of, and compliance
with, this Agreement and any of the other agreements
contemplated hereby, the Offered Debt Securities and the
Indenture will not conflict with or constitute a breach of or
default under
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14
the Articles of Incorporation or Bylaws of the Company, any
indenture, mortgage, deed of trust or other agreement or
instrument known to such counsel by which the Company is
bound, or any applicable law, or to the best of such counsel's
knowledge, information and belief, any administrative
regulation or court decree; and
(xiii) The Company is a "subsidiary company" of a
"holding company" as such terms are described in the Public
Utility Holding Company Act of 1935, as amended, ("PUHCA"),
which holding company is exempt from application of all
provisions of PUHCA except Section 9(a)(2) thereof relating to
the acquisition of securities of other public utility
companies as defined under PUHCA.
In rendering such opinion, Counsel for the Company may rely (x) as to matters
of fact, to the extent deemed proper, on certificates of responsible officers
of the Company and its subsidiaries and public officials and (y) as to matters
involving the laws of any jurisdiction other than the State of Oregon, upon the
opinion of such local counsel as shall be acceptable to the Representatives and
Counsel for the Underwriters. References to the Registration Statement and the
Prospectus in this Section 6(b) shall include any amendments or supplements
thereto at the date such opinion is rendered.
(c) Opinion of Counsel for Underwriters. On the Closing
Date, the Representatives shall have received an opinion of Counsel
for the Underwriters, dated as of the Closing Date, with respect to
the authorization and issuance of the Offered Debt Securities, the
Registration Statement, the Prospectus, the Indenture and other
related matters as the Representatives may reasonably require, and the
Company shall have furnished to Counsel for the Underwriters such
documents as they request for the purpose of enabling them to pass
upon such matters. In rendering such opinion, Counsel for the
Underwriters may rely (i) as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the Company and
(ii) upon the opinion of Counsel for the Company rendered pursuant to
Section 6(b) as to matters involving the application of laws other
than the laws of the State of New York.
(d) Letter of Accountants. On the date hereof and on the
Closing Date, Arthur Andersen LLP shall have furnished to the
Representatives a letter or letters in form and substance satisfactory
to the Representatives.
(e) Certificate. On the Closing Date, there shall not
have been, since the respective dates as of which information is given
in the Registration Statement and the Prospectus, as they may then be
amended or supplemented, except as may otherwise be stated therein or
contemplated thereby, any material adverse change in the condition of
the Company and its subsidiaries taken as a whole, financial or
otherwise, or in the earnings, affairs or business prospects of the
Company and its subsidiaries taken as a whole, whether or not arising
in the ordinary course of business, and the Representatives shall have
received a certificate of the Company signed by the Chairman,
President or
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15
any Vice President of the Company reasonably satisfactory to the
Representatives, dated as of the Closing Date, to the effect that (i)
there has been no such material adverse change, (ii) the other
representations and warranties on the part of the Company contained in
this Agreement are true and correct (with the same force and effect as
though expressly made on and as of the Closing Date, except that
references therein to the Registration Statement and the Prospectus
shall include any amendments or supplements thereto at such dates),
(iii) the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied under this
Agreement on or prior to the Closing Date and (iv) no stop order
suspending the effectiveness of the Registration Statement (as so
amended or supplemented) has been issued and no proceedings for the
purpose have been initiated or threatened by the Commission.
(f) Ratings. Moody's Investors Service, Inc. and
Standard & Poor's Ratings Group shall have publicly assigned to the
Offered Debt Securities ratings of [____] and [____], respectively,
which ratings shall be in full force and effect on the Closing Date.
[If, in the judgment of the Company and the Representatives , it shall be
necessary or advisable to list the Offered Debt Securities on the NYSE, then
insert:
(g) Listing and Registration. On the Closing Date, (i)
the NYSE shall have approved the Offered Debt Securities for listing
and admission for trading, subject to official notice of issuance, and
(ii) the Company's registration statement on Form 8-A relating to the
Offered Debt Securities shall have become effective under the Exchange
Act.]
(h)] [(g)] Other Documents. On the Closing Date, Counsel
for the Underwriters shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling
them to pass upon the issuance and sale of the Offered Debt Securities
as herein contemplated and related proceedings, or in order to
evidence the accuracy or completeness of any of the representations or
warranties, or the fulfillment of any of the conditions herein
contained, and all proceedings taken by the Company in connection with
the issuance and sale of the Offered Debt Securities and as herein
contemplated shall be satisfactory in form and substance to the
Representatives and Counsel for the Underwriters.
In case any of the conditions specified above in this Section
6 shall not have been fulfilled, this Agreement may be terminated by the
Representatives upon mailing or delivering written notice thereof to the
Company. Any such termination shall be without liability of either party to
the other party except as otherwise provided in Section 5(i) hereof and except
for any liability under Section 8 hereof.
7. Conditions to Obligations of Company. The
obligations of the Company hereunder are subject to the conditions set forth in
Section 6(a) hereof exclusive of the first and last clauses thereof. In case
such conditions shall not have been fulfilled, this Agreement may be
- 15 -
16
terminated by the Company by mailing or delivering written notice thereof to
the Representatives. Any such termination shall be without liability of either
party to the other party except as otherwise provided in Section 5(i) hereof
and except for any liability under Section 8 hereof.
8. Indemnification and Contribution.
(a) Indemnification by Company. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act as
follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever arising out of any untrue statement or alleged
untrue statement of a material fact contained in a preliminary
prospectus relating to the Offered Debt Securities, if any, including
all documents then incorporated by reference therein pursuant to Item
12 of Form S-3, in the Incorporated Documents, in the Registration
Statement or the Prospectus, or in the Registration Statement or the
Prospectus (as amended or supplemented if any amendments or
supplements thereto shall have been made), or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading, unless such
untrue statement or omission or such alleged untrue statement or
omission was made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter, through the
Representatives or otherwise, expressly for use in the Registration
Statement or the Prospectus (or any amendment or supplement to either
thereof) or arises out of or is based upon, statements in or omissions
from that part of the Registration Statement that constitutes the
Statement of Eligibility on Form T-1 under the Trust Indenture Act of
the Trustee; provided, however, any such indemnity for a preliminary
prospectus relating to the Offered Debt Securities, if any, or the
Prospectus shall not inure to the benefit of any Underwriter (or of
any person controlling such Underwriter) on account of any losses,
claims, damages or liabilities arising from the sale of the Offered
Debt Securities to any person if (i) such Underwriter shall have
failed to send or give to such person (A) with or prior to the written
confirmation of such sale, a copy of the Prospectus or the Prospectus
as amended or supplemented, if any amendments or supplements thereto
shall have been furnished to the Representatives at or prior to the
time of written confirmation of the sale involved, except any
incorporated Documents, or (B) with or prior to the delivery of the
Offered Debt Securities to such person, a copy of any amendment or
supplement to the Prospectus that shall have been furnished to the
Representatives subsequent to such written confirmation and prior to
the delivery of such Offered Debt Securities to such person, except
any incorporated Documents, and (ii) such untrue statement or omission
or such alleged untrue statement or omission was corrected in the
Prospectus or the Prospectus as amended or supplemented at the time of
such delivery or confirmation, as the case may be;
- 16 -
17
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, commenced or threatened or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever reasonably
incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under clause (i) or (ii) above.
(b) Indemnification of Company. Each Underwriter
severally agrees to indemnify and hold harmless the Company, its directors,
each of its officers who signed the Registration Statement, and any amendments
or supplements thereto, and each person, if any, who controls the Company
within the meaning of Section 15 of the Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
Section 8(a) hereof, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
or any amendment thereto) or a preliminary prospectus relating to the Offered
Debt Securities, if any, or the Prospectus or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriter, through the Representatives or otherwise,
expressly for use in the Registration Statement (or any amendment or supplement
thereto) or any such preliminary prospectus or the Prospectus (or any amendment
or supplement thereto).
(c) General. Each indemnified party shall give prompt
notice to each indemnifying party of any action commenced against it in respect
of which indemnity may be sought hereunder, but failure so to notify an
indemnifying party shall not relieve it from any liability on account of this
indemnity agreement except to the extent that it has been prejudiced in any
material respect by such failure or from any liability that it may have
otherwise than on account of this indemnity agreement. An indemnifying party
may participate at its own expense in the defense of such action. If it so
elects within a reasonable time after receipt of such notice, an indemnifying
party, jointly with any other indemnifying parties receiving such notice, may
assume the defense of such action with counsel chosen by it and approved by the
indemnified parties defendant in such action, unless such indemnified parties
reasonably object to such assumption on the ground that there may be legal
defenses available to them that are different from or in addition to those
available to such indemnifying party, in which case such indemnifying party
cannot assume the control of the defense. Such firm shall be designated in
writing by, in the case of parties indemnified under section 9(b) hereof, the
Representatives and, in the case of parties indemnified under Section 9(a)
hereof, the Company. If an indemnifying party assumes the defense of such
action, the indemnifying parties shall not be liable for any fees and expenses
of counsel for the indemnified parties incurred thereafter in connection with
such action. Fees and expenses to be paid by the indemnifying parties shall be
reimbursed as they are incurred. In no event shall the indemnifying parties be
liable for the fees and expenses of more
- 17 -
18
than one counsel, including any local counsel, for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent
of each indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which such indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability claims that are the subject matter of such proceeding.
(d) Contribution. If the indemnification provided for in
this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b) hereof in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages
or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other from the offering of the Offered Debt
Securities. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law, then such indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company on the one hand and the Underwriters on
the other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth on the cover page of the Prospectus. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to above in this Section 8(d). The
amount paid or payable to an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above in this Section 8(d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) Confirmation of Certain Statements. The Underwriters
confirm that the statements with respect to the public offering of the Offered
Debt Securities set forth in the last paragraph on the cover page of, and the
statements with respect to the resale of any Offered Debt
- 18 -
19
Securities at a discount in the first paragraph under the list of Underwriters
set forth under the caption "Underwriting" in the Prospectus Supplement are
correct and were furnished in writing to the Company by the Underwriters for
inclusion in the Prospectus.
9. Termination The Representatives may, by notice to
the Company, terminate this Agreement at any time at or prior to the Closing
Date, if (a) a banking moratorium shall have been declared either by federal or
authorities or authorities in the State of New York, (b) trading in securities
generally on the NYSE or of any securities of the Company shall have been
suspended by the Commission, the NYSE or the Pacific Stock Exchange or there
shall have been established by the Commission or the NYSE, any federal or state
agency or the decision of any court any limitation on the prices for such
trading or any restrictions on the distribution of such securities, (c) any
outbreak or material escalation of hostilities or other calamity or crisis
affecting the financial markets of the United States shall have occurred, (d) a
downgrading shall have occurred in the ratings of any of the Offered Debt
Securities or any preferred stock or first mortgage bonds of the Company by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 15c3-1 of the Regulations under the Exchange Act) or (e) any
change in the business or properties of the Company shall have occurred, the
effect of which is such as to make it impracticable to proceed with the sale or
delivery of the Offered Debt Securities and, in the case of any of the events
specified in clauses (a) through (d) of this Section 9, the effect of such
event, singly or together with any other such events, is such as to make it, in
the judgment of the Representatives, impracticable to proceed with the sale or
delivery of the Offered Debt Securities. Any termination hereof pursuant to
this Section 9 shall be without liability of any party to any other party
except as otherwise provided in Section 5(i) hereof and except for any
liability under Section 8 hereof.
10. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, or contained in certificates signed by officers of the Company,
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or any
controlling person of any Underwriter, or by or on behalf of the Company, and
shall survive delivery of the Offered Debt Securities to the Underwriters.
11. Miscellaneous. The validity and interpretation of
this Agreement shall be governed by the laws of the State of New York. This
Agreement shall inure to the benefit of the Company and the Underwriters and,
with respect to the provisions of Section 8 hereof, each controlling person
referred to in Section 8 hereof, and their respective successors, assigns,
executors and administrators. Nothing in this Agreement is intended or shall
be construed to give to any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. The term "successors" as used in this Agreement
shall not include any purchaser, as such purchaser, of any of the Offered Debt
Securities from any of the Underwriters. This Agreement may be executed in any
number of separate counterparts all of which together shall constitute the same
Agreement.
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20
12. Notices and Authority to Act. All communications
hereunder shall be in writing (which may be telex or facsimile transmission)
and effective only upon receipt and, if to the Underwriters, shall be sent to
the Representatives at the address set forth above, Attention of [ ]
and, if to the Company, shall be sent to it at 121 S.W. Salmon Street,
Portland, Oregon 97204, Attention of Chief Financial Officer or at such other
address as the Company shall furnish the representatives in writing.
- 20 -
21
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to the Company the enclosed duplicate
hereof, whereupon this letter will become a binding agreement between the
Company and the several Underwriters in accordance with its terms. It is
understood that your acceptance of this Agreement on behalf of each of the
Underwriters is pursuant to the authority set forth in a form of Agreement
among Underwriters, the form of which shall be submitted to the Company for
examination, upon request, but without warranty on your part as to the
authority of the signers thereof.
Very truly yours,
Portland General Electric Company
By_________________________________
Name:
Title:
Accepted as of the date
first above written:
[Insert names of Representatives]
By:___________________________
( )
As representatives of the
other several Underwriters
named in Schedule I hereto
- 21 -
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SCHEDULE I
Principal amount
Underwriter of Offered Debt Securities
----------- --------------------------
===========
Total
- 22 -
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EXHIBIT (1)(b)
Portland General Electric Company
Medium-Term Note Series Due From
Nine Months to Thirty Years from Date of Issue
DISTRIBUTION AGREEMENT
__________, 199_
Dear Sirs:
Portland General Electric Company, an Oregon corporation (the
"Company"), confirms its agreement with you and any other agent which may
become a party hereto (the "Agents") with respect to the issue and sale by the
Company of up to $__,000,000 aggregate principal amount of its First Mortgage
Bonds, Medium-Term Note Series described herein (the "Notes"). The Notes will
be issued under the Indenture of Mortgage and Deed of Trust, dated July 1, 1945
made by the Company to the Marine Midland Trust Company of New York (now Marine
Midland Bank), Trustee (the "Original Indenture"), as supplemented by
[________] supplemental indentures thereto and as to be supplemented by an
additional supplemental indenture relating to the Notes (the "Supplemental
Indenture"). The Original Indenture as heretofore supplemented is referred to
herein as the Indenture and the Indenture, as supplemented by the Supplemental
Indenture, is referred to herein as the "Mortgage". As of the date hereof, the
Company has authorized the issuance and sale of up to U.S. $__,000,000
aggregate principal amount of Notes through the Agents pursuant to the terms of
this Agreement. It is understood, however, that the Company may from time to
time authorize the issuance of additional Notes and that such additional Notes
may be sold through or to the Agents pursuant to the terms of this Agreement,
all as though the issuance of such Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the
Company directly to purchasers, in which case the Agents will act as the agents
of the Company in soliciting Note purchasers, and (as may from time to time be
agreed to by the Company and the Agents) to the Agents as principals for resale
to purchasers.
2
The Company has filed with the Securities and Exchange
Commission (the "SEC") a registration statement on Form S-3 (No. 33- [______])
for the registration of debt securities, including the Notes under the
Securities Act of 1933, as amended, (the "1933 Act") and the offering thereof
from time to time in accordance with Rule 415 of the rules and regulations of
the SEC under the 1933 Act (the "1933 Act Regulations"). Such registration
statement has been declared effective by the SEC. At the time any series of
Notes are sold hereunder the Supplemental Indenture relating to any one or more
series of Notes shall have been qualified under the Trust Indenture Act of
1939, as amended (the "1939 Act"). Such registration statement (and any further
registration statements which may be filed by the Company for the purpose of
registering additional Notes and in connection with which this Agreement is
included as an exhibit) and the prospectus constituting a part thereof, and any
prospectus supplements relating to the Notes, including all documents
incorporated therein by reference, as supplemented by the Prospectus Supplement
dated ____________, 199_ and as from time to time amended or supplemented by
the filing of documents pursuant to the Securities Exchange Act of 1934 (the
"1934 Act") or the 1933 Act or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus", respectively, except that if any
revised prospectus shall be provided to the Agents by the Company for use in
connection with the offering of the Notes which is not required to be filed by
the Company pursuant to Rule 424(b) of the 1933 Act Regulations, the term
"Prospectus" shall refer to such revised prospectus from and after the time it
is first provided to the Agents for such use.
SECTION 1. Appointment as Agents.
(a) Appointment of Agents. Subject to the terms and conditions
stated herein and subject to the reservation by the Company of the right to
sell Notes directly on its own behalf, the Company hereby appoints the Agents
as the exclusive agents for the purpose of soliciting purchases of the Notes
from the Company by others and agrees that whenever the Company determines to
sell Notes directly to the Agents as principals for resale to others, it will
enter into a Terms Agreement (hereafter defined) relating to such sale in
accordance with the provisions of Section 3(b) hereof. The Company agrees
that, during the period the Agents are acting as the Company's placement agents
hereunder, the Company will not appoint other agents to act on its behalf, or
to assist it, in the placement of the Notes; provided, however, that
notwithstanding any other term or provision hereof to the contrary, in
connection with offers to purchase Notes received by the Company through any
person other than the Agents, the Company may accept any such offer made
through such person so long as the Company gives the Agents reasonable prior
notice of such acceptance and any such person agrees to be bound by the terms
hereof (including, without limitation, the commission rates set forth in
Schedule A hereto) pursuant to an agreement with the Company in substantially
the form of Exhibit A hereto.
(b) Reasonable Efforts Solicitations; Right to Reject Offers.
Upon receipt of instructions from the Company, the Agents will use their
reasonable efforts to solicit purchases of such principal amount of the Notes
as the Company and the Agents shall agree upon from time to time during the
term of this Agreement, it being understood that the Company shall not approve
the solicitation of purchases of Notes in excess of the amount which shall be
authorized
-2-
3
by the Company from time to time. The Agents will communicate to the Company,
orally or in writing, each offer to purchase Notes, other than those offers
rejected by the Agents. The Agents shall have the right, in their discretion
reasonably exercised, to reject any proposed purchase of Notes, as a whole or
in part, and any such rejection shall not be deemed a breach of the Agents'
agreement contained herein. The Company may accept or reject any proposed
purchase of the Notes, in whole or in part.
(c) Solicitations as Agents; Purchases as Principals. In
soliciting purchases of the Notes on behalf of the Company, the Agents shall
act solely as agents for the Company and not as principals. The Agents shall
make reasonable efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes has been solicited by the Agents and
accepted by the Company. The Agents shall not have any liability to the
Company in the event any such purchase is not consummated for any reason. The
Agents shall not have any obligation to purchase Notes from the Company as
principals, but the Agents may agree from time to time to purchase Notes as
principals. Any such purchase of Notes by the Agents as principals shall be
made pursuant to a Terms Agreement in accordance with Section 3(b) hereof.
(d) Reliance. The Company and the Agents agree that any Notes the
placement of which the Agents arrange shall be placed by the Agents, and any
Notes purchased by the Agents shall be purchased, in reliance on the
representations, warranties, covenants and agreements of the Company contained
herein and on the terms and conditions and in the manner provided herein.
SECTION 2. Representations and Warranties.
(a) The Company represents and warrants to the Agents as of the
date hereof, as of the date of each acceptance by the Company of an offer for
the purchase of Notes (whether through the Agents as agents or to the Agents as
principals), as of the date of each delivery of Notes (whether through the
Agents as agents or to the Agents as principals) (the date of each such
delivery to the Agents as principals being hereafter referred to as a
"Settlement Date"), and as of the times referred to in Section 7(b) hereof as
follows:
(i) Registration Statement and Prospectus. At the time the
Registration Statement became effective, the Registration Statement
complied, and as of each representation date referred to in Section
2(a) hereof will comply, in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939
Act and the rules and regulations of the SEC promulgated thereunder.
The Registration Statement, at the time it became effective, did not,
and at each time thereafter at which any amendment to the Registration
Statement becomes effective and any Annual Report on Form 10-K is
filed by the Company with the SEC and as of each representation date
referred to in Section 2(a) hereof, will not, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading. The Prospectus, as of the date hereof does not, and as of
each representation date referred to in Section 2(a) hereof will not,
contain an untrue
-3-
4
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;provided,
however, that the representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by the Agents
expressly for use in the Registration Statement or Prospectus or to
that part of the Registration Statement which constitutes the
Trustee's Statement of Eligibility and Qualification under the 1939
Act (Form T-1).
(ii) Incorporated Documents. The documents incorporated by
reference in the Prospectus, at the time they were or hereafter are
filed with the SEC, complied or when so filed will comply, as the case
may be, in all material respects with the requirements of the 1934 Act
and the rules and regulations promulgated thereunder (the "1934 Act
Regulations"), and, when read together and with the other information
in the Prospectus, did not and will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were or are made, not
misleading.
(iii) As of the time any Notes are issued and sold hereunder,
the Notes will have been duly authorized, executed and authenticated
and, when paid for by the purchasers thereof will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Mortgage and secured equally and ratably with all
other First Mortgage Bonds issued under the Mortgage; and the
execution and delivery of, and compliance with this Agreement, the
Notes and the Mortgage will not conflict with or constitute a breach
of or default under the Articles of Incorporation or Bylaws of the
Company, any indenture, mortgage, deed of trust or other agreement or
instrument by which the Company is or at the date of delivery of such
Note will be bound, or any law, administrative regulation or court
decree.
(iv) The Company and each of its active subsidiaries have
been duly incorporated and are validly existing as corporations in
good standing under the laws of the respective jurisdictions of their
incorporation, with power and authority (corporate and other) to own
their respective properties and conduct their respective businesses as
described in the Prospectus; and each of the Company and such
subsidiaries is duly qualified to do business as a foreign corporation
in each jurisdiction in which the character of the properties owned or
leased by it or, to the Company's knowledge, the nature of the
business it transacts makes such qualification necessary.
(v) The Company and each of its active subsidiaries have
valid and sufficient grants, franchises, miscellaneous permits and
easements, free from unduly burdensome restrictions, adequate for the
conduct of their respective businesses in the territories in which
they are now conducting such businesses and the ownership of the
respective properties now owned by them and, except as otherwise set
forth in the Prospectus, there
-4-
5
are no legal or governmental proceedings pending or, to the Company's
knowledge, threatened which might result in a material modification,
suspension or revocation thereof.
(vi) Except as described in the Prospectus, the Company has
good and marketable title in fee to all the real property, including
fixtures, and satisfactory title to all other property and assets
described in the Prospectus as owned by it, free and clear of all
liens, charges, encumbrances, and restrictions except such as are
permitted by the Mortgage.
(vii) The properties specifically described or referred to in
the Mortgage (other than property which has been duly released from
the lien thereof in accordance with the provisions thereof) constitute
substantially all of the properties of the Company as of the date
hereof other than "excepted property" as defined in the Mortgage; the
descriptions of such properties contained in the Mortgage will in all
respects be sufficient for all purposes of the Mortgage; and the
Mortgage, including any Supplemental Indenture relating to one or more
series of Notes, will constitute a legal, valid and direct enforceable
first mortgage lien (except to the extent that enforcement of such
lien may be limited by the effect of certain laws and judicial
decisions upon the remedies provided in the Mortgage, which, however,
do not make the remedies afforded inadequate for the practical
realization of the security and benefits provided by the Mortgage, and
except as enforceability of such lien may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights) upon the interest of the Company
in all such properties, free from all prior liens, charges or
encumbrances other than as are permitted by the Mortgage.
(viii) Accountants. The accountants who certified the
financial statements included or incorporated by reference in the
Prospectus are independent public accountants within the meaning of
the 1933 Act and the 1933 Act Regulations.
(ix) Financial Statements. The financial statements and any
supporting schedules of the Company and its consolidated subsidiaries
included or incorporated by reference in the Registration Statement
and the Prospectus present fairly the consolidated financial position
of the Company and its consolidated subsidiaries as of the dates
indicated and the consolidated results of their operations for the
periods specified; and, except as stated therein, said financial
statements have been prepared in conformity with generally accepted
accounting principles in the United States applied on a consistent
basis; and the supporting schedules included in the Registration
Statement present fairly the information required to be stated
therein.
(x) Regulatory Approvals. The Public Utility Commission of
Oregon has authorized or, prior to any offering or sale of Notes by
the Company, will have authorized, the issuance and sale of the Notes
then being so offered or sold; and no other consent,approval,
authorization, order or decree of any court or governmental agency or
-5-
6
body (including the Federal Energy Regulatory Commission) is required
for the consummation by the Company of the transactions contemplated
by this Agreement, except such as may be required under the 1933 Act,
the 1939 Act, the 1933 Act Regulations or state securities or Blue Sky
laws.
(b) Additional Certifications. Any certificate signed by any
officer of the Company and delivered to the Agents or to counsel for the Agents
in connection with an offering of Notes or the sale of Notes to the Agents as
principals shall be deemed a representation and warranty by the Company to the
Agents as to the matters covered thereby on the date of such certificate and at
each representation date referred to in Section 2(a) hereof subsequent thereto.
SECTION 3. Solicitations as Agents; Purchases as Principals.
(a) Solicitations as Agents. On the basis of the representations
and warranties herein contained, but subject to the terms and conditions herein
set forth, the Agents agree, as agents of the Company, to use their best
efforts to solicit offers to purchase the Notes upon the terms and conditions
set forth herein and in the Prospectus.
The Company reserves the right, in its sole discretion, to suspend
solicitation of offers to purchase the Notes through the Agents, as agents,
commencing at any time for any period of time or permanently. Upon receipt of
instructions from the Company, the Agents will forthwith suspend solicitation
of offers to purchase from the Company until such time as the Company has
advised the Agents that such solicitation may be resumed.
The Company agrees to pay the Agents a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Company as a result of a solicitation made by the Agents as
set forth in Schedule A hereto. Without the prior approval of the Company, the
Agents may not reallow any portion of the commission payable pursuant hereto to
dealers or purchasers in connection with the offer and sale of any Notes.
The purchase price, interest rate, maturity date and other terms of
the Notes shall be agreed upon by the Company and the Agents and set forth in a
pricing supplement to the Prospectus to be prepared following each acceptance
by the Company of an offer for the purchase of Notes. Except as may be
otherwise provided in such pricing supplement to the Prospectus, the Notes will
be issued in denominations of U.S. $100,000 or any amount in excess thereof
which is an integral multiple of U.S. $1,000. All Notes sold through the
Agents as agents will be sold at 100% of their principal amount unless
otherwise agreed to by the Company and the Agents.
(b) Purchases as Principals. Each sale of Notes to the Agents as
principals shall be made in accordance with the terms contained herein and
pursuant to a separate agreement which will provide for the sale of such Notes
to, and the purchase and reoffering thereof by, the Agents. Each such separate
agreement (which may be an oral agreement and confirmed in writing as described
below between the Agents and the Company) is herein referred to as a "Terms
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Agreement". Unless the context otherwise requires, each reference contained
herein to "this Agreement" shall be deemed to include any applicable Terms
Agreement between the Company and the Agents. Each such Terms Agreement,
whether oral (and confirmed in writing, which may be by facsimile transmission)
or in writing, shall be with respect to such information (as applicable) as is
specified in Exhibit B hereto. The Agents' commitment to purchase Notes
pursuant to any Terms Agreement shall be deemed to have been made on the basis
of the representations and warranties of the Company herein contained and shall
be subject to the terms and conditions herein set forth. Each Terms Agreement
shall specify the principal amount of Notes to be purchased by the Agents
pursuant thereto, the price to be paid to the Company for such Notes, the time
and place of delivery of and payment for such Notes and such other provisions
(including further terms of the Notes) as may be mutually agreed upon. Such
Terms Agreement shall also specify the requirements for the opinions of counsel
and officer's certificate pursuant to Sections 7(b) and 7(c) hereof.
(c) Administrative Procedures. Administrative procedures with
respect to the sale of Notes shall be agreed upon from time to time by the
Agents and the Company (the "Procedures"). The Agents and the Company agree to
perform the respective duties and obligations specifically provided to be
performed by them in the Procedures.
SECTION 4. Covenants of the Company.
The Company covenants with the Agents as follows:
(a) Notice of Certain Events. The Company will notify the Agents
immediately (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the transmittal to the SEC for filing of any supplement to
the Prospectus, (iii) of the receipt of any comments from the SEC with respect
to the Registration Statement or the Prospectus, (iv) of any request by the SEC
for any amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information, and (v) of the issuance by the
SEC of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose. The Company
will make every reasonable effort to prevent the issuance of any stop order
and, if any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) Notice of Certain Proposed Filings. Except as otherwise
provided in subsection (j) of this Section, the Company will give the Agents
notice of its intention to file or prepare any additional registration
statement with respect to the registration of additional Notes, any amendment
to the Registration Statement or any amendment or supplement to the Prospectus
(other than any amendment or supplement made or deemed to be made to the
Registration Statement or Prospectus by reason of the incorporation therein by
reference of any document filed with the SEC under the 1934 Act and other than
an amendment or supplement providing solely for a change in the interest rates
of Notes or an amendment or supplement which relates to securities other than
the Notes), whether by the filing of documents pursuant to the 1933 Act or
otherwise, and will furnish the Agents with copies of any such amendment or
supplement or
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other documents proposed to be filed or prepared a reasonable time in advance
of such proposed filing or preparation, as the case may be and will promptly
notify the Agents and furnish them with copies of any documents filed with the
SEC under the 1934 Act and incorporated by reference in the Prospectus.
(c) Copies of the Registration Statement and the Prospectus. The
Company will promptly deliver to the Agents one signed and as many conformed
copies of the Registration Statement (as originally filed) and of each
amendment (other than an amendment which relates to securities other than the
Notes) thereto (including exhibits filed therewith or incorporated by reference
therein and documents incorporated by reference in the Prospectus) as the
Agents may reasonably request. The Company will furnish to the Agents as many
copies of the Prospectus, as amended or supplemented (other than an amendment
or supplement which relates to securities other than the Notes) as the Agents
shall reasonably request so long as the Agents are required to deliver a
Prospectus in connection with sales or solicitations of offers to purchase the
Notes.
(d) Revisions of Prospectus -- Material Changes. Except as
otherwise provided in subsection (j) of this Section, if at any time during the
term of this Agreement any event shall occur or condition exist as a result of
which it is necessary, in the reasonable opinion of counsel for the Agents or
counsel for the Company, to further amend or supplement the Prospectus in order
that the Prospectus will not include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the time
the Prospectus is delivered to a purchaser, or if it shall be necessary, in the
reasonable opinion of either such counsel, to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, immediate notice
shall be given, and confirmed in writing, to the Agents to cease the
solicitation of offers to purchase the Notes in the Agents' capacity as agents
and to cease sales of any Notes the Agents may then own as principals pursuant
to a Terms Agreement, and the Company will promptly prepare and file with the
SEC such amendment or supplement, whether by filing documents pursuant to the
1934 Act, the 1933 Act or otherwise, as may be necessary to correct such untrue
statement or omission or to make the Registration Statement and Prospectus
comply with such requirements.
(e) Prospectus Revisions -- Periodic Financial Information. Except
as otherwise provided in subsection (j) of this Section, on or prior to the
date on which there shall be released to the general public interim financial
statement information related to the Company with respect to each of the first
three quarters of any fiscal year or preliminary financial statement
information with respect to any fiscal year, the Company shall furnish such
information to the Agents, confirmed in writing, and, if requested by the
Agents, shall cause the Prospectus to be amended or supplemented to include or
incorporate by reference capsule financial information with respect thereto and
corresponding information for the comparable period of the preceding fiscal
year, as well as such other information and explanations as shall be necessary
for an understanding thereof or as shall be required by the 1933 Act or the
1933 Act Regulations.
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(f) Earnings Statements. The Company will make generally
available to its security holders as soon as practicable, but not later than 90
days after the close of the period covered thereby, an earnings statement (in
form complying with the provisions of Rule 158 under the 1933 Act) covering
each twelve month period beginning, in each case, not later than the first day
of the Company's fiscal quarter next following the "effective date" (as defined
in such Rule 158) of the Registration Statement with respect to each sale of
Notes.
(g) Blue Sky Qualifications. The Company will endeavor, in
cooperation with the Agents, to qualify the Notes for offering and sale under
the applicable securities laws of such states and other jurisdictions of the
United States as the Agents may designate, and will maintain such
qualifications in effect for as long as may be required for the distribution of
the Notes; provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified. The Company
will file such statements and reports as may be required by the laws of each
jurisdiction in which the Notes have been qualified as above provided. The
Company will promptly advise the Agents of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Notes
for sale in any such state or jurisdiction or the initiating or threatening of
any proceeding for such purpose.
(h) 1934 Act Filings. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the 1934 Act.
(i) Stand-Off Agreement. If required pursuant to the terms of a
Terms Agreement, between the date of any Terms Agreement and the Settlement
Date with respect to such Terms Agreement, the Company will not, without the
Agents' prior consent, offer or sell, or enter into any agreement to sell, any
debt securities of the Company (other than the Notes that are to be sold
pursuant to such Terms Agreement and commercial paper in the ordinary course of
business).
(j) Suspension of Certain Obligations. The Company shall not be
required to comply with the provisions of subsections (b), (d) and (e) of this
Section during any period from the time (i) the Agents shall have suspended
solicitation of offers to purchase the Notes in their capacity as agents
pursuant to a request from the Company and (ii) the Agents shall not then hold
any Notes as principals purchased pursuant to a Terms Agreement, to the time
the Company shall determine that solicitation of purchases of the Notes should
be resumed or shall subsequently enter into a new Terms Agreement with the
Agents.
SECTION 5. Conditions of Obligations.
The obligations of the Agents to solicit offers to purchase the Notes
as agents of the Company, the obligations of any purchasers of the Notes sold
through the Agents as agents, and any obligation of the Agents to purchase
Notes pursuant to a Terms Agreement will be subject to the accuracy of the
representations and warranties on the part of the Company herein and to the
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accuracy of the statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance and observance
by the Company of all its covenants and agreements herein contained and to the
following additional conditions precedent:
(a) Legal Opinions. On the date hereof, the Agents shall have
received the following legal opinions, dated as of the date hereof and in form
and substance satisfactory to the Agents:
(1) Opinion of Company Counsel. The opinion of Steven F.
McCarrel, Esq., counsel to the Company, to the effect that:
(i) The Company is a corporation duly organized and
validly existing and in good standing under the laws of the
State of Oregon and is duly qualified to do business as a
foreign corporation in the States of Arizona, California,
Washington and Montana and in the District of Columbia, with
power and authority (corporate and other) to own its
properties and operate its business, and neither the character
of the properties owned by it nor the nature of the business
it transacts makes necessary its licensing or qualification as
a foreign corporation in any other state or jurisdiction;
(ii) The Company's active subsidiaries have each
been duly organized and are validly existing and in good
standing under the laws of the states or jurisdictions in
which they have been organized, with power and authority
(corporate and other) to own their respective properties and
to operate their respective businesses, and each of such
corporations is duly qualified to do business as a foreign
corporation in each jurisdiction in which the character of the
properties owned or leased by it or the nature of the business
it transacts make such qualification necessary;
(iii) The Company and each of its active
subsidiaries have valid and sufficient grants, franchises,
miscellaneous permits and easements free from unduly
burdensome restrictions, adequate for the conduct of their
respective businesses in the territories in which they are now
conducting such businesses and the ownership of the respective
properties now owned by them;
(iv) All material contracts to which the Company is
a party and which are described or referred to in the
Prospectus are valid and legally binding contracts of the
Company, except as limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
relating to or affecting the enforcement of creditors' rights
generally and general equitable principles (whether considered
in a proceeding in equity or at law), and, except as the
validity thereof may be the subject of litigation referred to
in the Prospectus, to the best of such counsel's knowledge, of
the other parties thereto;
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(v) All authorizations, approvals, consents or other
orders of any governmental authority or agency required in
connection with the authorization, issuance and sale of the
Notes by the Company pursuant to this Agreement have been
obtained and continue in full force and effect;
(vi) The Mortgage has been duly authorized, executed
and delivered, has been duly qualified under the 1939 Act, and
constitutes a valid and legally binding instrument in
accordance with its terms (except to the extent limited by the
effect of certain laws and judicial decisions upon the
remedies provided in the Mortgage, which, however, do not make
the remedies afforded inadequate for the practical realization
of the security and benefits provided by the Mortgage, and
except as the same may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to
or affecting the enforcement of creditors' rights); subject to
the foregoing exception and subject to liens permitted by the
Mortgage, the Indenture now constitutes, and the Mortgage will
(when any Supplemental Indenture relating to one or more
series of Notes shall have been duly recorded and filed)
constitute, a valid first mortgage on all the right, title and
interest of the Company in and to the property described or
referred to in the granting clauses thereof, other than
property heretofore released from the lien thereof; the
descriptions and references in the granting clauses of the
Mortgage of and to property purported to be covered thereby,
and the provisions of the Mortgage for the extension of the
lien thereof to property and interests therein acquired by the
Company after the date of execution of the Original Indenture
are adequate to constitute the Mortgage a valid first lien on
all property of the Company, real, personal or mixed, tangible
or intangible (other than "excepted property", as defined in
the Original Indenture) of every kind, character and
description, subject to no prior liens other than "permitted
encumbrances", as defined in the Mortgage, and minor
restrictions, exceptions and reservations in conveyances, and
defects which do not in any substantial way impair the
security afforded by the Mortgage; and the provisions of the
Indenture for the extension of the lien thereof to property
and interests therein acquired by the Company after the date
of execution of the Original Indenture are effective and such
provisions of the Indenture, as the same has been further
supplemented by any Supplemental Indenture relating to one or
more series of Notes, will (when any such Supplemental
Indenture shall have been duly recorded and filed) be
effective, without the execution by the Company of any
supplemental indenture or other instrument specifically
extending the lien to such property and interests, to extend
the lien of the Mortgage to such property and interests as a
legally valid and direct first mortgage lien as security for
the Notes, subject to no prior liens other than "permitted
encumbrances" as defined in the Mortgage, and minor
restrictions, exceptions and reservations in conveyances and
defects which do not in any substantial way impair the
security afforded by the Mortgage; provided, however, that the
Indenture or any Supplemental Indenture relating to one or
more series of Notes or a further supplemental indenture may
be required to be filed or recorded
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or re-recorded to constitute the lien of the Mortgage as a
legally valid first mortgage having priority over the rights
of bona fide purchasers for value without notice of the
Mortgage of real property and interests therein (other than
that acquired by accession) acquired by the Company subsequent
to the recording of any such Supplemental Indenture.
(vii) The Notes are in due and proper form, have
been duly and validly authorized for issuance, offer and sale
pursuant to this Agreement and, when issued, authenticated and
delivered pursuant to the provisions of this Agreement and the
Mortgage, the Notes will constitute valid and legally binding
obligations of the Company enforceable in accordance with
their terms (subject to the exceptions referred to in
paragraph (vi) above) and will be entitled to the security and
benefits provided by the Mortgage and secured equally and
ratably with all other bonds issued or to be issued under the
Mortgage;
(viii) The Notes and the Mortgage conform to the
descriptions thereof contained in the Registration Statement
and Prospectus and the statements in the Registration
Statement and Prospectus, recited therein as having been
prepared or reviewed by such counsel, are true and correct;
(ix) The Company, with minor and unimportant
exceptions, has good title in fee to all the real property and
good and valid title to all the personal property described or
referred to in the granting clauses of the Mortgage as owned
by it, other than property heretofore released from the lien
of the Mortgage, subject to the exceptions, reservations,
reversions and easements stated in such granting clauses,
except that certain of such properties are subject to minor
irregularities or deficiencies in the record evidence of title
which, in the opinion of such counsel, will not interfere with
the proper operation and development of such properties by the
Company; the properties described or referred to in the
granting clauses of the Indenture as leasehold properties are
held under good and valid leases; the Federal Power Commission
(now the Federal Energy Regulatory Commission) licenses
described or referred to in the granting clauses of the
Mortgage have been validly issued and, in cases where
originally issued to others than the Company, validly assigned
and transferred to the Company; the electric transmission and
distribution lines of the Company described or referred to in
the Mortgage which are located in, on or under public
highways, streets and alleys are so located pursuant to valid
rights, franchises or permits held by the Company, and the
Company has good title to such properties, subject, as to
those located in, on or under the streets or alleys of any
municipal corporation of Oregon, to the terms of the Oregon
statute providing that property so located shall be forfeited
and escheated to the municipal corporation upon failure of the
Company to remove such property within one year, or such
longer period as may be granted by the municipal corporation,
after expiration of the franchise which permitted the erection
or installation thereof, with respect to private property on
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which the electric transmission and distribution lines of the
Company described or referred to in the Mortgage are located,
the Company in most cases holds easements granted by the
record owners of such lands (such easements being granted in
some instances by the apparent owner without examination of
title); and the Company has power of eminent domain (in some
cases only after issuance of certificates of convenience and
necessity from the Public Utility Commission of Oregon) to
acquire rights-of-way over private property in the State of
Oregon for electric transmission and distribution line
purposes.
(x) The Indenture has been duly recorded (or filed
for recordation) and filed as a mortgage on properties, real
and other, described in the Indenture as subject to the lien
of the Indenture in all counties or other recording districts
in which any such properties are situated, or in such other
places as is required by law to establish, preserve and
protect the lien of the Indenture on all such properties; and
all taxes, fees and other charges in connection with the
recording of the Indenture have been duly paid;
(xi) This Agreement has been duly authorized,
executed and delivered by the Company;
(xii) The Registration Statement has become
effective under the 1933 Act, and no stop order suspending the
effectiveness of the Registration Statement is in effect and
no proceedings for that purpose are pending before or, to the
best of the knowledge of such counsel, threatened by the
Commission, and the Registration Statement and Prospectus, and
any amendment or supplement thereto (except as to financial
statements and other financial data contained therein, as to
which such counsel need express no opinion) comply as to form
in all material respects with the applicable requirements of
the Act, the 1934 Act, the 1939 Act and the Rules and
Regulations of the Commission under such Acts; and such
counsel does not believe that, after reasonable investigation,
at the date hereof or at any other date such opinion is
delivered either the Registration Statement or the Prospectus,
or any such amendment or supplement, contains any untrue
statement of a material fact or omits to state any material
fact required to be stated therein or necessary in order to
make the statements therein not misleading;
(xiii) The descriptions in the Registration
Statement and Prospectus of statutes, legal and governmental
proceedings, and contracts and other documents are, to the
best of the knowledge of such counsel, accurate and fairly
present the information required to be shown therein, and such
counsel does not know of any legal or governmental proceedings
required to be described in the Prospectus which are not
described as required or any contracts or documents of a
character required to be described in the Registration
Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not described or filed as
required;
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(xiv) The execution and delivery of, and compliance
with, this Agreement and any of the other agreements
contemplated hereby, the Notes and the Mortgage will not
conflict with or constitute a breach of or default under the
Articles of Incorporation or Bylaws of the Company, any
indenture, mortgage, deed of trust or other agreement or
instrument known to such counsel by which the Company is
bound, or any applicable law, or to the best of such counsel's
knowledge, information and belief, any administrative
regulation or court decree; and
(xv) The Company is a "subsidiary company" of a
"holding company" as such terms are described in the Public
Utility Holding Company Act of 1935, as amended, ("PUHCA"),
which holding company is exempt from application of all
provisions of PUHCA except Section 9(a)(2) thereof relating to
the acquisition of securities of other public utility
companies as defined under PUHCA.
Appropriate revisions to such opinion may be made to the
extent a Supplemental Indenture relating to the first series of Notes to be
issued pursuant hereto has not been executed at the date hereof, provided,
however, that the opinion with respect to such matters shall be delivered to
the Agents prior to the issuance and sale of any Notes hereunder.
In rendering such opinion, counsel may rely (x) as to matters
involving the laws of any jurisdiction other than the State of Oregon, upon the
opinion or opinions of such local counsel as shall be acceptable to the Agents
and such counsel for the Agents, (y) with respect to the opinions contemplated
by clauses (i) and (ii) of paragraph (b) of this Section 5, upon advices from
public officials as to the good standing of the Company and its subsidiaries
and (z) as to matters of fact, to the extent deemed proper, on certificates of
responsible officers of the Company and its subsidiaries.
In giving the opinions contemplated by clause (vi) above,
counsel shall state what, if any, re-recording or refiling of the Mortgage is
required, and what, if any, further supplemental indentures or other
instruments are required to be executed, filed and/or recorded or notices
given, in order to extend the lien of the Mortgage to after-acquired property.
(2) Opinion of Counsel to the Agents. The opinion of
Morgan, Lewis & Bockius, counsel to the Agents, covering such matters as the
Agents shall reasonably request.
(3) In giving their opinions required by subsection
(a)(1) and (a)(2) of this Section, counsel to the Company and Morgan, Lewis &
Bockius shall each additionally state that nothing has come to their attention
that would lead them to believe that the Registration Statement, at the time it
became effective, and if an amendment to the Registration Statement or an
Annual Report on Form 10-K has been filed by the Company with the SEC
subsequent to the effectiveness of the Registration Statement, then at the time
such amendment became effective or at the time of the most recent such filing,
and at the date hereof, and at such other date as such opinions are delivered,
contains or contained an untrue statement of a material fact or omits or
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omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading or that the Prospectus, as amended or supplemented at the date
hereof, and at such other date as such opinions are delivered, contains an
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that such
counsel need express no belief with respect to financial statements or related
data.
(b) Officer's Certificate. At the date hereof the Agents shall
have received a certificate of the Chairman, the President, the Chief Financial
Officer or the Treasurer of the Company, substantially in the form of Appendix
I hereto and dated as of the date hereof, to the effect that (i) since the
respective dates as of which information is given in the Registration Statement
and the Prospectus or since the date of any applicable Terms Agreement, there
has not been any material adverse change in the condition, financial or
otherwise or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, (ii) the other representations and
warranties of the Company contained in Section 2 hereof are true and correct
with the same force and effect as though expressly made at and as of the date
of such certificate, (iii) the Company has performed or complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the date of such certificate, and (iv) that no stop
order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been initiated or threatened by
the SEC.
(c) Comfort Letter. On the date hereof, the Agents shall have
received a letter from Arthur Andersen LLP, dated as of the date hereof and in
form and substance satisfactory to the Agents to the effect that:
(i) They are independent public accountants with respect
to the Company and its subsidiaries within the meaning of the 1933 Act
and the 1933 Act Regulations.
(ii) In their opinion, the consolidated financial statements
and supporting schedule(s) of the Company and its subsidiaries
examined by them and included or incorporated by reference in the
Registration Statement comply as to form in all material respects with
the applicable accounting requirements of the 1933 Act and the 1933
Act Regulations with respect to registration statements on Form S-3
and the 1934 Act and the 1934 Act Regulations.
(iii) They have performed specified procedures, not
constituting an audit, including a reading of the latest available
interim financial statements of the Company and its indicated
subsidiaries, a reading of the minute books of the Company and such
subsidiaries since the end of the most recent fiscal year with respect
to which an audit report has been issued, inquiries of and discussions
with certain officials of the Company and such subsidiaries
responsible for financial and accounting matters with respect to the
unaudited consolidated financial statements included in the
Registration Statement and
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Prospectus and the latest available interim unaudited financial
statements of the Company and its subsidiaries, and such other
inquiries and procedures as may be specified in such letter, and on
the basis of such inquiries and procedures nothing came to their
attention that caused them to believe that: (A) the unaudited
consolidated financial statements of the Company and its subsidiaries
included in the Registration Statement and Prospectus do not comply as
to form in all material respects with the applicable accounting
requirements of the 1934 Act and the 1934 Act Regulations or were not
presented in conformity with generally accepted accounting principles
in the United States applied on a basis substantially consistent with
that of the audited financial statements included therein, or (B) at a
specified date not more than five days prior to the date of such
letter, there was any decrease in the common stock equity or any
increase in consolidated long-term debt of the Company and its
subsidiaries, in each case as compared with the amounts shown on the
most recent consolidated balance sheet of the Company and its
subsidiaries included in the Registration Statement and Prospectus or,
during the period from the date of such balance sheet to a specified
date not more than five days prior to the date of such letter, there
were any decreases, as compared with the corresponding period in the
preceding year, in operating revenues or net income of the Company and
its subsidiaries, except in each such case as set forth in or
contemplated by the Registration Statement and Prospectus or except
for such exceptions enumerated in such letter as shall have been
agreed to by the Agents and the Company.
(iv) In addition to the examination referred to in their
report included or incorporated by reference in the Registration
Statement and the Prospectus, and the limited procedures referred to
in clause (iii) above, they have carried out certain other specified
procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are included or
incorporated by reference in the Registration Statement and Prospectus
and which are specified by the Agents, and have found such amounts,
percentages and financial information to be in agreement with the
relevant accounting, financial and other records of the Company and
its subsidiaries identified in such letter.
(d) Other Documents. On the date hereof and on each Settlement
Date with respect to any applicable Terms Agreement, counsel to the Agents
shall have been furnished with such documents and opinions as such counsel may
reasonably require for the purpose of enabling such counsel to pass upon the
issuance and sale of Notes as herein contemplated and related proceedings, or
in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of Notes as herein contemplated shall be satisfactory in
form and substance to the Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement (or, at the
option of the Agents, any applicable Terms Agreement) may be terminated by the
Agents by notice to the Company at any time and any such termination shall be
without liability of any party to any other party, except that the
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covenant regarding provision of an earnings statement set forth in Section 4(f)
hereof, the provisions concerning payment of expenses under Section 10 hereof,
the indemnity and contribution agreements set forth in Sections 8 and 9 hereof,
the provisions concerning the representations, warranties and agreements to
survive delivery of Section 11 hereof and the provisions of Section 15 hereof
shall remain in effect.
SECTION 6. Delivery of and Payment for Notes Sold through the Agents.
Delivery of Notes sold through the Agents as agents shall be made by
the Company to the Agents for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, the Agents shall promptly notify the Company and deliver
the Note to the Company, and, if the Agents have theretofore paid the Company
for such Note, the Company will promptly return such funds to the Agents. If
such failure occurred for any reason other than default by the Agents in the
performance of their obligations hereunder, the Company will reimburse the
Agents on an equitable basis for their loss of the use of the funds for the
period such funds were credited to the Company's account.
SECTION 7. Additional Covenants of the Company.
The Company covenants and agrees with the Agents that:
(a) Reaffirmation of Representations and Warranties. Each
acceptance by it of an offer for the purchase of Notes, and each delivery of
Notes to the Agents pursuant to a Terms Agreement, shall be deemed to be an
affirmation that the representations and warranties of the Company contained in
this Agreement and in any certificate theretofore delivered to the Agents
pursuant hereto are true and correct at the time of such acceptance or sale, as
the case may be, and an undertaking that such representations and warranties
will be true and correct at the time of delivery to the purchaser or his
agents, or to the Agents, of the Notes or Notes relating to such acceptance or
sale, as the case may be, as though made at and as of each such time (and it is
understood that such representations and warranties shall relate to the
Registration Statement and Prospectus as amended and supplemented to each such
time).
(b) Subsequent Delivery of Certificates. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented
(other than by an amendment or supplement providing solely for a change in the
interest rates of Notes or similar changes, and, unless the Agents shall
otherwise specify, other than by an amendment or supplement which relates
exclusively to an offering of debt securities other than the Notes) or there is
filed with the SEC any document incorporated by reference into the Prospectus
(other than any Current Report on Form 8-K relating exclusively to the issuance
of debt securities under the Registration Statement, unless the Agents shall
otherwise specify) or (if required pursuant to the terms of a Terms Agreement)
the Company sells Notes to the Agents pursuant to a Terms Agreement, the
Company shall furnish or cause to be furnished to the Agents forthwith a
certificate dated the
-17-
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date of filing with the SEC of such supplement or document, the date of
effectiveness of such amendment or the date of such sale, as the case may be,
in form satisfactory to the Agents to the effect that the statements contained
in the certificate referred to in Section 5(b) hereof which were last furnished
to the Agents are true and correct at the time of such amendment, supplement,
filing or sale, as the case may be, as though made at and as of such time
(except that such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such time) or, in
lieu of such certificate, a certificate of the same tenor as the certificate
referred to in said Section 5(b), modified as necessary to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented
(other than by an amendment or supplement providing solely for a change in the
interest rates of the Notes or similar changes or solely for the inclusion of
additional financial information, and, unless the Agents shall otherwise
specify, other than by an amendment or supplement which relates exclusively to
an offering of debt securities other than the Notes) or there is filed with the
SEC any document incorporated by reference into the Prospectus (other than any
Current Report on Form 8-K or Quarterly Report on Form l0-Q, unless the Agents
shall otherwise specify) or (if required pursuant to the terms of a Terms
Agreement) the Company sells Notes to the Agents pursuant to a Terms Agreement,
the Company shall furnish or cause to be furnished forthwith to the Agents and
to counsel to the Agents a written opinion of counsel to the Company, or other
counsel satisfactory to the Agents, dated the date of filing with the SEC of
such supplement or document, the date of effectiveness of such amendment or the
date of such sale, as the case may be, in form and substance satisfactory to
the Agents, of the same tenor as the opinion referred to in Section 5(a)
hereof, but modified, as necessary, to relate to the Registration Statement and
the Prospectus as amended and supplemented to the time of delivery of such
opinion; or, in lieu of such opinion, counsel last furnishing the opinion to
the Agents shall furnish the Agents with a letter substantially in the form of
Appendix II hereto to the effect that the Agents may rely on such last opinion
to the same extent as though it was dated the date of such letter authorizing
reliance (except that statements in such last opinion shall be deemed to relate
to the Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such letter authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information or there is filed with the SEC any
document incorporated by reference into the Prospectus which contains
additional financial information or (if required pursuant to the terms of a
Terms Agreement), the Company sells Notes to the Agents pursuant to a Terms
Agreement, the Company shall cause Arthur Andersen LLP forthwith to furnish the
Agents a letter, dated the date of effectiveness of such amendment, supplement
or document with the SEC, or the date of such sale, as the case may be, in form
satisfactory to the Agents, of the same tenor as the portions of the letter
referred to in clauses (i) and (ii) of Section 5(c) hereof but modified to
relate to the Registration Statement and Prospectus, as amended and
supplemented to the date of
-18-
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such letter, and of the same general tenor as the portions of the letter
referred to in clauses (iii) and (iv) of said Section 5(c) with such changes as
may be necessary to reflect changes in the financial statements and other
information derived from the accounting records of the Company; provided,
however, that if the Registration Statement or the Prospectus is amended or
supplemented to include financial information as of and for a fiscal quarter
(i) Arthur Andersen LLP may limit the scope of such letter to the unaudited
financial statements included in such amendment or supplement unless any other
information included therein of an accounting, financial or statistical nature
is of such a nature that, in the reasonable judgment of the Agents, such letter
should cover such other information and (ii) such letter may, unless otherwise
requested by the Agents, be delivered no later than the time the Agents first
offer Notes subsequent to the date of such amendment or supplement.
(e) Extension of Agreement to Additional Authorized Notes. In the
event that, pursuant to the last sentence of the first paragraph of this
Agreement, the Company shall have authorized the issuance of additional Notes
for sale through or to the Agents hereunder, the Company agrees to provide to
the Agents the documents required by Sections 7(b), (c) and (d) hereof in
connection with the authorization of such additional Notes for sale through or
to the Agents.
SECTION 8. Indemnification.
(a) Indemnification of the Agents. The Company agrees to
indemnify and hold harmless the Agents and each person, if any, who controls
the Agents within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, unless such untrue statement or
omission or such alleged untrue statement or omission was made in
reliance upon and in conformity with written information furnished to
the Company by the Agents expressly for use in the Registration
Statement (or any amendment thereto) or the Prospectus or arises out
of or is based upon, statements in or omissions from that part of the
Registration Statement that constitutes the Statement of Eligibility
on Form T-1 under the Trust Indenture Act of the Trustee;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or
-19-
20
omission, or any such alleged untrue statement or omission, if such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Agents), reasonably incurred in investigating, preparing or defending
against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
(b) Indemnification of Company. The Agents agree to indemnify and
hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by the Agents expressly for use in
the Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto).
(c) General. Each indemnified party shall give prompt notice to
each indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such action. In no
event shall the indemnifying parties be liable for the fees and expenses of
more than one counsel (in addition to any local counsel) for all indemnified
parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances.
SECTION 9. Contribution.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8 hereof
is for any reason held to be unenforceable by the Agents or other indemnified
party although applicable in accordance with its terms, the Company and the
Agents shall contribute to the aggregate losses, liabilities, claims, damages
and expenses, as incurred, of the nature contemplated by said indemnity
agreement incurred by the Company and the Agents, as incurred, in such
proportions that the Agents are responsible for that portion represented by the
percentage that the total commissions and underwriting discounts received by
the Agents to the date of such liability bears to the total sales price
received by the Company from the sale of Notes sold to or through the Agents to
the date of such liability, and the Company is responsible for the balance;
provided, however, that no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be
-20-
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entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person, if any, who
controls the Agents within the meaning of Section 15 of the 1933 Act shall have
the same rights to contribution as the Agents, and each director of the
Company, each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act shall have the same rights to contribution as the Company.
SECTION 10. Payment of Expenses.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(i) The preparation and filing of the Registration
Statement and all amendments thereto and the Prospectus and any
amendments or supplements thereto;
(ii) The preparation, filing and reproduction of this
Agreement;
(iii) The preparation, printing, issuance and delivery of
the Notes, including any fees and expenses relating to the use of
book-entry notes;
(iv) The fees and disbursements of the Company's
accountants and counsel, and of the Trustee and its counsel;
(v) The reasonable fees and disbursements of counsel to
the Agents incurred from time to time in connection with the
transactions contemplated hereby;
(vi) The qualification of the Notes under state securities
laws in accordance with the provisions of Section 4(g) hereof,
including filing fees and the reasonable fees and disbursements of
counsel for the Agents in connection therewith and in connection with
the preparation of any Blue Sky Survey and any Legal Investment Survey;
(vii) The printing and delivery to the Agents in quantities
as hereinabove stated of copies of the Registration Statement and any
amendments thereto, and of the Prospectus and any amendments or
supplements thereto, and the delivery by the Agents of the Prospectus
and any amendments or supplements thereto in connection with
solicitations or confirmations of sales of the Notes;
(viii) The preparation, printing and delivery to the Agents
of copies of the Indenture and all supplements and amendments thereto;
(ix) Any fees charged by rating agencies for the rating of
the Notes;
-21-
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(x) The fees and expenses incurred in connection with the
listing of the Notes on any securities exchange;
(xi) The fees and expenses, if any, incurred with respect
to any filing with the National Association of Securities Dealers,
Inc.; and
(xii) Any advertising and other out-of-pocket expenses of
the Agents incurred with the approval of the Company.
SECTION 11. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto or thereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of the Agents or
any controlling person of the Agents, or by or on behalf of the Company, and
shall survive each delivery of and payment for any of the Notes.
SECTION 12. Termination.
(a) Termination of this Agreement. This Agreement will continue
in effect until terminated as provided in this Section 12(a). This Agreement
(excluding any Terms Agreement) may be terminated by either the Company as to
any of you or by any of you insofar as this Agreement relates to such of you by
giving written notice of such termination to such of you or the Company, as
the case may be. This Agreement shall so terminate at the close of business on
the first business day following the receipt of such notice by the party to
whom such notice is given.
(b) Termination of a Terms Agreement. The Agents may terminate
any Terms Agreement, immediately upon notice to the Company, at any time prior
to the Settlement Date relating thereto (i) if there has been, since the date
of such Terms Agreement or since the respective dates as of which information
is given in the Registration Statement, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there shall have occurred any material adverse change in the financial
markets in the United States or any outbreak or escalation of hostilities or
other national or international calamity or crisis the effect of which is such
as to make it, in the judgment of the Agents, impracticable to market the Notes
or enforce contracts for the sale of the Notes, or (iii) if trading in any
securities of the Company has been suspended by the SEC or a national
securities exchange, or if trading generally on the New York Stock Exchange
shall have been suspended, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices for securities have been required, by
either of said exchanges or by order of the SEC or any other governmental
authority, or if a banking moratorium shall have been declared by either
Federal or New York authorities or if a banking
-22-
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moratorium shall have been declared by the relevant authorities in the country
or countries of origin of any foreign currency or currencies in which the Notes
are denominated or payable, or (iv) if the rating assigned by any nationally
recognized securities rating agency to any debt securities of the Company as of
the date of any applicable Terms Agreement shall have been lowered since that
date or if any such rating agency shall have publicly announced that it has
placed any debt securities of the Company on what is commonly termed a "watch
list" for possible downgrading, or (v) if there shall have come to the Agents'
attention any facts that would cause the Agents to believe that the Prospectus,
at the time it was required to be delivered to a purchaser of Notes, contained
an untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances existing at the time of such delivery, not misleading.
(c) General. In the event of any such termination, neither party
will have any liability to the other party hereto, except that (i) the Agents
shall be entitled to any fees earned in accordance with the third paragraph of
Section 3(a) hereof, (ii) if at the time of termination (a) the Agents shall
own any Notes purchased pursuant to a Terms Agreement with the intention of
reselling them or (b) an offer to purchase any of the Notes has been accepted
by the Company but the time of delivery to the purchaser or his agents of the
Note or Notes relating thereto has not occurred, the covenants set forth in
Sections 4 and 7 hereof shall remain in effect until such Notes are so resold
or delivered, as the case may be, and (iii) the covenant set forth in Section
4(f) hereof, the indemnity and contribution agreements set forth in Sections 8
and 9 hereof, and the provisions of Sections 11 and 15 hereof shall remain in
effect.
SECTION 13. Notices.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
by telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
Portland General Electric Company
121 S.W. Salmon Street
Portland, Oregon 97204
Attention: Chief Financial Officer
If to the Agents:
[Name and Address of Agents]
or at such other address as such party may designate from time to time by
notice duly given in accordance with the terms of this Section 13.
-23-
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SECTION 14. Governing Law.
This Agreement and all the rights and obligations of the parties shall
be governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in such State. Any
suit, action or proceeding brought by the Company against the Agents in
connection with or arising under this Agreement shall be brought solely in the
state or federal court of appropriate jurisdiction located in the Borough of
Manhattan, The City of New York.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Agents and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to
in Sections 8 and 9 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof and thereof are intended to be for the sole and exclusive benefit of the
parties hereto and their respective successors and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Notes shall
be deemed to be a successor by reason merely of such purchase.
SECTION 16. Counterparts.
This Agreement may be executed in one or more counterparts, all of
which taken together shall constitute one and the same instrument and any of
the parties hereto may execute this Agreement by signing any such counterpart.
-24-
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If the foregoing is in accordance with the Agents' understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument along with all counterparts will become a binding
agreement between the Agents and the Company in accordance with its terms.
Very truly yours,
Portland General Electric Company
By ______________________________
Name:
Title:
Accepted:
[Name of Agents]
By:________________________________
Name:
Title:
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26
SCHEDULE A
Term Commission Rate
---- ---------------
From 9 months to less than 1 year. . . . . . . . .
From 1 year to less than 18 months . . . . . . . .
From 18 months to less than 2 years. . . . . . . .
From 2 years to less than 3 years. . . . . . . . .
From 3 years to less than 4 years. . . . . . . . .
From 4 years to less than 5 years. . . . . . . . .
From 5 years to less than 6 years. . . . . . . . .
From 6 years to less than 7 years. . . . . . . . .
From 7 years to less than 10 years . . . . . . . .
From 10 years to less than 15 years. . . . . . . .
From 15 years to less than 20 years. . . . . . . .
20 years and more. . . . . . . . . . . . . . . . .
-26-
27
EXHIBIT A
[name of person
to act as agent]
Re: $___,000,000 Medium Term Notes
Pricing Supplement:________________
Settlement Date:___________________
Dear Sirs:
Reference is made to the Distribution Agreement, dated as of
_________, 199_ (the "Distribution Agreement") among Portland General Electric
Company (the "Company") and the Agents named therein, pertaining to up to
$__,000,000 aggregate principal amount of Medium Term Notes (the "Notes") to be
offered from time to time by the Company. The provisions of such Distribution
Agreement (a copy of which has been provided to you) are hereby incorporated by
reference and each of the representations and warranties set forth therein
shall be deemed to have been made by the Company to you on the date hereof.
Subject to the terms set forth in the Distribution Agreement, the Company
hereby appoints you as an Agent (as such term is defined in the Distribution
Agreement) of the Company for the purpose of soliciting one offer to purchase
Notes from the Company containing the terms as set forth in the
above-referenced Pricing Supplement. This appointment is effective as to and
extends only to the one transaction which you are presenting to the Company
(the terms of which are set forth in the attached Terms Agreement) and the
Distribution Agreement shall automatically be terminated as to you upon the
earlier to occur of (i) payment made in full to the Company for the Notes sold
pursuant to the offer presented or (ii) the Company or you determine not to
proceed with the transaction. Upon such termination of the Distribution
Agreement as to you, neither you nor the Company shall have any liability to
the other except, in the case of a termination pursuant to clause (i) above, as
provided in those sections of the Distribution Agreement referenced in the
second paragraph of Section 5(d) thereof. You agree to be bound by, and comply
with, all of the provisions of the Distribution Agreement applicable to the
Agents thereunder.
As a condition precedent to your obligation to consummate the
transaction referred to above, you shall have received the following (i) an
opinion of counsel pursuant to Section 5(a)(1) of the Distribution Agreement,
(ii) an officer's certificate pursuant to Section 5(b) of the Distribution
Agreement and (iii) a copy of a letter from Arthur Andersen LLP pursuant to
Section 5(c) of the Distribution Agreement.
This letter agreement shall be governed by and construed in
accordance with the laws of the State of New York.
A-1
28
If the foregoing is in accordance with you understanding,
please sign and return to us two counterparts hereof, whereupon this letter
agreement shall constitute a binding agreement between the Company and you in
accordance with its terms.
Portland General Electric Company
By:______________________________
Name:
Title:
Accepted and Agreed to:
[name of person
to act as agent]
By:_______________________________
Name:
Title:
A-2
29
EXHIBIT B
The following terms, if applicable, shall be agreed to by the Agents
and the Company pursuant to each Terms Agreement:
Principal Amount: $_______
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
Date of Maturity:
Purchase Price: ___%
Settlement Date and Time:
Seller or Dealer Group
and reallowance:
Additional Terms:
Also, agreement as to whether the following will be required:
Officer's Certificate pursuant to Section 7(b) of
the Distribution Agreement.
Legal Opinion pursuant to Section 7(c) of the
Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the
Distribution Agreement.
Stand-off Agreement pursuant to Section 4(i) of
the Distribution Agreement.
B-1
30
APPENDIX I
FORM OF OFFICER'S CERTIFICATE
Portland General Electric Company
I, ________________, _________ of Portland General Electric Company,
an Oregon corporation (the "Company"), pursuant to Section 5(b) of the
Distribution Agreement dated __________, 199_ (the "Distribution Agreement")
between the Company and ______________________________ hereby certify that, to
the best of my knowledge, after reasonable investigation:
1. Since ________, 19__ , there has been no material adverse change
in the condition, financial or otherwise, of the Company and its subsidiaries
considered as one enterprise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business other than as
contemplated or set forth in the prospectus (the "Prospectus") contained in the
registration statement (File No. 33-[_______]) relating to the Company's
Medium-Term Notes (the "Registration Statement");
2. The representations and warranties of the Company contained in
Section 2 of the Distribution Agreement are true and correct with the same
force and effect as though expressly made at and as of the date hereof;
3. The Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the date
hereof; and
4. No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been initiated
or threatened by the Securities and Exchange Commission.
31
IN WITNESS WHEREOF I have hereunto signed my name and affixed
the seal of the Company.
Dated: _______ __, 199_
By:___________________________
Title:
[SEAL]
32
APPENDIX II
_____________ __, 19__
Re: Portland General Electric Company Medium-Term Notes
Dear Sirs:
I have delivered an opinion to you dated ________, 19__ as counsel to
Portland General Electric Company (the "Company"), pursuant to Section 5(a) of
the Distribution Agreement, dated as of ________, 199_ between the Company and
you, as Agents. You may continue to rely upon such opinion as if it were dated
as of this date except that all statements and opinions contained therein shall
be deemed to relate to the Registration Statement and Prospectus as amended and
supplemented to this date.
This letter is delivered to you pursuant to Section 7(c) of the
Distribution Agreement.
Very truly yours,
1
EXHIBIT (4)(b)
-------------------------------------------------------------------------------
PORTLAND GENERAL ELECTRIC COMPANY
AND
THE BANK OF NEW YORK,
AS TRUSTEE
----------
INDENTURE
Dated as of September 1, 1995
----------
Junior Subordinated Debentures
-------------------------------------------------------------------------------
2
CROSS-REFERENCE TABLE
Section of Trust Indenture Act of 1939, Section of
as amended Indenture
--------------------------------------- -----------
310(a) 7.09
310(b) 7.08
7.10
310(c) Inapplicable
311(a) 7.13
311(b) 7.13
311(c) Inapplicable
312(a) 5.01
312(b) 5.02(a)
5.02(d)
5.02(c)
312(c) 5.02(e)
313(a) 5.04(a)
313(b) 5.04(b)
313(c) 5.04(a)
5.04(b)
313(d) 5.04(c)
314(a) 5.03
314(b) Inapplicable
314(c) 13.05(a)
314(d) Inapplicable
314(e) 13.05(b)
314(f) Inapplicable
315(a) 7.01(a)
7.02
315(b) 6.07
315(c) 7.01
315(d) 7.01(b)
7.01(c)
315(e) 6.08
316(a) 6.06
8.04
316(b) 6.04
316(c) 8.01
317(a) 6.02
317(b) 4.03
318(a) 13.08
i
3
TABLE OF CONTENTS*
Page
------
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
RECITALS:
ARTICLE ONE
DEFINITIONS
SECTION 1.01 Certain terms defined; other terms defined in the Trust Indenture Act
of 1939, as amended, or by reference therein in the Securities Act of
1933, as amended, to have the meanings assigned therein . . . . . .
Applicant . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . .
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . .
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . .
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Company Request or Company Order . . . . . . . . . . . . . . . . . .
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . .
Debenture or Debentures . . . . . . . . . . . . . . . . . . . . . .
Debentureholder . . . . . . . . . . . . . . . . . . . . . . . . . .
Debenture Register . . . . . . . . . . . . . . . . . . . . . . . . .
Debenture Registrar . . . . . . . . . . . . . . . . . . . . . . . .
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . .
Depository . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . .
Global Debenture . . . . . . . . . . . . . . . . . . . . . . . . . .
This Table of Contents does not constitute part of the Indenture and should
not have any bearing upon the interpretation of any of its terms or
provisions.
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Governmental Obligations . . . . . . . . . . . . . . . . . . . . . .
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . .
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . .
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . .
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Predecessor Debenture . . . . . . . . . . . . . . . . . . . . . . .
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . .
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . .
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . .
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . .
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE TWO
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF DEBENTURES
SECTION 2.01 Designation, terms, amount, authentication and delivery of Debentures
SECTION 2.02 Form of Debentures and Trustee's certificate . . . . . . . . . . . .
SECTION 2.03 Date and denominations of Debentures, and provisions for payment of
principal, premium and interest . . . . . . . . . . . . . . . . . .
SECTION 2.04 Execution of Debentures . . . . . . . . . . . . . . . . . . . . . .
SECTION 2.05 Exchange of Debentures . . . . . . . . . . . . . . . . . . . . . . .
(a) Registration and transfer of Debentures . . . . . . . . . . .
(b) Debentures to be accompanied by proper instruments of transfer
(c) Charges upon exchange, transfer or registration of Debentures
(d) Restrictions on transfer or exchange at time of redemption .
SECTION 2.06 Temporary Debentures . . . . . . . . . . . . . . . . . . . . . . . .
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SECTION 2.07 Mutilated, destroyed, lost or stolen Debentures . . . . . . . . . .
SECTION 2.08 Cancellation of surrendered Debentures . . . . . . . . . . . . . . .
SECTION 2.09 Provisions of Indenture and Debentures for sole benefit of parties
and Debentureholders . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 2.10 Appointment of Authenticating Agent . . . . . . . . . . . . . . . .
SECTION 2.11 Global Debenture . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE THREE
REDEMPTION OF DEBENTURES AND SINKING FUND PROVISIONS
SECTION 3.01 Redemption of Debentures . . . . . . . . . . . . . . . . . . . . . .
SECTION 3.02 (a) Notice of redemption . . . . . . . . . . . . . . . . . . . .
(b) Selection of Debentures in case less than all Debentures to be
redeemed . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 3.03 (a) When Debentures called for redemption become due and payable
(b) Receipt of new Debenture upon partial payment . . . . . . . .
SECTION 3.04 Sinking Fund for Debentures . . . . . . . . . . . . . . . . . . . .
SECTION 3.05 Satisfaction of Sinking Fund Payments with Debentures . . . . . . .
SECTION 3.06 Redemption of Debentures for Sinking Fund . . . . . . . . . . . . .
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01 Payment of principal of (and premium, if any) and interest on
Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 4.02 Maintenance of office or agency for payment of Debentures,
designation of office or agency for payment, registration, transfer
and exchange of Debentures . . . . . . . . . . . . . . . . . . . . .
SECTION 4.03 (a) Duties of paying agent . . . . . . . . . . . . . . . . . . .
(b) Company as paying agent . . . . . . . . . . . . . . . . . . .
(c) Holding sums in trust . . . . . . . . . . . . . . . . . . . .
SECTION 4.04 Appointment to fill vacancy in office of Trustee . . . . . . . . . .
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SECTION 4.05 Restriction on consolidation, merger or sale . . . . . . . . . . . .
SECTION 4.06 Restriction on declaration of dividends, etc . . . . . . . . . . . .
ARTICLE FIVE
DEBENTUREHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 5.01 Company to furnish Trustee information as to names and addresses of
Debentureholders . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 5.02 (a) Trustee to preserve information as to names and addresses of
Debentureholders received by it in capacity of paying agent .
(b) Trustee may destroy list of Debentureholders on certain
conditions . . . . . . . . . . . . . . . . . . . . . . . . .
(c) Trustee to make information as to names and addresses of
Debentureholders available to "Applicants" or mail
communications to Debentureholders in certain circumstances .
(d) Procedure if Trustee elects not to make information available
to Applicants . . . . . . . . . . . . . . . . . . . . . . . .
(e) Company and Trustee not accountable for disclosure of
information . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 5.03 (a) Annual and other reports to be filed by Company with Trustee
(b) Additional information and reports to be filed with Trustee
and Securities and Exchange Commission . . . . . . . . . . .
(c) Summaries of information and reports to be transmitted by
Company to Debentureholders . . . . . . . . . . . . . . . . .
(d) Annual Certificate to be furnished to Trustee . . . . . . . .
(e) Reports concerning original issue discount . . . . . . . . .
SECTION 5.04 (a) Trustee to transmit annual report to Debentureholders . . . .
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(b) Trustee to transmit certain further reports to
Debentureholders . . . . . . . . . . . . . . . . . . . . . .
(c) Copies of reports to be filed with exchanges and Securities
and Exchange Commission . . . . . . . . . . . . . . . . . . .
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS UPON EVENT OF DEFAULT
SECTION 6.01 (a) Events of Default defined . . . . . . . . . . . . . . . . . .
(b) Acceleration of maturity upon Event of Default . . . . . . .
(c) Waiver of default and rescission of declaration of maturity .
(d) Restoration of former position and rights upon curing default
SECTION 6.02 (a) Covenant of Company to pay to Trustee whole amount due on
Debentures on default in payment of interest or principal (and
premium, if any) . . . . . . . . . . . . . . . . . . . . . .
(b) Trustee may recover judgment for whole amount due on
Debentures on failure of Company to pay . . . . . . . . . . .
(c) Filing of proof of claim by Trustee in bankruptcy,
reorganization or receivership proceeding . . . . . . . . . .
(d) Rights of action and of asserting claims may be enforced by
Trustee without possession of Debentures . . . . . . . . . .
SECTION 6.03 Application of moneys collected by Trustee . . . . . . . . . . . . .
SECTION 6.04 Limitation on suits by holders of Debentures . . . . . . . . . . . .
SECTION 6.05 (a) Remedies cumulative . . . . . . . . . . . . . . . . . . . . .
(b) Delay or omission in exercise of rights not waiver of default
SECTION 6.06 Rights of holders of majority in principal amount of Debentures to
direct Trustee and to waive defaults . . . . . . . . . . . . . . . .
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SECTION 6.07 Trustee to give notice of defaults known to it, but may withhold in
certain circumstances . . . . . . . . . . . . . . . . . . . . . . .
SECTION 6.08 Requirements of an undertaking to pay costs in certain suits under
Indenture or against Trustee . . . . . . . . . . . . . . . . . . . .
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01 (a) Upon Event of Default occurring and continuing, Trustee shall
exercise powers vested in it, and use same degree of care and
skill in their exercise, as prudent individual would use . .
(b) Trustee not relieved from liability for negligence or willful
misconduct except as provided in this section . . . . . . . .
(1) Prior to Event of Default and after the curing of all
Events of Default which may have occurred . . . . . .
(i) Trustee not liable except for performance of
duties specifically set forth . . . . . . .
(ii) In absence of bad faith, Trustee may
conclusively rely on certificates or opinions
furnished it hereunder, subject to duty to
examine the same if specifically required to
be furnished to it . . . . . . . . . . . . .
(2) Trustee not liable for error of judgment made in good
faith by Responsible Officer unless Trustee negligent
(3) Trustee not liable for action or nonaction in
accordance with direction of holders of majority in
principal amount of Debentures . . . . . . . . . . . .
(4) Trustee need not expend own funds without adequate
indemnity . . . . . . . . . . . . . . . . . . . . . .
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(c) Provisions regarding liability of Trustee subject to Section
7.01 . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 7.02 Subject to provisions of Section 7.01: . . . . . . . . . . . . . . .
(a) Trustee may rely on documents believed genuine and properly
signed or presented . . . . . . . . . . . . . . . . . . . . .
(b) Sufficient evidence by certain instrument provided for . . .
(c) Trustee may obtain Officer's Certificate . . . . . . . . . .
(d) Trustee may consult with counsel and act on advice or Opinion
of Counsel . . . . . . . . . . . . . . . . . . . . . . . . .
(e) Trustee may require indemnity from Debentureholders . . . . .
(f) Prior to Event of Default Trustee not bound to investigate
facts or matters stated in certificates, etc., unless
requested in writing by Debentureholders . . . . . . . . . .
(g) Trustee not liable for actions in good faith believed to be
authorized . . . . . . . . . . . . . . . . . . . . . . . . .
(h) Trustee not bound to make investigation . . . . . . . . . . .
(i) Trustee may perform duties directly or through agents or
attorneys . . . . . . . . . . . . . . . . . . . . . . . . . .
(j) Application for Instructions . . . . . . . . . . . . . . . .
SECTION 7.03 (a) Trustee not liable for recitals in Indenture or in Debentures
(b) No representations by Trustee as to validity of Indenture or
of Debentures . . . . . . . . . . . . . . . . . . . . . . . .
(c) Trustee not accountable for use of Debentures or proceeds . .
SECTION 7.04 Trustee, paying agent or Debenture Registrar may own Debentures . .
SECTION 7.05 Moneys received by Trustee to be held in trust without interest . .
SECTION 7.06 (a) Trustee entitled to compensation, reimbursement and indemnity
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(b) Obligations to Trustee to be secured by claim prior to
Debentures . . . . . . . . . . . . . . . . . . . . . . . . .
(c) Services in connection with Event of Default . . . . . . . .
SECTION 7.07 Right of Trustee to rely on certificate of officers of Company where
no other evidence specifically prescribed . . . . . . . . . . . . .
SECTION 7.08 Trustee acquiring conflicting interest to eliminate conflict or
resign . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 7.09 Requirements for eligibility of Trustee . . . . . . . . . . . . . .
SECTION 7.10 (a) Resignation of Trustee and appointment of successor . . . . .
(b) Removal of Trustee by Company or by court on Debentureholders'
application . . . . . . . . . . . . . . . . . . . . . . . . .
(c) Removal of Trustee by holders of majority in principal amount
of Debentures . . . . . . . . . . . . . . . . . . . . . . . .
(d) Time when resignation or removal of Trustee effective . . . .
(e) One Trustee for each series . . . . . . . . . . . . . . . . .
SECTION 7.11 (a) Acceptance by successor to Trustee . . . . . . . . . . . . .
(b) Trustee with respect to less than all series . . . . . . . .
(c) Company to confirm Trustee's rights . . . . . . . . . . . . .
(d) Successor Trustee to be qualified . . . . . . . . . . . . . .
(e) Notice of succession . . . . . . . . . . . . . . . . . . . .
SECTION 7.12 Successor to Trustee by merger, consolidation or succession to
business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 7.13 Limitations on rights of Trustee as a creditor to obtain payment of
certain claims within four months prior to default or during default,
or to realize on property as such creditor thereafter . . . . . . .
ARTICLE EIGHT
CONCERNING THE DEBENTUREHOLDERS
SECTION 8.01 Evidence of action by Debentureholders . . . . . . . . . . . . . . .
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SECTION 8.02 Proof of execution of instruments and of holding of Debentures . . .
SECTION 8.03 Who may be deemed owners of Debentures . . . . . . . . . . . . . . .
SECTION 8.04 Debentures owned by Company or controlled or controlling companies
disregarded for certain purposes . . . . . . . . . . . . . . . . . .
SECTION 8.05 Insurements executed by Debentureholders bind future holders . . . .
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01 Purposes for which supplemental indenture may be entered into without
consent of Debentureholders . . . . . . . . . . . . . . . . . . . .
SECTION 9.02 Modification of Indenture with consent of Debentureholder . . . . .
SECTION 9.03 Effect of supplemental indentures . . . . . . . . . . . . . . . . .
SECTION 9.04 Debentures may bear notation of changes by supplemental indentures .
SECTION 9.05 Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE TEN
CONSOLIDATION, MERGER AND SALE
SECTION 10.01 Consolidations or mergers of Company and sales or conveyances of
property of Company permitted . . . . . . . . . . . . . . . . . . .
SECTION 10.02 (a) Rights and duties of successor company . . . . . . . . . . .
(b) Appropriate changes may be made in phraseology and form of
Debentures . . . . . . . . . . . . . . . . . . . . . . . . .
(c) Company may consolidate or merge into itself or acquire
properties of other corporations . . . . . . . . . . . . . .
SECTION 10.03 Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 11.01 Satisfaction and discharge of Indenture . . . . . . . . . . . . . .
SECTION 11.02 Discharge of Company's Obligations . . . . . . . . . . . . . . . . .
SECTION 11.03 Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . .
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SECTION 11.04 Application by Trustee of funds deposited for payment of Debentures
SECTION 11.05 Repayment of moneys held by paying agent . . . . . . . . . . . . . .
SECTION 11.06 Repayment of moneys held by Trustee . . . . . . . . . . . . . . . .
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 12.01 Incorporators, stockholders, officers and directors of Company
exempt from individual liability . . . . . . . . . . . . . . . . . .
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.01 Successors and assigns of Company bound by Indenture . . . . . . . .
SECTION 13.02 Acts of board, committee or officer of successor company valid . . .
SECTION 13.03 Required notices or demands may be served by mail . . . . . . . . .
SECTION 13.04 Indenture and Debentures to be construed in accordance with laws of
the State of New York . . . . . . . . . . . . . . . . . . . . . . .
SECTION 13.05 (a) Officers' Certificate and Opinion of Counsel to be furnished
upon applications or demands by Company . . . . . . . . . . .
(b) Statements to be included in each certificate or opinion with
respect to compliance with condition or covenant . . . . . .
SECTION 13.06 Opinion of Counsel to be furnished upon execution of Indenture . . .
SECTION 13.07 Payments due on Sundays or holidays . . . . . . . . . . . . . . . .
SECTION 13.08 Provisions required by Trust Indenture Act of 1939 to control . . .
SECTION 13.09 Indenture may be executed in counterparts . . . . . . . . . . . . .
SECTION 13.10 Separability of Indenture provisions . . . . . . . . . . . . . . . .
SECTION 13.11 Assignment by Company . . . . . . . . . . . . . . . . . . . . . . .
SECTION 13.12 Agreement that Debentures constitute debt . . . . . . . . . . . . .
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ARTICLE FOURTEEN
SUBORDINATION OF DEBENTURES
SECTION 14.01 Agreement of Subordination . . . . . . . . . . . . . . . . . . . . .
SECTION 14.02 Limitations on payments to Debentureholders . . . . . . . . . . . .
SECTION 14.03 Payments in bankruptcy . . . . . . . . . . . . . . . . . . . . . . .
SECTION 14.04 Subrogation of Debentures . . . . . . . . . . . . . . . . . . . . .
SECTION 14.05 Authorization by Debentureholders . . . . . . . . . . . . . . . . .
SECTION 14.06 Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 14.07 Trustee relation to Senior Indebtedness . . . . . . . . . . . . . .
SECTION 14.08 Acts of holders of Senior Indebtedness . . . . . . . . . . . . . . .
ACCEPTANCE OF TRUST BY TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ACKNOWLEDGMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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THIS INDENTURE, dated as of the 1st day of __________, 1995, between
PORTLAND GENERAL ELECTRIC COMPANY, a corporation duly organized and existing
under the laws of the State of Oregon (hereinafter sometimes referred to as the
"Company"), and THE BANK OF NEW YORK, a New York banking corporation organized
and existing under the laws of the State of New York, as trustee (hereinafter
sometimes referred to as the "Trustee"):
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this indenture to provide for the
issuance of Debentures (as hereinafter defined), in an unlimited aggregate
principal amount, from time to time in one or more series and to provide the
terms and conditions upon which the Debentures are to be authenticated, issued
and delivered; and
WHEREAS, the Debentures and the Certificate of Authentication (as
hereinafter defined) to be borne by the Debentures are to be substantially in
such forms as may be approved by the Board of Directors (as hereinafter
defined) or set forth in any indenture supplemental to this Indenture; and
WHEREAS, all acts and things necessary to make the Debentures issued
pursuant hereto, when executed by the Company and authenticated and delivered
by the Trustee as in this Indenture provided, the valid, binding and legal
obligations of the Company, and to constitute these presents a valid indenture
and agreement according to its terms, have been done and performed or will be
done and performed prior to the issuance of the Debentures, and the execution
of this Indenture and the issuance hereunder of the Debentures have been or
will be prior to issuance in all respects duly authorized, and the Company, in
the exercise of the legal right and power in it vested, executes this Indenture
and proposes to make, execute, issue and deliver the Debentures;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the
Debentures are and are to be authenticated, issued and delivered, and in
consideration of the premises, of the purchase and acceptance of the Debentures
by the holders thereof and of the sum of one dollar ($1.00) to it duly paid by
the Trustee at the execution of these presents, the receipt whereof is hereby
acknowledged, the Company covenants and agrees with the Trustee, for the equal
and proportionate benefit (subject to the provisions of this Indenture) of the
respective holders from time to time of the Debentures, without any
discrimination, preference or priority of any one Debenture over any other by
reason of priority in the time of issue, sale or negotiation thereof, or
otherwise, except as provided herein, as follows:
ARTICLE ONE
Definitions
SECTION 1.01. The terms defined in this Section (except as in this
Indenture otherwise expressly provided or unless the context
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15
otherwise requires) for all purposes of this Indenture, any resolution of the
Board of Directors of the Company and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture which are defined in the Trust Indenture Act, or which
are by reference in the Trust Indenture Act defined in the Securities Act of
1933, as amended (the "Securities Act"), (except as herein otherwise expressly
provided or unless the context otherwise requires), shall have the meanings
assigned to such terms in the Trust Indenture Act and in the Securities Act as
in force at the date of the execution of this instrument.
"Applicant" has the meaning set forth in Section 5.02(c).
"Authenticating Agent" means an authenticating agent with respect to all or any
of the series of Debentures, as the case may be, appointed with respect to all
or any series of the Debentures, as the case may be, by the Trustee pursuant to
Section 2.10.
"Board of Directors" means the Board of Directors of the Company, or any
committee of such Board.
"Board Resolution" means a copy of a resolution certified by the Secretary or
an Assistant Secretary of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification.
"Business Day", with respect to any series of Debentures means any day other
than a day on which banking institutions in the Borough of Manhattan, the City
and State of New York, are authorized to close.
"Certificate" means a certificate signed by the principal executive officer,
principal financial officer, or principal accounting officer of the Company.
The Certificate need not comply with the provisions of Section 13.05(b).
"Commission" means the Securities and Exchange Commission.
"Company" means Portland General Electric Company, a corporation duly organized
and existing under the laws of the State of Oregon, and, subject to the
provisions of Article Ten, also includes its successors and assigns.
"Company Request" or "Company Order" means a written request or order signed in
the name of the Company (i) by its Chairman, its Chief Executive Officer, its
President, its Chief Financial Officer, a Vice President, its Treasurer, or an
Assistant Treasurer, and (ii) its Secretary or an Assistant Secretary and
delivered to the Trustee; provided however, that such written request or order
may be signed by any two of the officers listed in clause (i) above in lieu of
being signed by one of such officers listed in such clause (i) and one of the
officers listed in clause (ii) above.
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16
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date of the execution of this Indenture is located at 101
Barclay Street, New York NY 10286. Attention: Corporate Trust Trustee
Administration.
"Debenture" or "Debentures" means any Debenture or Debentures, as the case may
be, authenticated and delivered under this Indenture.
"Debentureholder", "holder of Debentures", "registered holder" or other similar
term means the person or persons in whose name or names a particular Debenture
shall be registered on the books of the Company kept for that purpose in
accordance with the terms of this Indenture.
"Debenture Register" has the meaning set forth in Section 2.05(b).
"Debenture Registrar" has the meaning set forth in Section 2.05(b).
"Default" means any event, act or condition which with notice or lapse of time,
or both, would constitute an Event of Default.
"Defaulted Interest" has the meaning set forth in Section 2.03.
"Depository" means, with respect to Debentures of any series for which the
Company shall determine that such Debentures will be issued as a Global
Debenture, The Depository Trust Company, New York, New York, another clearing
agency or any successor registered as a clearing agency under the Securities
and Exchange Act of 1934, as amended (the "Exchange Act") or other applicable
statute or regulation, which, in each case, shall be designated by the Company
pursuant to either Section 2.01 or 2.11.
"Event of Default" means, with respect to Debentures of a particular series,
any event specified in Section 6.01, continued for the period of time, if any,
therein designated.
"Global Debenture" means, with respect to any series of Debentures, a Debenture
executed by the Company and delivered by the Trustee to the Depository or
pursuant to the Depository's instruction, all in accordance with the Indenture,
which shall be registered in the name of the Depository or its nominee.
"Governmental Obligations" means securities that are (i) direct obligations of
the United States of America for the payment of which its full faith and credit
is pledged or (ii) obligations of a person controlled or supervised by and
acting as an agency or instrumentality of the United States of America, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such Governmental
Obligation or a specific payment of principal of or interest on any such
Governmental Obligation
3
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held by such custodian for the account of the holder of such depository
receipt; provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
specific payment of principal of or interest on the Governmental Obligation
evidenced by such depository receipt.
"Indenture" means this instrument as originally executed, or, if amended or
supplemented as herein provided, as so amended or supplemented.
"Interest Payment Date", when used with respect to any installment of interest
on a Debenture of a particular series, means the date specified in such
Debenture, a Board Resolution or an indenture supplemental hereto with respect
to that series as the fixed date on which an installment of interest with
respect to Debentures of that series is due and payable.
"Officers' Certificate" means a certificate signed by (i) the Chairman, the
Chief Executive Officer, the President, the Chief Financial Officer, a Vice
President, the Treasurer or the Assistant Treasurer of the Company and (ii) the
Secretary or an Assistant Secretary of the Company and delivered to the
Trustee; provided, however, that such certificate may be signed by two of the
officers listed in clause (i) above in lieu of being signed by one of such
officers listed in such clause (i) and one of the officers listed in clause
(ii) above.
"Opinion of Counsel" means an opinion in writing signed by legal counsel, who
may be counsel for the Company, reasonably acceptable to the Trustee. Each
such opinion shall include the statements provided for in Section 13.05, if and
to the extent required by the provisions thereof.
"Outstanding", when used with reference to Debentures of any series, means.
subject to the provisions of Section 8.04, as of any particular time, all
Debentures of that series theretofore authenticated and delivered by the
Trustee under this Indenture, except (a) Debentures theretofore canceled by the
Trustee or any paying agent, or delivered to the Trustee or any paying agent
for cancellation or which have previously been canceled; (b) Debentures or
portions thereof for the payment or redemption of which moneys or Governmental
Obligations in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or shall have been
set aside and segregated in trust by the Company (if the Company shall act as
its own paying agent); provided, however, that if such Debentures or portions
of such Debentures are to be redeemed prior to the maturity thereof, notice of
such redemption shall have been given as in Article Three provided, or
provision satisfactory to the Trustee shall have been made for giving such
notice; (c) Debentures in lieu of or in substitution for which other Debentures
shall have been authenticated and delivered pursuant to the terms of Section
2.07; and (d) Debentures paid pursuant to Section 2.07.
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"Predecessor Debenture" of any particular Debenture means every previous
Debenture evidencing all or a portion of the same debt as that evidenced by
that particular Debenture; and, for the purposes of this definition, any
Debenture authenticated and delivered under Section 2.07 in lieu of a lost,
destroyed or stolen Debenture shall be deemed to evidence the same debt as the
lost, destroyed or stolen Debenture.
"Regular Record Date" has the meaning set forth in Section 2.03.
"Responsible Officer", when used with respect to the Trustee, means the
chairman of the board of directors, president, any vice president, secretary,
treasurer, any trust officer, any corporate trust officer or any other officer
or assistant officer of the Trustee customarily performing functions similar to
those performed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of his
or her knowledge of and familiarity with the particular subject.
"Senior Indebtedness" of the Company means the principal of, and premium, if
any, and interest on and any other payment or obligations due pursuant to any
of the following, whether outstanding at the date of execution of this
Indenture or thereafter incurred, created or assumed: (a) all indebtedness of
the Company for money borrowed, (b) all indebtedness evidenced by notes,
debentures, bonds, securities or other similar instruments issued by the
Company, (c) all capital lease obligations of the Company, (d) all obligations
of the Company issued or assumed as the deferred purchase price of property,
all conditional sales obligations of the Company and all obligations of the
Company under any title retention agreement (excluding trade accounts payable
arising in the ordinary course of business), (e) obligations of the Company for
the reimbursement of any obligor on any letter of credit, banker's acceptance,
security purchase facility, surety bond or similar credit transaction entered
into in the ordinary course of business of the Company, (f) all indebtedness
and obligations of others of the kinds described in clauses (a) through (e)
assumed by or guaranteed in any manner by the Company or in effect guaranteed
by the Company through an agreement to purchase, contingent or otherwise, and
(g) all renewals, extensions or refundings of indebtedness of the kinds
described in clauses (a) through (f) unless, in the case of any particular
indebtedness, obligation, renewal, extension or refunding, the instrument
creating or evidencing the same or the assumption or guarantee of the same
expressly provides that such indebtedness, obligation, renewal, extension or
refunding is not superior in right of payment to or is pari passu with the
Debentures. Such Senior Indebtedness shall continue to be Senior Indebtedness
and entitled to the benefits of the subordination provisions set forth in
Article Fourteen of this Indenture irrespective of any amendment, modification
or waiver of any term of such Senior Indebtedness.
"Trustee" means The Bank of New York and, subject to the provisions of Article
Seven, shall also include its successors and assigns,
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and if at any time there is more than one person acting in such capacity
hereunder, "Trustee" means each such person. The term "Trustee" as used with
respect to a particular series of the Debentures means the trustee with respect
to that series.
"Trust Indenture Act," subject to the provisions of Sections 9.01, 9.02 and
10.01, means the Trust Indenture Act of 1939, as amended and in effect at the
date of execution of this Indenture.
"Vice President", when used with respect to the Company or the Trustee, means
any vice president, whether or not designated by a number or a word or words
added before or after the title "vice president".
ARTICLE TWO
Issue, Description, Terms, Execution,
Registration and Exchange of Debentures
SECTION 2.01. The aggregate principal amount of Debentures which
may be authenticated and delivered under this Indenture is unlimited.
The Debentures may be issued in one or more series pursuant to one or
more indentures supplemental hereto. Prior to the initial issuance of
Debentures of any series, there shall be established in or pursuant to a Board
Resolution delivered to the Trustee, or by any officer of the Company
designated in a Board Resolution delivered to the Trustee, and set forth in an
Officers' Certificate delivered to the Trustee, or established in one or more
indentures supplemental hereto from time to time authorized by or pursuant to a
Board Resolution delivered to the Trustee:
(1) the title of the Debentures of the series (which
shall distinguish the Debentures of that series from all other
Debentures);
(2) the aggregate principal amount of the Debentures of
that series which may be authenticated and delivered under this
Indenture (except for Debentures authenticated and delivered upon
registration of transfer of, in exchange for or in lieu of other
Debentures of that series);
(3) the date or dates on which the principal of the
Debentures of that series is payable;
(4) the rate or rates at which the Debentures of that
series shall bear interest or the manner of calculation of such rate
or rates, if any;
(5) the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest will be
payable or the manner of determination of such Interest Payment Dates
and the record date for the determination of holders to whom interest
is payable on any such Interest Payment Dates;
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(6) the right, if any, to extend the interest payment
periods and the duration of such extension;
(7) the period or periods within which, the price or
prices at which and the terms and conditions upon which Debentures of
that series may be redeemed, in whole or in part, at the option of the
Company;
(8) The obligation, if any, of the Company to redeem or
purchase Debentures of that series pursuant to any sinking fund or
analogous provisions (including payments made in cash in anticipation
of future sinking fund obligations) or at the option of a holder
thereof and the period or periods within which, the price or prices at
which and the terms and conditions upon which, Debentures of that
series shall be redeemed or purchased, in whole or in part, pursuant
to such obligation;
(9) the form of the Debentures of that series, including
the form of the Certificate of Authentication for that series;
(10) if denominations of other than $25 or any integral
multiple thereof, the denominations in which Debentures of that series
shall be issuable;
(11) any and all other terms with respect to that series
(which terms shall not be inconsistent with the terms of this
Indenture); and
(12) whether the Debentures are issuable as a Global
Debenture and, in such case, the identity of the Depository for that
series.
All Debentures of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to any such Board Resolution or in any indentures supplemental hereto.
If any of the terms of a series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of that series.
SECTION 2.02. The Debentures of any series and the Certificate of
Authentication to be borne by such Debentures shall be substantially of the
tenor and purport as set forth in one or more indentures supplemental hereto or
as provided in a Board Resolution and as set forth in an Officers' Certificate,
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as the Company may deem appropriate and as are not inconsistent with
the provisions of this Indenture, or as may be required to comply with any law
or with any rule or regulation
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made pursuant thereto or with any rule or regulation of any stock exchange on
which Debentures of that series may be listed, or to conform to usage.
SECTION 2.03. The Debentures of a particular series shall bear
interest payable on the dates and at the rate or rates specified with respect
to that series. The principal of and the interest on the Debentures of any
series, as well as any premium thereon in case of redemption thereof prior to
maturity, shall be payable in the coin or currency of the United States of
America which at the time is legal tender for public and private debt, at the
office or agency of the Company maintained for that purpose in the Borough of
Manhattan, the City and State of New York (which, unless changed, shall be a
corporate trust office or agency of the Trustee). At the Company's option,
payments on the Debentures of any series may also be made (i) by checks mailed
by the Trustee to the holders entitled thereto at their registered addresses or
(ii) to a holder of $ 1,000,000 or more in aggregate principal amount of the
Debentures who has delivered a written request to the Trustee at least 14 days
prior to the relevant Interest Payment Date electing to have payments made by
wire transfer to a designated account in the United States, by wire transfer of
immediately available funds to such designated account; provided that, in
either case, the payment of principal with respect to any Debenture will be
made only upon surrender of that Debenture to the Trustee. Each Debenture
shall be dated the date of its authentication. Interest on the Debentures
shall be computed on the basis of a 360-day year composed of twelve 30-day
months and, for any period shorter than a full calendar month, on the basis of
the actual number of days elapsed in such period.
The interest installment on any Debenture which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date for
Debentures of that series shall be paid to the person in whose name that
Debenture (or one or more Predecessor Debentures) is registered at the close of
business on the Regular Record Date (as defined below) for such interest
installment. In the event that any Debenture of a particular series or portion
thereof is called for redemption and the redemption date is subsequent to a
Regular Record Date with respect to any Interest Payment Date and prior to such
Interest Payment Date, interest on that Debenture will be paid upon
presentation and surrender of that Debenture as provided in Section 3.03.
Any interest on any Debenture which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date for Debentures of the
same series (herein called "Defaulted Interest") shall forthwith cease to be
payable to the registered holder on the relevant Regular Record Date by virtue
of having been such holder; and such Defaulted Interest shall be paid by the
Company, at its election, as provided in clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted
Interest on Debentures to the persons in whose names such
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Debentures (or their respective Predecessor Debentures) are registered
at the close of business on a special record date for the payment of
such Default Interest, which shall be fixed in the following manner:
the Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each such Debenture and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a special record date for the payment of such Defaulted
Interest which shall not be 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 Debentureholder at his or her address as it appears in the
Debenture Register (as hereinafter defined), 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 such Debentures (or their respective
Predecessor Debentures) are registered on such special record date and
shall be no longer payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted
Interest on any Debentures in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Debentures may be listed, and upon such notice as may be required by
such exchange if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution or one or more
indentures supplemental hereto establishing the terms of any series of
Debentures pursuant to Section 2.01 hereof, the term "Regular Record Date" as
used in this Section with respect to a series of Debentures with respect to any
Interest Payment Date for that series shall mean either the 15th day of the
month immediately preceding the month in which an Interest Payment Date
established for that series pursuant to Section 2.01 hereof shall occur, if
such Interest Payment Date is the first day of a month, or the last day of the
month immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof shall occur, if
such Interest Payment Date is
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the 15th day of a month, whether or not such date is a Business Day.
Subject to the foregoing provisions of this Section, each Debenture of
a series delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Debenture of such series shall carry the rights to
interest accrued and unpaid, and to accrue, that were carried by such other
Debenture.
SECTION 2.04. The Debentures shall, subject to the provisions of
Section 2.06, be printed with or without fully or partially steel engraved
borders, or legibly typed, or otherwise prepared as the proper officers of the
Company may determine, and shall be signed on behalf of the Company by its
Chief Executive Officer, President or one of its Vice Presidents, under its
corporate seal attested by its Secretary or one of its Assistant Secretaries.
The signature of the Chief Executive Officer, President or a Vice President
and/or the signature of the Secretary or an Assistant Secretary in attestation
of the corporate seal, upon the Debentures, may be in the form of a facsimile
signature of a present or any future Chief Executive Officer, President or Vice
President and of a present or any future Secretary or Assistant Secretary and
may be imprinted or otherwise reproduced on the Debentures and for that purpose
the Company may use the facsimile signature of any person who shall have been
such an officer, notwithstanding the fact that at the time the Debentures shall
be authenticated and delivered or disposed of that person shall have ceased to
hold such office. The seal of the Company may be in the form of a facsimile or
the seal of the Company and may be impressed, affixed, imprinted or otherwise
reproduced on the Debentures.
Only such Debentures as shall bear thereon a Certificate of
Authentication substantially in the form established for such Debentures,
executed manually by an authorized signatory of the Trustee, or by any
Authenticating Agent with respect to such Debentures, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. Such
certificate executed by the Trustee, or by any Authenticating Agent appointed
by the Trustee with respect to such Debentures, upon any Debenture executed by
the Company shall be conclusive evidence that the Debenture so authenticated
has been duly authenticated and delivered hereunder and that the holder is
entitled to the benefits of this Indenture.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debentures of any series executed by
the Company to the Trustee for authentication upon original issuance, together
with a Company Order for the authentication and delivery of such Debentures,
and the Trustee in accordance with such Company Order shall authenticate and
deliver such Debentures.
In authenticating such Debentures and accepting the additional
responsibilities under this Indenture in relation to such
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Debentures, the Trustee shall be entitled to receive, and (subject to Section
7.01) shall be fully protected in relying upon, (i) an Opinion of Counsel and
(ii) an Officers' Certificate, each stating that the form and terms thereof
have been established in conformity with the provisions of this Indenture.
Each Opinion of Counsel and Officers' Certificate delivered pursuant to this
Section 2.04 shall include all statements prescribed by Section 13.05(a) and
Section 13.05(b) hereof.
The Trustee shall not be required to authenticate such Debentures if
the issue of such Debentures pursuant to this Indenture will, in the good faith
judgment of the Trustee, affect the Trustee's own rights, duties or immunities
under the Debentures and this Indenture or otherwise in a manner that is not
reasonably acceptable to the Trustee.
SECTION 2.05. (a) Debentures of any series may be exchanged upon
presentation thereof at the office or agency of the Company designated for such
purpose in the Borough of Manhattan, the City and State of New York, for other
Debentures of such series of authorized denominations, and for a like aggregate
principal amount, upon payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, all as provided in this Section. In
respect of any Debentures so surrendered for exchange, the Company shall
execute, the Trustee shall authenticate and such office or agency shall deliver
in exchange therefor the Debenture or Debentures of the same series which the
Debentureholder making the exchange shall be entitled to receive, bearing
numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its office or
agency designated for such purpose in the Borough of Manhattan, the City and
State of New York, or such other location designated by the Company, a register
or registers (herein referred to as the "Debenture Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall register
the Debentures and the transfers of Debentures as in this Article provided and
which at all reasonable times shall be open for inspection by the Trustee. The
registrar for the purpose of registering Debentures and transfer of Debentures
as herein provided (the "Debenture Registrar") shall be the Trustee until a
replacement is appointed as authorized by Board Resolution.
Upon surrender for transfer of any Debenture at the office or agency
of the Company designated for such purpose in the Borough of Manhattan, the
City and State of New York, the Company shall execute, the Trustee shall
authenticate and such office or agency shall deliver in the name of the
transferee or transferees a new Debenture or Debentures of the same series as
the Debenture presented for a like aggregate principal amount.
All Debentures presented or surrendered for exchange or registration
of transfer, as provided in this Section, shall be accompanied (if so required
by the Company or the Debenture Registrar) by a written instrument or
instruments of transfer, in
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form satisfactory to the Company and the Debenture Registrar, duly executed by
the registered holder or by his duly authorized attorney in writing.
(c) Except as provided in the first paragraph of Section 2.07, no
service charge shall be made for any exchange or registration of transfer of
Debentures, or issue of new Debentures in case of partial redemption of any
series, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge in relation thereto, other than exchanges
pursuant to Section 2.06, Section 3.03 and Section 9.04 not involving any
transfer.
(d) The Company shall neither be required (i) to issue, exchange
or register the transfer of any Debentures of any series during a period
beginning at the opening of business 15 days before the day of selection for
redemption of Debentures of that series and ending at the close of business on
the earliest date on which the relevant notice of redemption is deemed to have
been given to all holders of Debentures of that series to be redeemed, nor (ii)
to register the transfer of or exchange any Debentures of any series or
portions thereof called for redemption. The provisions of this Section 2.05
are, with respect to any Global Debenture, subject to Section 2.11 hereof.
SECTION 2.06. Pending the preparation of definitive Debentures of
any series, the Company may execute, and the Trustee shall authenticate and
deliver, temporary Debentures (printed, lithographed or typewritten) of any
authorized denomination, and substantially in the form of the definitive
Debentures in lieu of which they are issued, but with such omissions,
insertions and variations as may be appropriate for temporary Debentures, all
as may be determined by the Company. Every temporary Debenture of any series
shall be executed by the Company and be authenticated by the Trustee upon the
same conditions and in substantially the same manner, and with like effect, as
the definitive Debentures of that series in accordance with the terms of
Section 2.04 hereof. Without unnecessary delay the Company will execute and
will furnish definitive Debentures of such series and thereupon any or all
temporary Debentures of that series may be surrendered in exchange therefor
(without charge to the holders), at the office or agency of the Company
designated for the purpose in the Borough of Manhattan, the City and State of
New York, and the Trustee shall authenticate and such office or agency shall
deliver in exchange for such temporary Debentures an equal aggregate principal
amount of definitive Debentures of that series, unless the Company advises the
Trustee to the effect that definitive Debentures need not be executed and
furnished until further notice from the Company. Until so exchanged, the
temporary Debentures of that series shall be entitled to the same benefits
under this Indenture as definitive Debentures of that series authenticated and
delivered hereunder.
SECTION 2.07. In case any temporary or definitive Debenture shall
become mutilated or be destroyed, lost or stolen, the Company (subject to the
next succeeding sentence) shall execute, and upon
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its request the Trustee (subject as aforesaid) shall authenticate and deliver,
a new Debenture of the same series bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Debenture, or in
lieu of and in substitution for the Debenture so destroyed, lost or stolen. In
every case the applicant for a substituted Debenture shall furnish to the
Company and to the Trustee such security or indemnity as may be required by
them to save each of them harmless and, in every case of destruction, loss or
theft, the applicant shall also furnish to the Company and to the Trustee
evidence to their satisfaction of the destruction, loss or theft of the
applicant's Debenture and of the ownership thereof. The Trustee may
authenticate any such substituted Debenture and deliver the same upon the
written order of the Company. Upon the issuance of any substituted Debenture,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
In case any Debenture which has matured or is about to mature or has been
called for redemption shall become mutilated or be destroyed, lost or stolen,
the Company may, instead of issuing a substitute Debenture, pay or authorize
the payment of the same (without surrender thereof except in the case of a
mutilated Debenture) if the applicant for such payment shall furnish to the
Company and to the Trustee such security or indemnity as they may require to
save them harmless and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction, loss or theft
of such Debenture and of the ownership thereof.
Every Debenture issued pursuant to the provisions of this Section in
substitution for any Debenture which is mutilated, destroyed, lost or stolen
shall constitute an additional contractual obligation of the Company, whether
or not the mutilated, destroyed, lost or stolen Debenture shall be found at any
time, or be enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Debentures of
the same series duly issued hereunder. All Debentures shall be held and owned
upon the express condition that the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Debentures, and shall preclude (to the extent lawful) any and all other rights
or remedies, notwithstanding any law or statute existing or hereafter enacted
to the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 2.08. All Debentures surrendered for the purpose of
payment, redemption, exchange or registration of transfer shall, if surrendered
to the Company or any paying agent, be delivered to the Trustee for
cancellation, or, if surrendered to the Trustee, shall be canceled by it, and
no Debentures shall be issued in lieu thereof except as expressly required or
permitted by any of the provisions of this Indenture. On request of the
Company, the Trustee shall deliver to the Company canceled Debentures held by
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the Trustee. In the absence of such request the Trustee may dispose of
canceled Debentures in accordance with its standard procedures. If the Company
shall otherwise acquire any of the Debentures, however, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by
such Debentures unless and until the same are delivered to the Trustee for
cancellation.
SECTION 2.09. Nothing in this Indenture or in the Debentures,
express or implied, shall give or be construed to give to any person, firm or
corporation, other than the parties hereto and the holders of the Debentures,
any legal or equitable right, remedy or claim under or in respect of this
Indenture, or under any covenant, condition or provision herein contained; all
such covenants, conditions and provisions being for the sole benefit of the
parties hereto and of the holders of the Debentures.
SECTION 2.10. So long as any of the Debentures of any series remain
outstanding there may be an Authenticating Agent for any or all such series of
Debentures which the Trustee shall have the right to appoint. Said
Authenticating Agent shall be authorized to act on behalf of the Trustee to
authenticate Debentures of such series issued upon exchange, transfer or
partial redemption thereof, and Debentures so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. All references in this
Indenture to the authentication of Debentures of any series by the Trustee
shall be deemed to include authentication by an Authenticating Agent for such
series except for authentication upon original issuance or pursuant to Section
2.07 hereof. Each Authenticating Agent shall be acceptable to the Company and
shall be a corporation which has a combined capital and surplus, as most
recently reported or determined by it, of $50 million, and which is otherwise
authorized under applicable laws to conduct a trust business and is subject to
supervision or examination by federal or state authorities. If at any time any
Authenticating Agent shall cease to be eligible in accordance with these
provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at
any time (and upon request by the Company shall) terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may appoint
an eligible successor Authenticating Agent acceptable to the Company. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder as if originally named as an Authenticating Agent pursuant hereto.
SECTION 2.11. (a) If the Company shall establish pursuant to
Section 2.01 that the Debentures of a particular series are to be issued as a
Global Debenture, then the Company shall execute and
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the Trustee shall, in accordance with Section 2.04, authenticate and deliver, a
Global Debenture which (i) shall represent, and shall be denominated in an
amount equal to the aggregate principal amount of, all of the Outstanding
Debentures of that series, (ii) shall be registered in the name of the
Depository or its nominee, (iii) shall be delivered by the Trustee to the
Depository or pursuant to the Depository's instruction and (iv) if required by
any law, rule or regulation or if any of the Depository, the Trustee or the
Company shall require, shall bear a legend substantially to the following
effect: "Except as otherwise provided in Section 2.11 of the Indenture, this
Debenture may be transferred, in whole but not in part, only to another nominee
of the Depository or to a successor Depository or to a nominee of such
successor Depository."
(b) Notwithstanding the provisions of Section 2.05 and except as
set forth in Section 2.11(c) or (d), the Global Debenture of a series may be
transferred, in whole but not in part and in the manner provided in Section
2.05, only to another nominee of the Depository for that series, a successor
Depository for that series selected or approved by the Company or a nominee of
that successor Depository.
(c) (i) Except as otherwise set forth in any indenture
supplemental to this Indenture with respect to any series of
Debentures issued hereunder, an interest in any Global
Debenture shall be exchangeable at the option of the
beneficial owner of such interest in such Global Debenture for
a definitive Debenture or Debentures registered in the name of
any holder other than the Depository or its nominee at any
time following issuance of such Global Debenture.
(ii) A beneficial owner of an interest in any Global
Debenture desiring to exchange such beneficial
interest for a definitive Debenture or Debentures
shall instruct the Depository, through the
Depository's direct or indirect participants or
otherwise, to request such exchange on such
beneficial owner's behalf and to provide a written
order containing registration instructions to the
Trustee. Upon receipt by the Trustee of electronic
or written instructions from the Depository on behalf
of such beneficial owner, the Trustee shall cause, in
accordance with the standing instructions and
procedures existing between the Trustee and the
Depository, the aggregate principal amount of such
Global Debenture to be reduced by the principal
amount of such beneficial interest so exchanged and
shall appropriately reflect such reduction of the
aggregate principal amount of such Global Debenture
as described in paragraph (iii) of this Section
2.11(c). Following such reduction, the Trustee shall
authenticate and deliver to such beneficial owner or
a transferee of such beneficial owner, as the case
may be, a definitive Debenture or Debentures
previously executed by the Company as described in
Section 2.05(a)
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and registered in such names and authorized denominations
as the Depository, pursuant to such instructions of the
beneficial owner, shall instruct the Trustee.
(iii) Upon any exchange of a portion of any Global Debenture
for a definitive Debenture or Debentures, the Debenture
Registrar shall reflect the reduction of the principal amount
of such Global Debenture by the principal amount of such
beneficial interest so exchanged on the Debenture Register.
Until exchanged in full for definitive Debentures, such Global
Debenture shall in all respects be entitled to the same
benefits under the Indenture as the definitive Debentures
authenticated and delivered hereunder.
(d) (i) Except as otherwise set forth in any indenture
supplemental to this Indenture with respect to any series of
Debentures issued hereunder, if and so long as the Debentures
of any series are issued as a Global Debenture, any definitive
Debenture or Debentures of such series shall be exchangeable
at the option of the registered holder thereof for a
beneficial interest in such Global Debenture at any time
following the exchange of such Global Debenture for such
definitive Debenture or Debentures pursuant to Section
2.11(c).
(ii) A registered holder of a definitive Debenture or
Debentures desiring to exchange such definitive Debenture or
Debentures for a beneficial interest in such Global Debenture
shall instruct the Depository, through the Depository's direct
or indirect participants or otherwise, to request such
exchange on such registered holder's behalf and to provide a
written order containing registration instructions to the
Trustee. Upon receipt by the Trustee of electronic or written
instructions from the Depository, and upon presentation to the
Trustee of such definitive Debenture or Debentures, the
Trustee shall cause, in accordance with the standing
instructions and procedures existing between the Trustee and
the Depository, the aggregate principal amount of such Global
Debenture to be increased by the principal amount of such
definitive Debenture or Debentures so exchanged and shall
appropriately reflect such increase of the aggregate principal
amount of the Global Debenture as described in paragraph(iii)
of this Section 2.11(d).
(iii) Upon any exchange of a definitive Debenture or
Debentures for a beneficial interest in such Global Debenture,
the Debenture Registrar shall reflect the increase of the
principal amount of such Global Debenture by the principal
amount of such definitive Debenture or Debentures so exchanged
on the Debenture Register.
(e) If at any time the Depository for a series of Debentures
notifies the Company that it is unwilling or unable to continue as
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Depository for that series or if at any time the Depository for that series
shall no longer be registered or in good standing under the Exchange Act or
other applicable statute or regulation and a successor Depository for that
series is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition as the case may be,
this Section 2.11 shall no longer apply to the Debentures of that series and
the Company will execute and, subject to Section 2.05, the Trustee will
authenticate and deliver Debentures of that series in definitive registered
form without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Debenture of that
series in exchange for such Global Debenture. In addition, the Company may at
any time determine that the Debentures of any series shall no longer be
represented by a Global Debenture and that the provisions of this Section 2.11
shall no longer apply to the Debentures of that series. In that event the
Company will execute and, subject to Section 2.05, the Trustee, upon receipt of
an Officers' Certificate evidencing such determination by the Company, will
authenticate and deliver Debentures of that series in definitive registered
form without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Debenture of such
series in exchange for such Global Debenture. Upon the exchange of the Global
Debenture for such Debentures in definitive registered form without coupons, in
authorized denominations, the Global Debentures shall be canceled by the
Trustee. Such Debentures in definitive registered form issued in exchange for
the Global Debenture pursuant to Section 2.11(c) shall be registered in such
names and in such authorized denominations as the Depository, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Debenture Registrar. The Trustee shall deliver such Debentures to
the Depository for delivery to the persons in whose names such Debentures are
so registered.
ARTICLE THREE
Redemption of Debentures and Sinking Fund Provisions
SECTION 3.01. The Company may redeem the Debentures of any series
issued hereunder on and after the dates and in accordance with the terms
established for that series pursuant to Section 2.01 hereof.
SECTION 3.02. (a) In case the Company shall desire to exercise
such right to redeem all or, as the case may be, a portion of the Debentures of
any series in accordance with the right reserved so to do, it shall give notice
of such redemption to holders of the Debentures of the series to be redeemed by
mailing, first class postage prepaid, a notice of such redemption not less than
30 days and not more than 60 days before the date fixed for redemption of that
series to such Debentureholders at their last addresses as they shall appear
upon the Debenture Register. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
the registered holder receives the notice. In any case, failure duly to give
such notice to the holder of any Debenture of any series
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designated for redemption in whole or in part, or any defect in the notice
shall not affect the validity of the proceedings for the redemption of any
other Debentures of that series or any other series. In the case of any
redemption of Debentures prior to the expiration of any restriction on such
redemption provided in the terms of such Debentures or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with any such restriction.
Each such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Debentures of that series are to
be redeemed, and shall state that payment of the redemption price of the
Debentures to be redeemed will be made at the office or agency of the Company
in the Borough of Manhattan, the City and State of New York, upon presentation
and surrender of such Debentures, that interest accrued to the date fixed for
redemption will be paid as specified in that notice, that from and after that
date interest will cease to accrue, and that, if such is the case, the
redemption is for a sinking fund. If less than all the Debentures of a series
are to be redeemed, the notice to the holders of Debentures of that series to
be redeemed shall specify the particular Debentures to be so redeemed. In case
any Debenture is to be redeemed in part only, the notice which relates to such
Debenture shall state the portion of the principal amount thereof to be
redeemed, and shall state that on and after the redemption date, upon surrender
of such Debenture, a new Debenture or Debentures of that series in principal
amount equal to the unredeemed portion thereof will be issued.
(b) The Company shall give the Trustee at least 45 days' advance
notice of the date fixed for redemption (unless shorter notice shall be
permitted by the Trustee) as to the aggregate principal amount of Debentures of
the series to be redeemed, and thereupon the Trustee shall select, by lot or in
such other manner as it shall deem appropriate and fair in its discretion and
which may provide for the selection of a portion or portions (equal to $25 or
any integral multiple thereof) of the principal amount of such Debentures of a
denomination larger than $25, the Debentures to be redeemed and shall
thereafter promptly notify the Company in writing of the numbers of the
Debentures to be redeemed.
The Company may, if and whenever it shall so elect, by delivery of a
Company Request, instruct the Trustee or any paying agent to call all or any
part of the Debentures of a particular series for redemption and to give notice
of redemption in the manner set forth in this Section, such notice to be in the
name of the Company, the name of the Trustee or such paying agent as the
Trustee may deem advisable. In any case in which notice of redemption is to be
given by the Trustee or any such paying agent, the Company shall deliver or
cause to be delivered to, or permit to remain with, the Trustee or such paying
agent, as the case may be, such Debenture Register, transfer books or other
records, or suitable copies or extracts therefrom, sufficient to enable the
Trustee or such paying agent to give any notice by mail that may be required
under the provisions of this Section.
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SECTION 3.03. (a) If the giving of notice of redemption shall have
been completed as above provided, the Debentures or portions of Debentures of
the series to be redeemed specified in such notice shall become due and payable
on the date and at the place stated in such notice at the applicable redemption
price, together with interest accrued to the date fixed for redemption, and
interest on such Debentures or portions of Debentures shall cease to accrue on
and after the date fixed for redemption, unless the Company shall default in
the payment of such redemption price and accrued interest with respect to any
such Debenture or portion thereof. On presentation and surrender of such
Debentures on or after the date fixed for redemption at the place of payment
specified in the notice, such Debentures shall be paid and redeemed at the
applicable redemption price for such series, together with interest accrued
thereon to the date fixed for redemption (but if the date fixed for redemption
is an interest payment date, the interest installment payable on such date
shall be payable to the registered holder at the close of business on the
applicable record date pursuant to Section 2.03).
(b) Upon presentation of any Debenture of such series which is to
be redeemed in part only, the Company shall execute, the Trustee shall
authenticate and the office or agency where the Debenture is presented shall
deliver to the holder thereof, at the expense of the Company, a new Debenture
or Debentures of the same series, of authorized denominations in principal
amount equal to the unredeemed portion of the Debenture so presented.
SECTION 3.04. The provisions of Sections 3.04, 3.05 and 3.06 shall
apply to any sinking fund for the retirement of Debentures of a series, except
as otherwise specified pursuant to Section 2.01 for Debentures of that series.
The minimum amount of any sinking fund payment provided for by the
terms of Debentures of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Debentures of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Debentures of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 3.05. Each sinking fund payment shall be applied to the
redemption of Debentures of any series as provided for by the terms of
Debentures of that series.
SECTION 3.05. The Company (i) may deliver Outstanding Debentures of a
series (other than any previously called for redemption) and (ii) may apply as
a credit Debentures of a series which have been redeemed either at the election
of the Company pursuant to the terms of such Debentures or through the
application of permitted optional sinking fund payments pursuant to the terms
of such Debentures, in each case in satisfaction of all or any part of any
sinking fund payment with respect to the Debentures of such series required to
be made pursuant to the terms of such Debentures as provided for by the terms
of that series; provided that such Debentures have not been previously so
credited. Such Debentures
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shall be received and credited for such purpose by the Trustee at the
redemption price specified in such Debentures for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be
reduced accordingly.
SECTION 3.06. Not less than 45 days prior to each sinking fund
payment date for any series of Debentures, the Company will deliver to the
Trustee an Officers' Certificate specifying the amount of the next ensuing
sinking fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by delivering and crediting
Debentures of that series pursuant to Section 3.05 and the basis for such
credit and will, together with such Officers' Certificate, deliver to the
Trustee any Debentures to be so delivered. Not less than 30 days before each
such sinking fund payment date the Trustee shall select the Debentures to be
redeemed upon such sinking fund payment date in the manner specified in Section
3.02 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 3.02. Such
notice having been duly given, the redemption of such Debentures shall be made
upon the terms and in the manner stated in Section 3.03.
ARTICLE FOUR
Particular Covenants of the Company
The Company covenants and agrees for each series of the Debentures as
follows:
SECTION 4.01. The Company will duly and punctually pay or cause to
be paid the principal of (and premium, if any) and interest on the Debentures
of that series at the time and place and in the manner provided herein, and
established with respect to such Debentures.
SECTION 4.02. So long as any series of the Debentures remains
outstanding, the Company agrees to maintain an office or agency in the Borough
of Manhattan, the City and State of New York (which, unless changed, shall be a
corporate trust office or agency of the Trustee), with respect to each such
series, and at such other location or locations, as may be designated by the
Company, where (i) Debentures of that series may be presented for payment, (ii)
Debentures of that series may be presented as hereinabove authorized for
registration of transfer and exchange and (iii) notices and demands to or upon
the Company in respect of the Debentures of that series and this Indenture may
be given or served, such designation to continue with respect to such office or
agency until the Company shall, by Company Order delivered to the Trustee,
designate some other office or agency for such purposes or any of them. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, notices and demands.
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SECTION 4.03. (a) If the Company shall appoint one or more paying
agents, other than the Trustee, for all or any series of the Debentures, the
Company will cause each such paying agent to execute and deliver to the Trustee
an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section, that it will:
(1) hold all sums held by it as such agent for the
payment of the principal of (and premium, if any) or interest on the
Debentures of that series (whether such sums have been paid to it by
the Company or by any other obligor of such Debentures) in trust for
the benefit of the persons entitled thereto;
(2) give the Trustee notice of any failure by the Company
(or by any other obligor of such Debentures) to make any payment of
the principal of (and premium, if any) or interest on the Debentures
of that series when the same shall be due and payable;
(3) at any time during the continuance of any failure
referred to in the preceding paragraph (a)(2) above, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held
in trust by such paying agent; and
(4) perform all other duties of paying agent as set forth
in this Indenture.
(b) If the Company shall act as its own paying agent with respect
to any series of the Debentures, it will, on or before each due date of the
principal of (and premium, if any) or interest on Debentures of that series,
set aside, segregate and hold in trust for the benefit of the persons entitled
thereto a sum sufficient to pay such principal (and premium, if any) or
interest so becoming due on Debentures of that series until such sums shall be
paid to such persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of such action, or any failure (by it or any other
obligor on such Debentures) to take such action. Whenever the Company shall
have one or more paying agents for any series of Debentures, it will, prior to
each due date of the principal of (and premium, if any) or interest on any
Debentures of that series, deposit with the paying agent a sum sufficient to
pay the principal (and premium, if any) or interest so becoming due, such sum
to be held in trust for the benefit of the persons entitled to such principal,
premium or interest, and (unless such paying agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
(c) Anything in this Section to the contrary notwithstanding, (i)
the agreement to hold sums in trust as provided in this Section is subject to
the provisions of Section 11.06 and (ii) the Company may at any time, for the
purpose of obtaining the satisfaction and discharge of this Indenture or for
any other purpose, pay, or direct any paying agent to pay, to the Trustee all
sums held in trust by the Company or such paying agent, such sums to be held by
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the Trustee upon the same terms and conditions as those upon which such sums
were held by the Company or such paying agent; and, upon such payment by any
paying agent to the Trustee, such paying agent shall be released from all
further liability with respect to such sums.
SECTION 4.04. The Company, whenever necessary to avoid or fill a
vacancy in the office of Trustee, will appoint, in the manner provided in
Section 7.10, a Trustee, so that there shall at all times be a Trustee
hereunder.
SECTION 4.05. The Company will not, while any of the Debentures
remain outstanding, consolidate with, merge into, merge into itself or sell or
convey all or substantially all of its property to any other company, unless
the provisions of Article Ten hereof are complied with.
SECTION 4.06. If there shall have occurred any event that would,
with the giving of notice or the passage of time, or both, constitute an Event
of Default under the Indenture, or the Company shall have given notice of its
selection of an extended interest payment period as provided in the Indenture
and such period, or any extension thereof, shall be continuing, the Company
will not, until all defaulted interest on the Debentures and all interest
accrued on the Debentures during an extended interest payment period and all
principal and premium, if any, then due and payable on the Debentures shall
have been paid in full, (i) declare, set aside or pay any dividend or
distribution on any capital stock of the Company, except for dividends or
distributions in shares of its capital stock or in rights to acquire shares of
its capital stock, or (ii) repurchase, redeem or otherwise acquire, or make any
sinking fund payment for the purchase or redemption of, any shares of its
capital stock (except by conversion into or exchange for shares of its capital
stock and except for a redemption, purchase or other acquisition of shares of
its capital stock made for the purpose of an employee incentive plan or benefit
plan of the Company or any of its subsidiaries and except for mandatory
redemption or sinking fund payments with respect to any series of preferred
stock of the Company that are subject to mandatory redemption or sinking fund
requirements, provided that the aggregate par value and/or stated value of all
such series outstanding at the time of any such payment does not exceed five
percent of the aggregate of (1) the total principal amount of all bonds or
other securities representing secured indebtedness issued or assumed by the
Company and then outstanding and (2) the capital and surplus of the Company to
be stated on the books of account of the Company after giving effect to such
payment); provided, however, that any moneys deposited in any sinking fund and
not in violation of this provision may thereafter be applied to the purchase or
redemption of such preferred stock in accordance with the terms of such sinking
fund without regard to the restrictions contained in this Section.
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ARTICLE FIVE
Debentureholders' Lists and Reports by the Company
and the Trustee
SECTION 5.01. The Company will furnish or cause to be furnished to
the Trustee (a) on a monthly basis a list, in such form as the Trustee may
reasonably require, of the names and addresses of the holders of each series of
Debentures as of such Regular Record Date; provided that the Company shall not
be obligated to furnish or cause to furnish such list at any time that the list
shall not differ in any respect from the most recent list furnished to the
Trustee by the Company and (b) at such other times as the Trustee may request
in writing within 30 days after the receipt by the Company of any such request,
a list of similar form and content as of a date not more than 15 days prior to
the time such list is furnished; provided, however, no such list need be
furnished for any series for which the Trustee shall be the Debenture
Registrar.
SECTION 5.02. (a) The Trustee shall preserve, in as current a form
as is reasonably practicable, all information as to the names and addresses of
the holders of Debentures contained in the most recent list furnished to it as
provided in Section 5.01 and as to the names and addresses of holders of
Debentures received by the Trustee in its capacity as Debenture Registrar (if
acting in such capacity).
(b) The Trustee may destroy any list furnished to it as provided
in Section 5.01 upon receipt of a new list so furnished.
(c) In case three or more holders of Debentures of a series
(hereinafter referred to as "Applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such Applicant has owned a
Debenture for a period of at least six months preceding the date of such
application, and such application states that the Applicants desire to
communicate with other holders of Debentures of that series or holders of all
Debentures with respect to their rights under this Indenture or under such
Debentures, and is accompanied by a copy of the form of proxy or other
communication which such Applicants propose to transmit, then the Trustee
shall, within five Business Days after the receipt of such application, at its
election, either:
(1) afford to such Applicants access to the information
preserved at the time by the Trustee in accordance with the provisions
of Section 5.02(a); or
(2) inform such Applicants as to the approximate number
of holders of Debentures of such series or of all Debentures, as the
case may be, whose names and addresses appear in the information
preserved at the time by the Trustee, in accordance with the
provisions of Section 5.02(a), and as to the approximate cost of
mailing to such Debentureholders the form of proxy or other
communication, if any, specified in such application.
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(d) If the Trustee shall elect not to afford such Applicants
access to such information, the Trustee shall, upon the written request of such
Applicants, mail to each holder of that series or of all Debentures, as the
case may be, whose name and address appears in the information preserved at the
time by the Trustee in accordance with the provisions of Section 5.02(a), a
copy of the form of proxy or other communication which is specified in such
request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender, the
Trustee shall mail to such Applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interests of the holders of Debentures of that series or of all Debentures, as
the case may be, or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written
statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Debentureholders with reasonable promptness after the entry of such order and
the renewal of such tender; otherwise, the Trustee shall be relieved of any
obligation or duty to such Applicants respecting their application.
(e) Each and every holder of the Debentures, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any paying agent nor any Debenture Registrar shall
be held accountable by reason of the disclosure of any such information as to
the names and addresses of the holders of Debentures in accordance with the
provisions of Section 5.02(c), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section
5.02(c).
SECTION 5.03 (a) The Company covenants and agrees to file with the
Trustee, within 15 days after the Company is required to file the same with the
Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which the
Company may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or if the Company is not required to file
information, documents or reports pursuant to either of such sections, then to
file with the Trustee and the Commission, in accordance with the rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act, in respect of a
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security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations.
(b) The Company covenants and agrees to file with the
Trustee and the Commission, in accordance with the rules and regulations
prescribed from time to time by the Commission, such additional information,
documents and reports with respect to compliance by the Company with the
conditions and covenants provided for in this Indenture as may be required from
time to time by such rules and regulations. Delivery of such reports,
documents and information to the Trustee under this subsection (b) and Section
5.03(a) is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein
or determinable from information contained therein, including the Company's
compliance with any of the covenants hereunder.
(c) The Company covenants and agrees to transmit by mail,
first-class postage prepaid, or, at the option of the Company, reputable
overnight delivery service which provides for evidence of receipt, to the
Debentureholders, as their names and addresses appear upon the Debenture
Register, within 30 days after the filing thereof with the Trustee, such
summaries of any information, documents and reports required to be filed by the
Company pursuant to Section 5.03(a) and (b) as may be required by rules and
regulations prescribed from time to time by the Commission.
(d) The Company covenants and agrees to furnish to the Trustee, on
or before May 15 in each calendar year in which any of the Debentures are
outstanding, or on or before such other day in each calendar year as the
Company and the Trustee may from time to time agree upon, and in no event less
often than annually, a Certificate as to knowledge of the Company's compliance
with all conditions and covenants under this Indenture and which Certificate
otherwise complies with the provisions of Section 314(a)(4) of the Trust
Indenture Act. For purposes of this subsection (d), such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture.
(e) The Company covenants and agrees, during any calendar year in
which original issue discount has accrued on Outstanding Debentures, to file
with the Trustee promptly at the end of each such calendar year a written
notice specifying the amount of original issue discount (including daily rates
and accrual periods) accrued on Outstanding Debentures as of the end of such
year.
SECTION 5.04. (a) On or before July 15 in each year in which any of
the Debentures are outstanding, the Trustee shall transmit by mail, first-class
postage prepaid, to the Debentureholders, and to any other person referred to
in Section 313(c) of the Trust Indenture Act, as their names and addresses
appear upon the Debenture Register, a brief report dated as of the preceding
May 15, with respect to any of the following events which may have
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occurred within the previous 12 months (but if no such event has occurred
within such period no report need be transmitted):
(1) any change to its eligibility under Section 7.09, and
its qualifications under Section 7.08;
(2) the creation of or any material change to a
relationship specified in paragraphs (1) through (10) of Section
310(b) of the Trust Indenture Act;
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Debentures, on any
property or funds held or collected by it as Trustee if such advances
so remaining unpaid aggregate more than 1/2 of 1% of the principal
amount of the Debentures outstanding on the date of such report;
(4) any change to the amount, interest rate and maturity
date of all other indebtedness owing by the Company, or by any other
obligor on the Debentures, to the Trustee in its individual capacity,
on the date of such report, with a brief description of any property
held as collateral security therefor, except any indebtedness based
upon a creditor relationship arising in any manner described in
paragraphs (2), (3), (4) or (6) of Section 311(b) of the Trust
Indenture Act.
(5) any change to the property and funds, if any,
physically in the possession of the Trustee as such on the date of
such report;
(6) any release, or release and substitution, of property
subject to the lien, if any, of this Indenture (and the consideration
thereof, if any) which it has not previously reported;
(7) any additional issue of Debentures which the Trustee
has not previously reported; and
(8) any action taken by the Trustee in the performance of
its duties under this Indenture which it has not previously reported
and which in its opinion materially affects the Debentures or the
Debentures of any series, except any action in respect of a default,
notice of which has been or is to be withheld by it in accordance with
the provisions of Section 6.07.
(b) The Trustee shall transmit by mail, first-class postage
prepaid to the Debentureholders and to any other person referred to in Section
313(c) of the Trust Indenture Act, as their names and addresses appear upon the
Debenture Register, a brief report with respect to the character and amount of
any advances (and if the
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Trustee elects so to state, the circumstances surrounding the making thereof)
made by the Trustee as such since the date of the last report transmitted
pursuant to the provisions of subsection (a) of this Section (or if no such
report has yet been so transmitted, since the date of execution of this
Indenture), for the reimbursement of which it claims or may claim a lien or
charge prior to that of the Debentures of any series on property or funds held
or collected by it as Trustee, and which it has not previously reported
pursuant to this subsection if such advances remaining unpaid at any time
aggregate more than 10% of the principal amount of Debentures of such series
outstanding at such time, such report to be transmitted within 90 days after
such time.
(c) A copy of each such report shall, at the time of such
transmission to Debentureholders, be filed by the Trustee with the Company,
with each exchange upon which any Debentures are listed (if so listed) and also
with the Commission. The Company agrees to notify the Trustee when any
Debentures become listed on any exchange.
ARTICLE SIX
Remedies of the Trustee and Debentureholders
on Event of Default
SECTION 6.01. (a) Whenever used herein with respect to Debentures
of a particular series, "Event of Default" means any one or more of the
following events which has occurred and is continuing:
(1) default in the payment of any installment of interest
upon any of the Debentures of that series, as and when the same shall
become due and payable, and continuance of such default for a period
of 10 days;
(2) default in the payment of the principal of (or
premium, if any, on) any of the Debentures of that series as and when
the same shall become due and payable, whether at maturity, upon
redemption, by acceleration or otherwise, or in any payment required
by any sinking or analogous fund established with respect to that
series;
(3) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company with respect to that series contained in such Debentures or
otherwise established with respect to that series of Debentures
pursuant to Section 2.01 hereof or contained in this Indenture (other
than a covenant or agreement which has been expressly included in this
Indenture solely for the benefit of one or more series of Debentures
other than such series) for a period of 90 days after the date on
which written notice of such failure, requiring the same to be
remedied and stating that such notice is a "Notice of Default"
hereunder, shall have been given to the Company by the Trustee, by
registered or certified mail, or to the Company and the Trustee by the
holders of at least 25% in
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principal amount of the Debentures of that series at the time
outstanding;
(4) a decree or order by a court having jurisdiction in
the premises shall have been entered adjudging the Company a bankrupt
or insolvent, or approving as properly filed a petition seeking
liquidation or reorganization of the Company under the Federal
Bankruptcy Code or any other similar applicable federal or state law,
and such decree or order shall have continued unvacated and unstayed
for a period of 90 days; an involuntary case shall be commenced under
such Code in respect of the Company and shall continue undismissed for
a period of 90 days or an order for relief in such case shall have
been entered; or a decree or order of a court having jurisdiction in
the premises shall have been entered for the appointment on the ground
of insolvency or bankruptcy of a receiver, custodian, liquidator,
trustee or assignee in bankruptcy or insolvency of the Company or of
its property, or for the winding up or liquidation of its affairs, and
such decree or order shall have remained in force unvacated and
unstayed for a period of 90 days; or
(5) the Company shall institute proceedings to be
adjudicated a voluntary bankrupt, shall consent to the filing of a
bankruptcy proceeding against it, shall file a petition or answer or
consent seeking liquidation or reorganization under the Federal
Bankruptcy Code or other similar applicable federal or state law,
shall consent to the filing of any such petition or shall consent to
the appointment on the ground of insolvency or bankruptcy of a
receiver or custodian or liquidator or trustee or assignee in
bankruptcy or insolvency of it or of its property, or shall make an
assignment for the benefit of creditors.
(b) In each and every such case, the Company shall file with the
Trustee written notice of the occurrence of any Event of Default within five
Business Days of the Company's becoming aware of any such Event of Default, and
unless the principal of all the Debentures of that series shall have already
become due and payable, either the Trustee or the holders of not less than 25%
in aggregate principal amount of the Debentures of that series then outstanding
hereunder, by notice in writing to the Company (and to the Trustee if given by
such Debentureholders), may declare the principal of all the Debentures of that
series to be due and payable immediately, and upon any such declaration the
same shall become and shall be immediately due and payable, anything contained
in this Indenture or in the Debentures of that series or established with
respect to that series pursuant to Section 2.01 hereof to the contrary
notwithstanding.
(c) The provisions of subsection (b) of this Section, however, are
subject to the condition that if, at any time after the principal of the
Debentures of that series shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due shall have been
obtained or entered as
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hereinafter provided, the Company shall pay or shall deposit with the Trustee a
sum sufficient to pay all matured installments of interest upon all the
Debentures of that series and the principal of (and premium, if any, on) any
and all Debentures of that series which shall have become due otherwise than by
acceleration (with interest upon such principal and premium, if any, and, to
the extent that such payment is enforceable under applicable law, upon overdue
installments of interest, at the rate per annum expressed in the Debentures of
that series to the date of such payment or deposit) and the amount payable to
the Trustee under Section 7.06, and any and all defaults under the Indenture,
other than the nonpayment of principal on Debentures of that series which shall
not have become due by their terms, shall have been remedied or waived as
provided in Section 6.06, then and in every such case the holders of a majority
in aggregate principal amount of the Debentures of that series then
outstanding, by written notice to the Company and to the Trustee, may rescind
and annul such declaration and its consequences; but no such rescission and
annulment shall extend to or shall affect any subsequent default, or shall
impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any right
with respect to Debentures of that series under this Indenture and such
proceedings shall have been discontinued or abandoned because of such
rescission or annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case the Company and the
Trustee shall be restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Company and the Trustee
shall continue as though no such proceedings had been taken.
SECTION 6.02. (a) The Company covenants that (1) in case default
shall be made in the payment of any installment of interest on any of the
Debentures of a series, and such default shall have continued for a period of
10 Business Days, or (2) in case default shall be made in the payment of the
principal of (or premium, if any, on) any of the Debentures of a series when
the same shall have become due and payable, whether upon maturity of the
Debentures of a series or upon redemption or upon acceleration or otherwise, or
in any payment required by any sinking or analogous fund established with
respect to that series as and when the same shall have become due and payable
then, upon demand of the Trustee, the Company will pay to the Trustee, for the
benefit of the holders of the Debentures of that series, the whole amount that
then shall have become due and payable on all such Debentures for principal
(and premium, if any) or interest, or both, as the case may be, with interest
upon the overdue principal (and premium, if any) and (to the extent that
payment of such interest is enforceable under applicable law) upon overdue
installments of interest at the rate per annum expressed in the Debentures of
that series; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, and the amount
payable to the Trustee under Section 7.06.
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(b) In case the Company shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings
at law, or in equity, for the collection of the sums so due and unpaid, and may
prosecute any such action or proceeding to judgment or final decree, and may
enforce any such judgment or final decree against the Company or other obligor
upon the Debentures of that series and collect in the manner provided by law
out of the property of the Company or other obligor upon the Debentures of that
series wherever situated the moneys adjudged or decreed to be payable.
(c) In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, readjustment, arrangement, composition or other
judicial proceedings affecting the Company, any other obligor on such
Debentures or the creditors or property of either, the Trustee shall have power
to intervene in such proceedings and take any action therein that may be
permitted by the court and shall (except as may be otherwise provided by law)
be entitled to file such proofs of claim and other papers and documents as may
be necessary or advisable in order to have the claims of the Trustee and of the
holders of Debentures of such series allowed for the entire amount due and
payable by the Company or such other obligor under the Indenture at the date of
institution of such proceedings and for any additional amount which may become
due and payable by the Company or such other obligor after such date, and to
collect and receive any moneys or other property payable or deliverable on any
such claim, and to distribute the same after the deduction of the amount
payable to the Trustee under Section 7.06; and any receiver, assignee or
trustee in bankruptcy or reorganization is hereby authorized by each of the
holders of Debentures of that series to make such payments to the Trustee, and,
in the event that the Trustee shall consent to the making of such payments
directly to such Debentureholders, to pay to the Trustee any amount due it
under Section 7.06.
(d) All rights of action and of asserting claims under this
Indenture, or under any of the terms established with respect to Debentures of
any series, may be enforced by the Trustee without the possession of any of
such Debentures, or the production thereof at any trial or other proceeding
relative thereto, and any such suit or proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for payment to the Trustee of any
amounts due under Section 7.06, be for the ratable benefit of the holders of
the Debentures of that series.
In case of an Event of Default hereunder, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law, in
equity in bankruptcy or otherwise, whether for the specific enforcement of any
covenant or agreement contained in the Indenture or in aid of the exercise of
any power
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granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize, consent to, accept or adopt on behalf of any Debentureholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Debentures of any series or the rights of any holder thereof or to authorize
the Trustee to vote in respect of the claim of any Debentureholder in any such
proceeding.
SECTION 6.03. Any moneys collected by the Trustee pursuant to
Section 6.02 with respect to a particular series of Debentures shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such moneys on account of principal (or
premium, if any) or interest, upon presentation of the several Debentures of
that series, and stamping thereon the payment, if only partially paid, and
upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection and of all
amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of the amounts then due and unpaid upon
Debentures of that series for principal (and premium, if any) and interest, in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Debentures for principal (and premium, if any) and
interest, respectively; and
THIRD: To the Company.
SECTION 6.04. No holder of any Debenture of any series shall have
any right by virtue or by availing of any provision of this Indenture to
institute any suit, action or proceeding in equity or at law upon or under or
with respect to this Indenture or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless such holder previously shall have
given to the Trustee written notice of an Event of Default and of the
continuance thereof with respect to Debentures of that series specifying such
Event of Default, as hereinbefore provided, and unless also the holders of not
less than 25% in aggregate principal amount of the Debentures of such series
then outstanding shall have made written request upon the Trustee to institute
such action, suit or proceeding in its own name as trustee hereunder and shall
have offered to the Trustee such reasonable indemnity as it may require against
the costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity, shall have failed to institute any such action, suit or proceeding;
it being understood and intended, and being expressly covenanted by the taker
and holder of every Debenture of that series with every other such taker and
holder and the Trustee, that no one or more holders of Debentures of that
series shall have any right in any manner whatsoever by virtue or by availing
of any provision of this
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Indenture to affect, disturb or prejudice the rights of the holders of any
other of such Debentures, or to obtain or seek to obtain priority over or
preference to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all holders of Debentures of that series. For the protection
and enforcement of the provisions of this Section, each and every
Debentureholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Notwithstanding any other provisions of this Indenture, however, the
right of any holder of any Debenture to receive payment of the principal of
(and premium, if any) and interest on such Debenture, as therein provided, on
or after the respective due dates expressed in such Debenture (or in the case
of redemption, on the redemption date), or to institute suit for the
enforcement of any such payment on or after such respective dates or redemption
date, shall not be impaired or affected without the consent of such holder.
SECTION 6.05. (a) All powers and remedies given by this Article to
the Trustee or to the Debentureholders shall, to the extent permitted by law,
be deemed cumulative and not exclusive of any others thereof or of any other
powers and remedies available to the Trustee or the holders of the Debentures,
by judicial proceedings or otherwise, to enforce the performance or observance
of the covenants and agreements contained in this Indenture or otherwise
established with respect to such Debentures.
(b) No delay or omission of the Trustee or of any holder of any of
the Debentures to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such right or
power, or shall be construed as a waiver of any such default or an acquiescence
therein; and, subject to the provisions of Section 6.04, every power and remedy
given by this Article or by law to the Trustee or to the Debentureholders may
be exercised from time to time, and as often as shall be deemed expedient, by
the Trustee or by the Debentureholders.
SECTION 6.06. The holders of a majority in aggregate principal
amount of the Debentures of any series at the time outstanding, determined in
accordance with Section 8.04, shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee with respect to that
series; provided, however, that such direction shall not be in conflict with
any rule of law or with this Indenture or unduly prejudicial to the rights of
holders of Debentures of any other series at the time outstanding determined in
accordance with Section 8.04 not parties thereto. Subject to the provisions of
Section 7.01, the Trustee shall have the right to decline to follow any such
direction if the Trustee in good faith shall, by a Responsible Officer of the
Trustee, determine that the proceeding so directed might involve the Trustee in
personal liability. The holders of a majority in aggregate principal amount of
the
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Debentures of such series at the time outstanding affected thereby, determined
in accordance with Section 8.04, may on behalf of the holders of all of the
Debentures of such series waive any past default in the performance of any of
the covenants contained herein or established pursuant to Section 2.01 with
respect to such series and its consequences, except a default in the payment of
the principal of (premium, if any) or interest on, any of the Debentures of
that series as and when the same shall become due by the terms of such
Debentures or a call for redemption of Debentures of that series, which default
may be waived by the unanimous consent of the holders affected. Upon any such
waiver, the default covered thereby shall be deemed to be cured for all
purposes of this Indenture and the Company, the Trustee and the holders of the
Debentures of that series shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 6.07. The Trustee shall, within 90 days after the
occurrence of a default with respect to a particular series, transmit by mail,
first-class postage prepaid, to the holders of Debentures of that series, as
their names and addresses appear upon the Debenture Register, notice of all
defaults with respect to that series known to the Trustee, unless such defaults
shall have been cured or waived before the giving of such notice (the term
"defaults" for the purposes of this Section being hereby defined to be the
events specified in subsections (1), (2), (3), (4) and (5) of Section 6.01(a),
not including any grace periods provided for therein and irrespective of the
giving of notice provided for by subsection (3) of Section 6.01(a)); provided,
that, except in the case of default in the payment of the principal of (or
premium, if any) or interest on any of the Debentures of that series or in the
payment of any sinking fund installment established with respect to that
series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee, or a trust committee
of directors and/or Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the interests of the holders of
Debentures of that series; provided further, that in the case of any default of
the character specified in Section 6.01(a)(3) with respect to Debentures of
that series, no such notice to the holders of the Debentures of that series
shall be given until at least 30 days after the occurrence thereof.
For any and all purposes of this Indenture, the Trustee shall not be
deemed to have or charged with knowledge of any default or Event of Default,
except (i) a default under Section 6.01(a)(1) or (a)(2) with respect to a
series of Debentures for which the Trustee is acting as paying agent or (ii)
any default as to which the Trustee shall have received written notice or a
Responsible Officer charged with the administration of this Indenture shall
have actual knowledge or obtained written notice.
SECTION 6.08. All parties to this Indenture agree, and each holder
of any Debentures by his or her acceptance thereof shall be
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deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made
by such party litigant; but the provisions of this Section shall not apply to
any suit instituted by the Trustee, any suit instituted by any Debentureholder,
or group of Debentureholders, holding more than 10% in aggregate principal
amount of the outstanding Debentures of any series, or any suit instituted by
any Debentureholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Debenture of any series, on or after the
respective due dates expressed in such Debenture or established pursuant to
this Indenture.
ARTICLE SEVEN
Concerning the Trustee
SECTION 7.01. (a) The Trustee, prior to the occurrence of an Event
of Default with respect to Debentures of any series and after the curing of all
Events of Default with respect to Debentures of that series which may have
occurred, shall undertake to perform with respect to Debentures of that series
such duties and only such duties as are specifically set forth in this
Indenture, and no implied covenants shall be read into this Indenture against
the Trustee. In case an Event of Default with respect to Debentures of a
series has occurred (which has not been cured or waived), the Trustee shall
exercise with respect to Debentures of that series such of the rights and
powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent individual would exercise or use under
the circumstances in the conduct of his or her own affairs.
(b) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that:
(1) prior to the occurrence of an Event of Default with
respect to Debentures of a series and after the curing and waiving of
all such Events of Default with respect to that series which may have
occurred:
(i) the duties and obligations of the Trustee
shall with respect to Debentures of that series be determined
solely by the express provisions of this Indenture, and the
Trustee shall not be liable with respect to Debentures of
that series except for the performance of such duties and
obligations as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
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(ii) in the absence of bad faith on the part of
the Trustee, the Trustee may with respect to Debentures
of that series conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other
facts stated therein);
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Trustee,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the holders of not less than a majority in
principal amount of the Debentures of any series at the time
outstanding relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee under this Indenture with
respect to the Debentures of that series; and
(4) none of the provisions contained in this Indenture
shall require the Trustee to expend or risk its own funds or otherwise
incur or risk personal financial liability in the performance of any
of its duties or in the exercise of any of its rights or powers, if
there is reasonable ground for believing that the repayment of such
funds or liability is not reasonably assured to it under the terms of
this Indenture or adequate indemnity against such risk is not
reasonably assured to it.
(c) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section 7.01.
SECTION 7.02. Except as otherwise provided in Section 7.01:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, security or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) Any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Board
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Resolution or a Company Request or Company Order (unless other evidence in
respect thereof is specifically prescribed herein);
(c) Whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) is entitled to receive and may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
(d) The Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted hereunder in good faith and in reliance thereon;
(e) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Debentureholders, pursuant to the provisions of this
Indenture, unless such Debentureholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby; nothing herein contained shall,
however, relieve the Trustee of the obligation, upon the occurrence of an Event
of Default with respect to a series of the Debentures (which has not been cured
or waived) to exercise with respect to Debentures of that series such of the
rights and powers vested in it by this Indenture, and to use the same degree of
care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs;
(f) If an Event of Default shall have occurred and be continuing,
the Trustee shall be under no obligation to follow any request, order or
direction of the Company if in the reasonable judgment of the Trustee such
request, order or direction would not be in the best interests of all the
holders;
(g) The Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Indenture;
(h) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
security, or other papers or documents, unless requested in writing to do so by
the holders of not less than a majority in principal amount of the outstanding
Debentures of the particular series affected thereby (determined as provided in
Section 8.04); provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be incurred by
it in the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the terms
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of this Indenture, the Trustee may require reasonable indemnity against such
costs, expenses or liabilities as a condition to so proceeding. The reasonable
expense of every such examination shall be paid by the Company or, if paid by
the Trustee, shall be repaid by the Company upon demand;
(i) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(j) The Trustee may, at its option, apply for written instructions
from the Company in which application, the Trustee, at its option, may set
forth in writing any action proposed to be taken or omitted by the Trustee
under this Indenture and the date on and/or after which such action shall be
taken or such omission shall be effective. The Trustee shall not be liable for
any action or omission of the Trustee in accordance with a proposal included in
such application on or after the date specified in such application (which date
shall not be less than three Business Days after the date any officer of the
Company actually receives such application, unless any such officer shall have
consented in writing to any earlier date) unless prior to taking any such
action (or the effective date in the case of an omission), the Trustee shall
have received written instructions in response to such application specifying
the action to be taken or omitted.
SECTION 7.03. (a) The recitals contained herein and in the
Debentures (other than the Certificate of Authentication on the Debentures)
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debentures.
(c) The Trustee shall not be accountable for the use or
application by the Company of any of the Debentures or of the proceeds of the
Debentures, or for the use or application of any moneys paid over by the
Trustee in accordance with any provision of this Indenture or established
pursuant to Section 2.01, or for the use or application of any moneys received
by any paying agent other than the Trustee.
SECTION 7.04. The Trustee or any paying agent or Debenture
Registrar, in its individual or any other capacity, may become the owner or
pledgee of Debentures with the same rights it would have if it were not
Trustee, paying agent or Debenture Registrar.
SECTION 7.05. Subject to the provisions of Section 11.06, all
moneys received by the Trustee shall, until used or applied as herein provided,
be held in trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no
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liability for interest on any moneys received by it hereunder except such as it
may agree with the Company to pay thereon.
SECTION 7.06. (a) The Company covenants and agrees to pay to the
Trustee from time to time, and the Trustee shall be entitled to, such
compensation as the Company and the Trustee may agree upon (which shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust) for all services rendered by it in the execution of the
trusts hereby created and in the exercise and performance of any of the powers
and duties hereunder of the Trustee, and the Company will pay or reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any of the
provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all persons not regularly in
its employ) except any such expense, disbursement or advance as may arise from
its negligence or bad faith. The Company also covenants to indemnify the
Trustee (and its officers, agents, directors and employees) for, and to hold it
harmless against, any loss, damage, claim, liability or expense incurred
without negligence or bad faith on the part of the Trustee and arising out of
or in connection with the acceptance or administration of this trust, including
the costs and expenses of defending itself against any claim of liability in
the premises.
(b) The obligations of the Company under this Section to
compensate and indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall constitute additional indebtedness
hereunder and shall survive the termination of this Indenture. Such additional
indebtedness shall be a senior lien to that of the Debentures upon all property
and funds held or collected by the Trustee as such, except funds held in trust
for the benefit of the holders of particular Debentures, and the Debentures are
hereby subordinated to each such senior lien.
(c) When the Trustee incurs expenses or renders services in
connection with an Event of Default, the expenses (including the reasonable
charges and expenses of its counsel) and compensation for its services are
intended to constitute expenses of administration under applicable federal or
state bankruptcy, insolvency or similar law.
SECTION 7.07. Except as otherwise provided in Section 7.01,
whenever in the administration of the provisions of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or established
prior to taking or suffering or omitting to take any action hereunder, it shall
be entitled to receive, and such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of negligence or
bad faith on the part of the Trustee, be deemed to be conclusively provided and
established, by an Officers' Certificate delivered to the Trustee and such
certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered or
omitted to be taken by it under the provisions of this Indenture upon the faith
thereof.
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SECTION 7.08. If the Trustee has acquired or shall acquire a
conflicting interest within the meaning of the Trust Indenture Act, the Trustee
shall either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this
Indenture.
SECTION 7.09. There shall at all times be a Trustee with respect to
the Debentures issued hereunder which shall at all times be a corporation
organized and doing business under the laws of the United States of America or
any State or Territory thereof or of the District of Columbia, or a corporation
or other person permitted to act as trustee by the Commission, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least 50 million dollars, and subject to supervision or
examination by Federal, State, Territorial or District of Columbia authority.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. The
Company may not, nor may any person directly or indirectly controlling,
controlled by, or under common control with the Company, serve as Trustee. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 7.10.
SECTION 7.10. (a) The Trustee or any successor hereafter appointed
may at any time resign with respect to the Debentures of one or more series by
giving written notice thereof to the Company and by transmitting notice of
resignation by mail, first-class postage prepaid, to the Debentureholders of
that series, as their names and addresses appear upon the Debenture Register.
Upon receiving such notice of resignation, the Company shall promptly appoint a
successor trustee with respect to Debentures of that series by written
instrument, in duplicate, executed by order of the Board of Directors, one copy
of which instrument shall be delivered to the resigning Trustee and one copy to
the successor trustee. If no successor trustee shall have been so appointed
and have accepted appointment within 30 days after the mailing of such notice
of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee with respect to
Debentures of that series, or any Debentureholder of that series who has been a
bona fide holder of a Debenture or Debentures for at least six months may,
subject to the provisions of Section 6.08, on behalf of such holder and all
others similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon after such notice, if any, as it
may deem proper and prescribe, appoint a successor trustee.
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(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of
Section 7.08 after written request therefor by the Company or by any
Debentureholder who has been a bona fide holder of a Debenture or
Debentures for at least six months; or
(2) the Trustee shall cease to be eligible in accordance
with the provisions of Section 7.09 and shall fail to resign after
written request therefor by the Company or by any such
Debentureholder; or
(3) the Trustee shall become incapable of acting, shall be
adjudged a bankrupt or insolvent, a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation,
then, in any such case, the Company may remove the Trustee with respect to all
Debentures and appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall
be delivered to the Trustee so removed and one copy to the successor trustee,
or, subject to the provisions of Section 7.08, unless the Trustee's duty to
resign is stayed as provided therein, any Debentureholder who has been a bona
fide holder of a Debenture or Debentures for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
trustee. Such court may thereupon after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Debentures of any series at the time outstanding may at any time remove the
Trustee with respect to that series and appoint a successor trustee.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee with respect to the Debentures of a series pursuant to any of
the provisions of this Section shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant to this Section may
be appointed with respect to the Debentures of one or more series or all of
such series, and at any time there shall be only one Trustee with respect to
the Debentures of any particular series.
SECTION 7.11. (a) In case of the appointment hereunder of a
successor trustee with respect to all Debentures, every such successor trustee
so appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or
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removal of the retiring Trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor trustee all the rights, powers, and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor trustee
all property and money held by such retiring Trustee hereunder, subject to any
prior lien provided for in Section 7.06(b).
(b) In case of the appointment hereunder of a successor trustee
with respect to the Debentures of one or more (but not all) series, the
Company, the retiring Trustee and each successor trustee with respect to the
Debentures of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor trustee shall accept such
appointment and which shall (1) contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor trustee
all the rights, powers, trusts, and duties of the retiring Trustee with respect
to the Debentures of that or those series to which the appointment of such
successor trustee relates, (2) contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Debentures of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee and (3) add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee and that no
Trustee shall be responsible for any act or failure to act on the part of any
other Trustee hereunder; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein, such retiring Trustee shall
with respect to the Debentures of that or those series to which the appointment
of such successor trustee relates have no further responsibility for the
exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture, and each such successor
trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Debentures of that or those series to which the appointment of such
successor trustee relates, subject to any prior lien provided for in Section
7.06(b); but, on request of the Company or any successor trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor trustee, to
the extent contemplated by such supplemental indenture, the property and money
held by such retiring Trustee hereunder with respect to the Debentures of that
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or those series to which the appointment of such successor trustee relates.
(c) Upon request of any such successor trustee or retiring
Trustee, the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor trustee all such rights,
powers and trusts referred to in paragraph (a) or (b) of this Section, as the
case may be.
(d) No successor trustee shall accept its appointment unless at
the time of such acceptance such successor trustee shall be qualified and
eligible under this Article.
(e) Upon acceptance of appointment by a successor trustee as
provided in this Section, the Company shall transmit notice of the succession
of such trustee hereunder by mail, first-class postage prepaid, to the
Debentureholders, as their names and addresses appear upon the Debenture
Register. If the Company fails to transmit such notice within 10 days after
acceptance of appointment by the successor trustee, the successor trustee shall
cause such notice to be transmitted at the expense of the Company.
SECTION 7.12. Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that such
corporation shall be qualified under the provisions of Section 7.08 and
eligible under the provisions of Section 7.09, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. In case any Debentures shall
have been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Debentures so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Debentures.
SECTION 7.13. If and when the Trustee shall become a creditor of
the Company (or any other obligor upon the Debentures), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection
of claims against the Company (or any other obligor upon the Debentures).
ARTICLE EIGHT
Concerning the Debentureholders
SECTION 8.01. Whenever in this Indenture it is provided that the
holders of a majority or specified percentage in aggregate principal amount of
the Debentures of a particular series may take any action (including the making
of any demand or request, the giving of any notice, consent or waiver or the
taking of any other action), the fact that at the time of taking any such
action the holders of such majority or specified percentage of that series
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have joined therein may be evidenced by any instrument or any number of
instruments of similar tenor executed by such holders of Debentures of that
series in person or by agent or proxy appointed in writing.
If the Company shall solicit from the Debentureholders of any series
any request, demand, authorization, direction, notice, consent, waiver or other
action, the Company may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for that series for the determination
of Debentureholders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the Company shall have
no obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Debentureholders of record at the
close of business on the record date shall be deemed to be Debentureholders for
the purposes of determining whether Debentureholders of the requisite
proportion of outstanding Debentures of that series have authorized or agreed
or consented to such request, demand, authorization, direction, notice,
consent, waiver or other action, and for that purpose the outstanding
Debentures of that series shall be computed as of the record date; provided
that no such authorization, agreement or consent by such Debentureholders on
the record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after
the record date.
SECTION 8.02. Subject to the provisions of Section 7.01, proof of
the execution of any instrument by a Debentureholder (such proof will not
require notarization) or his, her or its agent or proxy and proof of the
holding by any person of any of the Debentures shall be sufficient if made in
the following manner:
(a) the fact and date of the execution by any such person
of any instrument may be proved, in any reasonable manner acceptable
to the Trustee;
(b) the ownership of Debentures shall be proved by the
Debenture Register of such Debentures or by a certificate of the
Debenture Registrar thereof; or
(c) the Trustee may require such additional proof of any
matter referred to in this Section as it shall deem necessary.
SECTION 8.03. Prior to the due presentment for registration of
transfer of any Debenture, the Company, the Trustee, any paying agent and any
Debenture Registrar may deem and treat the person in whose name such Debenture
shall be registered upon the books of the Company as the absolute owner of such
Debenture (whether or not such Debenture shall be overdue and notwithstanding
any notice of ownership or writing thereon made by anyone other than the
Debenture Registrar) for the purpose of receiving payment of or on account of
the principal of (premium, if any) and (subject to Section 2.03) interest on
such Debenture and for all other
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purposes; and neither the Company nor the Trustee nor any paying agent nor any
Debenture Registrar shall be affected by any notice to the contrary.
SECTION 8.04. In determining whether the holders of the requisite
aggregate principal amount of Debentures of a particular series have concurred
in any direction, consent or waiver under this Indenture, Debentures of that
series which are owned by the Company or any other obligor on the Debentures of
that series or by any person directly or indirectly controlling or controlled
by or under common control with the Company or any other obligor on the
Debentures of that series shall be disregarded and deemed not to be outstanding
for the purpose of any such determination, except that for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, consent or waiver, only Debentures of such series which the Trustee
actually knows are so owned shall be so disregarded. Debentures so owned which
have been pledged in good faith may be regarded as outstanding for the purposes
of this Section, if the pledgee shall establish to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Debentures and that
the pledgee is not a person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company or any such other
obligor. In case of a dispute as to such right, any decision by the Trustee
taken upon the advice of counsel shall be full protection to the Trustee.
SECTION 8.05. At any time prior to (but not after) the evidencing
to the Trustee, as provided in Section 8.01, of the taking of any action by the
holders of the majority or percentage in aggregate principal amount of the
Debentures of a particular series specified in this Indenture in connection
with such action, any holder of a Debenture of that series which is shown by
the evidence to be included in the Debentures the holders of which have
consented to such action may, by filing written notice with the Trustee, and
upon proof of holding as provided in Section 8.02 revoke such action so far as
concerns such Debenture. Except as aforesaid, any such action taken by the
holder of any Debenture shall be conclusive and binding upon such holder and
upon all future holders and owners of such Debenture, and of any Debenture
issued in exchange therefor, on registration of transfer thereof or in place
thereof, irrespective of whether or not any notation in regard thereto is made
upon such Debenture. Any action taken by the holders of the majority or
percentage in aggregate principal amount of the Debentures of a particular
series specified in this Indenture in connection with such action shall be
conclusively binding upon the Company, the Trustee and the holders of all the
Debentures of that series.
ARTICLE NINE
Supplemental Indentures
SECTION 9.01. In addition to any supplemental indenture otherwise
authorized by this Indenture, the Company, when authorized by a Board
Resolution, and the Trustee may from time to
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time and at any time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act as then in
effect), without the consent of the Debentureholders, for one or more of the
following purposes:
(a) to evidence the succession of another corporation to
the Company, and the assumption by any such successor of the covenants
of the Company contained herein or otherwise established with respect
to the Debentures;
(b) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions for the protection
of the holders of the Debentures of all or any series as the Board of
Directors and the Trustee shall consider to be for the protection of
the holders of Debentures of all or any series, and to make the
occurrence, or the occurrence and continuance, of a default in any of
such additional covenants, restrictions, conditions or provisions a
default or an Event of Default with respect to that series permitting
the enforcement of all or any of the several remedies provided in this
Indenture, as herein set forth; provided, however, that in respect of
any such additional covenant, restriction, condition or provision,
such supplemental indenture may provide for a particular period of
grace after default (which period may be shorter or longer than that
allowed in the case of other defaults), may provide for an immediate
enforcement upon such default or may limit the remedies available to
the Trustee upon such default or may limit the right of the holders of
a majority in aggregate principal amount of the Debentures of such
series to waive such default;
(c) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture, or to make such other provisions in
regard to matters or questions arising under this Indenture as shall
not be inconsistent with the provisions of this Indenture and shall
not adversely affect the interests of the holders of the Debentures of
any series; or
(d) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Debenture outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any
further appropriate agreements and stipulations which may be therein
contained, but the Trustee shall not be obligated to enter into any
such supplemental indenture which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
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Any supplemental indenture authorized by the provisions of this
Section may be executed by the Company and the Trustee without the consent of
the holders of any of the Debentures at the time outstanding, notwithstanding
any of the provisions of Section 9.02.
SECTION 9.02. With the consent (evidenced as provided in Section
8.01) of the holders of not less than a majority in aggregate principal amount
of the Debentures of each series affected by such supplemental indenture or
indentures at the time outstanding, the Company and the Trustee may from time
to time and at any time enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act as
then in effect) for the purpose of adding any provisions to, or changing in any
manner or eliminating any of the provisions of, this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the holders
of the Debentures of that series under this Indenture; provided, however, that
no such supplemental indenture shall (i) extend the fixed maturity of any
Debentures of any series, reduce the principal amount thereof, reduce the rate
or extend the time of payment of interest thereon or reduce any premium payable
upon the redemption thereof, without the consent of the holder of each
Debenture so affected or (ii) reduce the percentage of Debentures, the holders
of which are required to consent to any such supplemental indenture, without
the consent of the holders of each Debenture then outstanding and affected
thereby.
Upon a Company Request and upon the filing with the Trustee of
evidence of the consent of Debentureholders required to consent thereto as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion but shall not be obligated to enter into
such supplemental indenture.
It shall not be necessary for the consent of the Debentureholders of
any series affected thereby under this Section to approve the particular form
of any proposed supplemental indenture, but it shall be sufficient if such
consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first-class postage prepaid, a notice, setting forth in
general terms the substance of such supplemental indenture, to the
Debentureholders of all series affected thereby as their names and addresses
appear upon the Debenture Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
SECTION 9.03. Upon the execution of any supplemental indenture
pursuant to the provisions of this Article or of Section 10.01, this Indenture
shall, with respect to that series, be and be
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deemed to be modified and amended in accordance therewith and the respective
rights, limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the holders of Debentures of the
series affected thereby shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and all
purposes.
SECTION 9.04. Debentures of any series, affected by a supplemental
indenture, authenticated and delivered after the execution of such supplemental
indenture pursuant to the provisions of this Article or of Section 10.01, may
bear a notation in form approved by the Company, provided such form meets the
requirements of any exchange upon which such series may be listed, as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Debentures of that series so modified as to conform, in the
opinion of the Company, to any modification of this Indenture contained in any
such supplemental indenture may be prepared by the Company, authenticated by
the Trustee and delivered in exchange for the Debentures of that series then
outstanding.
SECTION 9.05. The Trustee, subject to the provisions of Section
7.01, is entitled to receive an Opinion of Counsel as conclusive evidence that
any supplemental indenture executed pursuant to this Article is authorized or
permitted by, and conforms to, the terms of this Article, has been duly
authorized by and lawfully executed and delivered on behalf of the Company, and
that it is proper for the Trustee under the provisions of this Article to join
in the execution thereof.
ARTICLE TEN
Consolidation, Merger and Sale
SECTION 10.01. Nothing contained in this Indenture or in any of the
Debentures shall prevent any consolidation or merger of the Company with or
into any other corporation or corporations (whether or not affiliated with the
Company), or successive consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall prevent any sale,
conveyance, transfer or other disposition of the property of the Company or its
successor or successors as an entirety, or substantially as an entirety, to any
other corporation (whether or not affiliated with the Company or its successor
or successors) authorized to acquire and operate the same; provided, however,
the Company hereby covenants and agrees that, upon any such consolidation,
merger, sale, conveyance, transfer or other disposition, the due and punctual
payment of the principal of (premium, if any) and interest on all of the
Debentures of all series in accordance with the terms of each series, according
to their tenor, and the due and punctual performance and observance of all the
covenants and conditions of this Indenture with respect to each series or
established with respect to each series pursuant to Section 2.01 to be kept or
performed by the Company, shall be expressly assumed, by
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supplemental indenture (which shall conform to the provisions of the Trust
Indenture Act as then in effect) satisfactory in form to the Trustee executed
and delivered to the Trustee by the entity formed by such consolidation, or
into which the Company shall have been merged, or by the entity which shall
have acquired such property.
SECTION 10.02. (a) In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition and upon the assumption by the
successor corporation, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the due and punctual
payment of the principal of (premium, if any) and interest on all of the
Debentures of all series outstanding and the due and punctual performance of
all of the covenants and conditions of this Indenture or established with
respect to each series of the Debentures pursuant to Section 2.01 to be
performed by the Company with respect to each series, such successor
corporation shall succeed to and be substituted for the Company, with the same
effect as if it had been named herein as the party of the first part, and
thereupon the predecessor corporation shall be relieved of all obligations and
covenants under this Indenture and the Debentures, except the provisions of
Section 7.06 to the extent such provisions relate to matters occurring before
any such consolidation, merger, sale, conveyance, transfer or other
disposition. Such successor corporation thereupon may cause to be signed, and
may issue either in its own name or in the name of the Company or any other
predecessor obligor on the Debentures, any or all of the Debentures issuable
hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of such successor corporation,
instead of the Company, and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Debentures which previously shall have been signed and
delivered by the officers of the predecessor corporation to the Trustee for
authentication, and any Debentures which such successor corporation thereafter
shall cause to be signed and delivered to the Trustee for that purpose. All
the Debentures so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Debentures theretofore or thereafter issued
in accordance with the terms of this Indenture as though all of such Debentures
had been issued at the date of the execution hereof.
(b) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition, such changes in phraseology and form (but not in
substance) may be made in the Debentures thereafter to be issued as may be
appropriate.
(c) Nothing contained in this Indenture or in any of the
Debentures shall prevent the Company from merging into itself or acquiring by
purchase or otherwise all or any part of the property of any other corporation
(whether or not affiliated with the Company).
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SECTION 10.03. The Trustee, subject to the provisions of Section
7.01, is entitled to receive an Opinion of Counsel as conclusive evidence that
any such consolidation, merger, sale, conveyance, transfer or other
disposition, and any such assumption, comply with the provisions of this
Article.
ARTICLE ELEVEN
Satisfaction and Discharge of Indenture;
Unclaimed Moneys
SECTION 11.01 If at any time: (a) the Company shall have delivered
to the Trustee for cancellation all Debentures of a series theretofore
authenticated (other than any Debentures which shall have been destroyed, lost
or stolen and which shall have been replaced or paid as provided in Section
2.07) and Debentures for whose payment money or Governmental Obligations has
theretofore been deposited in trust or segregated and held in trust by the
Company (and thereupon repaid to the Company or discharged from such trust, as
provided in Section 11.06); or (b) all Debentures of a series not theretofore
delivered to the Trustee for cancellation shall have become due and payable, or
are by their terms to become due and payable within one year or are to be
called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption, and the Company shall deposit
or cause to be deposited with the Trustee as trust funds the entire amount in
moneys or Governmental Obligations or a combination thereof, sufficient in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
at maturity or upon redemption all Debentures of that series not theretofore
delivered to the Trustee for cancellation, including principal (and premium, if
any) and interest due or to become due to such date of maturity or date fixed
for redemption, as the case may be, and if the Company shall also pay or cause
to be paid all other sums payable hereunder with respect to that series by the
Company, then this Indenture shall thereupon cease to be of further effect with
respect to such series except for the provisions of Sections 2.05, 2.07, 4.02
and 7.10, which shall survive until the date of maturity or redemption date, as
the case may be, and Sections 7.06 and 11.06 which shall survive to such date
and thereafter, and the Trustee, on demand of the Company and at the cost and
expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture with respect to such series.
SECTION 11.02. If at any time all such Debentures of a particular
series not heretofore delivered to the Trustee for cancellation or which have
not become due and payable as described in Section 11.01 shall have been paid
by the Company by depositing irrevocably with the Trustee as trust funds moneys
or an amount of Governmental Obligations sufficient to pay at maturity or upon
redemption all such Debentures of that series not theretofore delivered to the
Trustee for cancellation, including principal (and premium, if any) and
interest due or to become due to such date of maturity or date fixed for
redemption, as the case may be, and if
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the Company shall also pay or cause to be paid all other sums payable hereunder
by the Company with respect to that series, then after the date such moneys or
Governmental Obligations, as the case may be, are deposited with the Trustee
the obligations of the Company under this Indenture with respect to such series
shall cease to be of further effect except for the provisions of Sections 2.05,
2.07, 4.02, 7.06, 7.10 and 11.06 hereof which shall survive until such
Debentures shall mature and be paid. Thereafter, Sections 7.06 and 11.06 shall
survive. The release of the Company from its obligations under this Indenture,
as provided for in this Section 11.02, shall be subject to the further
condition that the Company first shall have caused to be delivered to the
Trustee an Opinion of Counsel to the effect that Debentureholders of a series
with respect to which a deposit has been made in accordance with this Section
11.02 will not realize income, gain or loss for federal income tax purposes as
a result of such deposit and release, and will be subject to federal income tax
on the same amount, in the same manner and at the same times as would have been
the case if such deposit and release had not occurred.
SECTION 11.03. If, in addition to satisfying the conditions set
forth in Section 11.01 or 11.02 (except for the requirement of an Opinion of
Counsel), the Company delivers to the Trustee an Opinion of Counsel to the
effect that (a) the Company has received from, or there has been published by,
the Internal Revenue Service a ruling or (b) since the date of this Indenture
there has been a change in applicable federal income tax law, in either case to
the effect that, and based thereon such Opinion of Counsel shall confirm that,
the Debentureholders of a series with respect to which a deposit has been made
in accordance with Section 11.01 or 11.02 will not realize income, gain or loss
for federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to federal income tax on the same amount, in the
same manner and at the same times, as would have been the case if such deposit,
defeasance and discharge had not occurred and (c) the deposit shall not result
in the Company, the Trustee or the trust being deemed an "investment company"
under the Investment Company Act of 1940, as amended, then, in such event, the
Company will be deemed to have paid and discharged the entire indebtedness on
that series and the holder thereof shall thereafter be entitled to receive
payment solely from the trust fund described above.
SECTION 11.04. All moneys or Governmental Obligations deposited with
the Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and
shall be available for payment as due, either directly or through any paying
agent (including the Company acting as its own paying agent), to the holders of
the particular series of Debentures for the payment or redemption of which such
moneys or Governmental Obligations have been deposited with the Trustee.
SECTION 11.05. In connection with the satisfaction and discharge of
this Indenture all moneys or Governmental Obligations then held by any paying
agent under the provisions of this Indenture shall, upon demand of the Company,
be paid to the Trustee
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and thereupon such paying agent shall be released from all further liability
with respect to such moneys or Governmental obligations.
SECTION 11.06. Any moneys or Governmental Obligations deposited with
any paying agent or the Trustee, or then held by the Company, in trust for
payment of principal of or premium or interest on the Debentures of a
particular series that are not applied but remain unclaimed by the holders of
such Debentures for at least two years after the date upon which the principal
of (and premium, if any) or interest on such Debentures shall have respectively
become due and payable, shall, upon written notice from the Company, be repaid
to the Company on May 31 of each year or (if then held by the Company) shall be
discharged from such trust; and thereupon the paying agent and the Trustee
shall be released from all further liability with respect to such moneys or
Governmental Obligations, and the holder of any of the Debentures entitled to
receive such payment shall thereafter, as an unsecured general creditor, look
only to the Company for the payment thereof.
ARTICLE TWELVE
Immunity of Incorporators, Stockholders, Officers
and Directors
SECTION 12.01. No recourse under or upon any obligation, covenant or
agreement of this Indenture, or of any Debenture, or for any claim based
thereon or otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, past, present or future as such, of the
Company or of any predecessor or successor corporation, either directly or
through the Company or any such predecessor or successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly understood that this
Indenture and the obligations issued hereunder are solely corporate
obligations, and that no such personal liability whatever shall attach to, or
is or shall be incurred by, the incorporators, stockholders, officers or
directors as such, of the Company or of any predecessor or successor
corporation, or any of them, because of the creation of the indebtedness hereby
authorized or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Debentures or implied therefrom;
and that any and all such personal liability of every name and nature, either
at common law, in equity or by constitution or statute, of, and any and all
such rights and claims against, every such incorporator, stockholder, officer
or director as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Debentures or implied therefrom,
are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issuance of such
Debentures.
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ARTICLE THIRTEEN
Miscellaneous Provisions
SECTION 13.01. All the covenants, stipulations, promises and
agreements in this Indenture contained by or on behalf of the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 13.02. Any act or proceeding by any provision of this
Indenture authorized or required to be done or performed by any board,
committee or officer of the Company shall and may be done and performed with
like force and effect by the corresponding board, committee or officer of any
corporation that shall at the time be the lawful sole successor of the Company.
SECTION 13.03. Except as otherwise expressly provided herein, any
notice or demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the holders of Debentures
to or on the Company may be given or served by being deposited first-class
postage prepaid in a post-office letter box addressed (until another address is
filed in writing by the Company with the Trustee), as follows: Portland
General Electric Company, 121 SW Salmon Street, Portland, Oregon 97204,
Attention: Corporate Secretary. Any notice, election, request or demand by
the Company or any Debentureholder to or upon the Trustee shall be deemed to
have been sufficiently given or made, for all purposes, if given or made in
writing at the Corporate Trust Office of the Trustee.
SECTION 13.04. This Indenture and each Debenture shall be deemed to
be a contract made under the laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of that State, without
regard to the conflicts of laws principles thereof.
SECTION 13.05. (a) Upon any application or demand by the Company to
the Trustee to take any action under any of the provisions of this Indenture,
the Company shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent, if any, provided for in this Indenture (including any
covenants compliance with which constitutes a condition precedent), relating to
the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any,
(including any covenants compliance with which constitutes a condition
precedent), have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant in this Indenture (other than the certificate provided pursuant to
Section 5.03(d) of this Indenture)
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shall include (1) a statement that the person making such certificate or
opinion has read such covenant or condition; (2) a brief statement as to the
nature and scope of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are based; (3) a statement
that, in the opinion of such person, such person has made such examination or
investigation as is necessary to enable such person to express an informed
opinion as to whether or not such covenant or condition has been complied with;
and (4) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.
SECTION 13.06. Simultaneously with the execution of this Indenture,
the Company shall deliver to the Trustee an Opinion of Counsel stating that, in
the opinion of such counsel, (a) this Indenture has been duly authorized by and
lawfully executed and delivered on behalf of the Company, is in full force and
effect and is legal, valid and binding upon the Company in accordance with its
terms, except to the extent limited by bankruptcy, insolvency, reorganization
or other laws affecting creditors' rights and (b) the Debentures have been
authorized, executed and delivered by the Company and constitute legal, valid
and binding obligations of the Company in accordance with their terms, except
to the extent limited by bankruptcy, insolvency, reorganization or other laws
affecting creditors' rights.
SECTION 13.07. Except as provided pursuant to Section 2.01 pursuant
to a Board Resolution, and as set forth in an Officers' Certificate, or
established in one or more indentures supplemental to this Indenture, in any
case where the date of maturity of interest or principal of any Debenture or
the date of redemption of any Debenture shall not be a Business Day then
payment of interest or principal (and premium, if any) may be made on the next
succeeding Business Day with the same force and effect as if made on the
nominal date of maturity or redemption, and no interest shall accrue for the
period after such nominal date.
SECTION 13.08. If and to the extent that any provision of this
Indenture limits, qualifies, or conflicts with the duties imposed by operation
of Section 3.18(c) of the Trust Indenture Act, such imposed duties shall
control.
SECTION 13.09. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute one and the same instrument.
SECTION 13.10. In case any one or more of the provisions contained
in this Indenture or in the Debentures of any series shall for any reason be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Indenture or of such Debentures, but this Indenture and such Debentures shall
be construed as if such invalid or illegal or unenforceable provision had never
been contained herein or therein.
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SECTION 13.11. The Company will have the right at all times to
assign any of its rights or obligations under this Indenture to Portland
General Corporation, an Oregon corporation, or a direct or indirect
wholly-owned subsidiary of said Portland General Corporation, including a
direct or indirect wholly-owned subsidiary of the Company; provided that, in
the event of any such assignment, the Company will remain liable for all such
obligations. Subject to the foregoing, the Indenture is binding upon and
inures to the benefit of the parties thereto and their respective successors
and assigns. The Indenture may not otherwise be assigned by the parties
thereto.
SECTION 13.12. The parties intend that, for each holder of a
Debenture and each person that acquires a beneficial ownership interest in a
Debenture, such Debentures shall constitute indebtedness for purposes of United
States federal, state and local taxes.
ARTICLE FOURTEEN
Subordination of Debentures
SECTION 14.01. The Company covenants and agrees, and each holder of
Debentures issued hereunder by the acceptance thereof likewise covenants and
agrees, that all Debentures shall be issued subject to the provisions of this
Article Fourteen; and each holder of a Debenture, whether upon original issue
or upon transfer or assignment thereof, accepts and agrees to be bound by such
provisions.
The payment of the principal of (and premium, if any) and interest on
all Debentures issued hereunder shall, to the extent and in the manner
hereinafter set forth, be subordinated and junior in right of payment to the
prior payment in full of all Senior Indebtedness, whether outstanding at the
date of this Indenture or thereafter incurred.
No provision of this Article Fourteen shall prevent the occurrence of
any default or Event of Default hereunder.
SECTION 14.02. In the event and during the continuation of any
default in the payment of principal, premium, interest or any payment due on
any Senior Indebtedness continuing beyond the period of grace, if any,
specified in the instrument evidencing such Senior Indebtedness (and the
Trustee has received written notice thereof from the Company or one or more
holders of Senior Indebtedness or their representative or representatives or a
trustee), unless and until such default shall have been cured or waived or
shall have ceased to exist and in the event that the maturity of any Senior
Indebtedness has been accelerated because of a default (and the Trustee has
received written notice thereof from the Company or one or more holders of
Senior Indebtedness or their representative or representatives or a trustee),
then no payment shall be made by the Company with respect to the principal
(including redemption and sinking fund payments ) of (or premium, if any) or
interest on the Debentures.
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In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee or any holder of a Debenture when such payment is
prohibited by the preceding paragraph of this Section 14.02, such payment shall
be held in trust for the benefit of, and shall be paid over or delivered to,
the holders of Senior Indebtedness or their respective representatives, or to
the trustee or trustees under any indenture pursuant to which any of such
Senior Indebtedness may have been issued, as their respective interests may
appear, but only to the extent that the holders of the Senior Indebtedness (or
their representative or representatives or a trustee) notify the Trustee within
90 days of such payment of the amounts then due and owing on the Senior
Indebtedness and only the amounts specified in such notice to the Trustee shall
be paid to the holders of Senior Indebtedness.
SECTION 14.03. Upon any payment by the Company, or distribution of
assets of the Company of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution, winding-up, liquidation or
reorganization of the Company, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due or
to become due upon all Senior Indebtedness shall first be paid in full or
payment thereof provided for in money in accordance with its terms, before any
payment is made on account of the principal (and premium, if any) or interest
on the Debentures; and upon any such dissolution, winding-up, liquidation or
reorganization, any payment by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
which the holders of the Debentures or the Trustee would be entitled, except
for the provisions of this Article Fourteen, shall be paid by the Company, by
any receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, by the holders of the Debentures or by the
Trustee under this Indenture if received by them or it directly to the holders
of Senior Indebtedness (pro rata to such holders on the basis of the respective
amounts of Senior Indebtedness held by such holders, as calculated by the
Company) or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any
Senior Indebtedness may have been issued, as their respective interests may
appear, to the extent necessary to pay all Senior Indebtedness in full, in
money or money's worth, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness, before any payment
or distribution is made to the holders of Debentures or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be received by
the Trustee or the holders of the Debentures before all Senior Indebtedness is
paid in full, or provision is made for such payment in money in accordance with
its terms, such payment or distribution shall be held in trust for the benefit
of and shall be paid over or delivered to the holders of Senior Indebtedness or
their representative or representatives, or
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to the trustee or trustees under any indenture pursuant to which any
instruments evidencing any Senior Indebtedness may have been issued, as their
respective interests may appear, as calculated by the Company, for application
to the payment of Senior Indebtedness remaining unpaid to the extent necessary
to pay all Senior Indebtedness in full in money in accordance with its terms,
after giving effect to any concurrent payment or distribution to or for the
holders of such Senior Indebtedness.
For purposes of this Article Fourteen, the words, "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this
Article Fourteen with respect to the Debentures to the payment of all Senior
Indebtedness which may at the time be outstanding; provided that (i) the Senior
Indebtedness is assumed by the new corporation, if any, resulting from any such
reorganization or readjustment, and (ii) the rights of the holders of the
Senior Indebtedness are not, without the consent of such holders, altered by
such reorganization or readjustment. The consolidation of the Company with, or
the merger of the Company into, another corporation or the liquidation or
dissolution of the Company following the conveyance or transfer of its property
as an entirety, or substantially as an entirety, to another corporation upon
the terms and conditions provided for in Article Ten hereof shall not be deemed
a dissolution, winding-up, liquidation or reorganization for the purposes of
this Section 14.03 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions
stated in Article Ten hereof. Nothing in Section 14.02 or in this Section
14.03 shall apply to claims of, or payments to, the Trustee under or pursuant
to Section 7.06.
SECTION 14.04. Subject to the payment in full of all Senior
Indebtedness, the rights of the holders of the Debentures shall be subrogated
to the rights of the holders of Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company applicable to the
Senior Indebtedness until the principal of (and premium, if any) and interest
on the Debentures shall be paid in full; and, for the purposes of such
subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the holders of the
Debentures or the Trustee would be entitled except for the provisions of this
Article Fourteen, and no payment over pursuant to the provisions of this
Article Fourteen, to or for the benefit of the holders of Senior Indebtedness
by holders of the Debentures or the Trustee, shall, as between the Company, its
creditors other than holders of Senior Indebtedness, and the holders of the
Debentures, be deemed to be a payment by the Company to or on account of the
Senior Indebtedness. It is understood that the provisions of this Article
Fourteen are and are intended solely for the purposes of defining the relative
rights of the holders of the Debentures, on the one hand, and the holders of
the Senior Indebtedness on the other hand.
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Nothing contained in this Article Fourteen or elsewhere in this
Indenture or in the Debentures is intended to or shall impair, as between the
Company, its creditors other than the holders of Senior Indebtedness, and the
holders of the Debentures, the obligation of the Company, which is absolute and
unconditional, to pay to the holders of the Debentures the principal of (and
premium, if any) and interest on the Debentures as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the holders of the Debentures and creditors
of the Company other than the holders of the Senior Indebtedness, nor shall
anything herein or therein prevent the Trustee or the holder of any Debenture
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article
Fourteen of the holders of Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article Fourteen, the Trustee, subject to the provision of Section
7.01, and the holders of the Debentures shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which such
dissolution, winding-up, liquidation or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidation trustee,
agent or other person making such payment or distribution, delivered to the
Trustee or to the holders of the Debentures, for the purposes of ascertaining
the persons entitled to participate in such distribution, the holders of the
Senior Indebtedness and other indebtedness of the Company, the amount hereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article Fourteen.
SECTION 14.05. Each holder of a Debenture by acceptance thereof
authorizes and directs the Trustee in his, her or its behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article Fourteen and appoints the Trustee his attorney-in-fact
for any and all such purposes.
SECTION 14.06. The Company shall give prompt written notice to a
Responsible Officer of the Trustee of any fact known to the Company which would
prohibit the making of any payment of monies to or by the Trustee or paying
agent in respect of the Debentures pursuant to the provisions of this Article
Fourteen. Notwithstanding the provisions of this Article Fourteen or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment of
monies to or by the Trustee or paying agent in respect of the Debentures
pursuant to the provisions of this Article Fourteen, unless and until a
Responsible Officer of the Trustee shall have received written notice thereof
at the Corporate Trust Office of the Trustee from the Company or a holder or
holders of Senior Indebtedness or from any trustee therefor, and before the
receipt of any such written notice, the Trustee, subject
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to the provisions of Section 7.01, shall be entitled in all respects to assume
that no such facts exist; provided that if the Trustee shall not have received
the notice provided for in this Section 14.06 at least two Business Days prior
to the date upon which by the terms hereof any money may become payable for any
purpose (including, without limitation, the payment of the principal of (or
premium, if any) or interest on any Debenture), then, anything herein contained
to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such money and to apply the same to the purposes for which
they were received, and shall not be affected by any notice to the contrary
which may be received by it within two Business Days prior to such date.
The Trustee, subject to the provisions of Section 7.01, shall be
entitled to rely on the delivery to it of a written notice by a person
representing himself to be a holder of Senior Indebtedness (or a trustee on
behalf of such holder) to establish that such notice has been given by a holder
of Senior Indebtedness or a trustee on behalf of any such holder or holders.
In the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article Fourteen, the Trustee may request such person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such person, the extent to which such person is entitled
to participate in such payment or distribution and any other facts pertinent to
the rights of such person under this Article Fourteen, and if such evidence is
not furnished the Trustee may defer any payment to such person pending judicial
determination as to the right of such person to receive such payment.
SECTION 14.07. The Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article Fourteen in respect of any
Senior Indebtedness at any time held by it, to the same extent as any other
holder of Senior Indebtedness, and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article Fourteen, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not
be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and,
subject to the provisions of Section 7.01, the Trustee shall not be liable to
any holder of Senior Indebtedness if it shall pay over or deliver to holders of
Debentures, the Company or any other person money or assets to which any holder
of Senior Indebtedness shall be entitled by virtue of this Article Fourteen or
otherwise.
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SECTION 14.08. No right of any present or future holder of any
Senior Indebtedness to enforce subordination as herein provided shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or by any act or failure to act, in good faith, by any such
holder, or by any noncompliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof which any such
holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the holders of the
Debentures, without incurring responsibility to the holders of the Debentures
and without impairing or releasing the subordination provided in this Article
or the obligations hereunder of the holders of the Debentures to the holders of
Senior Indebtedness, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Indebtedness, or otherwise amend or supplement in any manner
Senior Indebtedness or any instrument evidencing the same or any agreement
under which Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Indebtedness; (iii) release any person liable in any manner for the
collection of Senior Indebtedness; and (iv) exercise or refrain from exercising
any rights against the Company and any other person.
The Bank of New York, as Trustee, hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions hereinabove set
forth.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
PORTLAND GENERAL ELECTRIC COMPANY
By: ____________________________
Name: __________________________
Title: _________________________
Attest: [SEAL]
__________________________________
THE BANK OF NEW YORK, as Trustee
By: ____________________________
Name: __________________________
Title: _________________________
Attest: [SEAL]
__________________________________
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State of Oregon )
) ss.:
County of Multnomah )
_______________ and _______________, a
_______________ and the _______________, respectively, of PORTLAND GENERAL
ELECTRIC COMPANY, an Oregon corporation, being first duly sworn, on oath depose
and say that they are the officers above named of said corporation and that
they executed the foregoing instrument in their authorized capacities for and
on behalf of said corporation by authority of its Board of Directors.
Subscribed and sworn to before me this __________ day of ____________________,
199__.
______________________________
Notary Public for Oregon
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State of __________ )
) ss.:
County of _________ )
_______________ and _______________, a
_______________ and the _______________, respectively, of THE BANK OF NEW YORK,
a New York banking corporation, being first duly sworn, on oath depose and say
that they are the officers above named of said corporation and that they
executed the foregoing instrument in their authorized capacities for and on
behalf of said corporation pursuant to its bylaws or by authority of its Board
of Directors.
Subscribed and sworn to before me this __________ day of ____________________,
199__.
______________________________
Notary Public for ____________
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1
EXHIBIT (4)(c)
PORTLAND GENERAL ELECTRIC COMPANY
AND
THE BANK OF NEW YORK
as Trustee
___________________________
_______________ SUPPLEMENTAL INDENTURE
Dated as of _________________ ___, 199___
TO
INDENTURE
Dated as of September 1, 1995
___________________________
________% Junior Subordinated Deferrable Interest Debentures, Series ___
2
_______________ SUPPLEMENTAL INDENTURE, dated as of the
__________ day of _______________, 199___ (the "_______________ Supplemental
Indenture"), between Portland General Electric Company, a corporation duly
organized and existing under the laws of the State of Oregon (hereinafter
sometimes referred to as the "Company"), and THE BANK OF NEW YORK, a New York
banking corporation organized and existing under the laws of the State of New
York, as trustee (hereinafter sometimes referred to as the "Trustee") under the
Indenture dated as of September 1, 1995 between the Company and the Trustee
(the "Indenture;" all terms used and not defined herein are used as defined in
the Indenture).
WHEREAS, the Company executed and delivered the Indenture to
the Trustee to provide for the future issuance of its junior subordinated
debentures (the "Debentures"), which Debentures are to be issued from time to
time in such series as may be determined by the Company under the Indenture, in
an unlimited aggregate principal amount which may be authenticated and
delivered thereunder as in the Indenture provided; and
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its Debentures to
be known as its __________% Junior Subordinated Deferrable Interest Debentures,
Series ___ (such series being hereinafter referred to as the "Series ___
Debentures"), the form and substance of such Series ___ Debentures and the
terms, provisions and conditions thereof to be set forth as provided in the
Indenture and this _______________ Supplemental Indenture; and
WHEREAS, the Company desires and has requested the Trustee to
join with it in the execution and delivery of this _______________ Supplemental
Indenture, and all requirements necessary to make this _______________
Supplemental Indenture a valid instrument, in accordance with its terms, and to
make the Series ___ Debentures, when executed by the Company and authenticated
and delivered by the Trustee, the valid obligations of the Company, have been
performed and fulfilled, and the execution and delivery hereof have been in all
respects duly authorized;
NOW, THEREFORE, in consideration of the purchase and
acceptance of the Series ___ Debentures by the holders thereof, and for the
purpose of setting forth, as provided in the Indenture, the form and substance
of the Series ___ Debentures and the terms, provisions and conditions thereof,
the Company covenants and agrees with the Trustee as follows:
ARTICLE ONE
General Terms and Conditions of the Series ___ Debentures
SECTION 1.01. There shall be and is hereby authorized a
series of Debentures designated the "__________% Junior Subordinated Deferrable
Interest Debentures, Series ___," limited
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in aggregate principal amount to $_______________, which amount shall be as set
forth in any Company Order for the authentication and delivery of Series ___
Debentures. The Series ___ Debentures shall mature and the principal shall be
due and payable, together with all accrued and unpaid interest thereon, on
_________________________, and shall be issued in the form of registered Series
___ Debentures without coupons.
SECTION 1.02. The Series ___ Debentures shall be issued as a
Global Debenture and registered in the name of the Depository or its nominee.
The Depository for the Series ___ Debentures shall be The Depository Trust
Company, New York, New York, subject to the appointment of a successor
Depository as provided in the Indenture. Series ___ Debentures represented by
the Global Debenture will not be exchangeable for, and will not otherwise be
issuable as, Series ___ Debentures in certificated form, except in the event
that the Company discontinues its use of a Depository. Principal of and
interest on the Series ___ Debentures issued in certificated form will be
payable, the transfer of such Series ___ Debentures will be registrable and
such Series ___ Debentures will be exchangeable for Series ___ Debentures
bearing identical terms and provisions at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York;
provided, however, that payment of interest may be made at the option of the
Company by check mailed to the registered holder at such address as shall
appear in the Debenture Register or by wire transfer to an account maintained
by the registered holder as specified in the Debenture Register. The Trustee
will act as paying agent for the Series ___ Debentures so long as the Series
___ Debentures are represented by a Global Debenture. Payments of principal of
and interest on the Series ___ Debentures issued as a Global Debenture will be
made to the Depository.
SECTION 1.03. Each Series ___ Debenture will bear interest at
the rate of __________% per annum from and including the original date of
issuance or from the most recent Interest Payment Date referred to below to
which interest has been paid or duly provided for until the principal thereof
becomes due and payable, and on any overdue principal and (to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest at the same rate per annum, payable quarterly in
arrears on _______________, _______________, _______________ and
_______________ of each year (each, an "Interest Payment Date"), commencing on
____________________, to the person in whose name such Series ___ Debenture or
any Predecessor Debenture of a Series ___ Debenture is registered at the close
of business on the Business Day next preceding each such Interest Payment Date
(each, a "Record Date"); provided, however, that if the Series ___ Debentures
shall not remain in the form of a Global Debenture, the Company shall have the
right to select another record date, which shall be any day prior to, but not
more than 15 days preceding, an Interest Payment Date. Any such interest
installment not punctually paid or duly provided for on any Interest Payment
Date shall forthwith cease to be payable to the registered holder on the
relevant Record
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Date, and may be paid to the person in whose name the Series ___ Debenture (or
one or more predecessor Debentures) is registered at the close of business on a
special record date to be fixed by the Trustee for the payment of such
defaulted interest, notice whereof shall be given to the registered holders of
the Series ___ Debentures not less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Series ___
Debentures may then be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture; provided, however, that
interest (other than interest described in the next sentence) shall not be
considered payable by the Company on any Interest Payment Date falling within
an Extension Period (as defined in Section 3.01 below), unless the Company has
elected to make a full or partial payment of interest accrued on the Series ___
Debentures on that Interest Payment Date. Any partial payment of interest
accrued on the Series ___ Debentures on any Interest Payment Date falling
within an Extension Period shall be paid pro rata to the registered holders of
such Debentures on the relevant Record Date in respect of such Interest Payment
Date, determined in accordance with Section 3.01 of this Supplemental
Indenture, based upon the principal amount of Series ___ Debentures then held
by such registered holders.
The amount of interest payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months and, for any period
shorter than a full calendar month, on the basis of the actual number of days
elapsed in such period. In the event that any date on which interest is
payable on the Series ___ Debentures is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding day which is
a Business Day (and without any interest or other payment in respect of any
such delay), except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date.
ARTICLE TWO
Redemption of the Series ___ Debentures
Subject to the terms of Article Three of the Indenture, the
Company shall have the right to redeem the Series ___ Debentures, in whole or
in part, from time to time, on or after _______________ ___, ______, at a
redemption price equal to ___% of the principal amount of Series ___ Debentures
to be redeemed plus any accrued and unpaid interest thereon to the date of such
redemption. If the Series ___ Debentures are only partially redeemed pursuant
to this Section, the Series ___ Debentures will be redeemed by lot or by any
other method utilized by the Trustee.
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ARTICLE THREE
Extension of Interest Payment Period
SECTION 3.01. Subject to Section 4.06 of the Indenture, so
long as the Company shall not be in default in the payment of interest on the
Series ___ Debentures, the Company shall have the right, at any time during the
term of the Series ___ Debentures, to extend any interest payment period of
such Series ___ Debentures at any time and from time to time for a period not
to exceed 20 consecutive calendar quarters from the last Interest Payment Date
to which interest was paid in full (each, an "Extension Period"), provided that
such Extension Period ends on another Interest Payment Date. No interest shall
be due and payable during an Extension Period, but on the Interest Payment Date
occurring at the end of each Extension Period the Company shall pay to the
holders of record on the Record Date for such Interest Payment Date (regardless
of who the holders of record may have been on other dates during such Extension
Period) all accrued and unpaid interest on the Series ___ Debentures, together
with interest thereon at the rate specified for the Series ___ Debentures.
Prior to the termination of any Extension Period, the Company may pay all or
(subject to the last sentence of the first paragraph of Section 1.03 above)
any portion of the interest accrued on the Series ___ Debentures on any Interest
Payment Date to holders of record on the Record Date for that Interest Payment
Date or may from time to time further extend such Extension Period, provided
that any such Extension Period, together with all such previous and further
extensions thereof, shall not exceed 20 consecutive calendar quarters. If
the Company shall elect to pay all of the interest accrued on the Series ___
Debentures on an Interest Payment Date during an Extension Period, that
Extension Period shall automatically terminate on that Interest Payment Date.
Upon the termination of an Extension Period and the payment of all amounts of
interest then due, the Company may commence a new Extension Period, subject to
the foregoing requirements.
SECTION 3.02. The Company shall give the Trustee written
notice of (i) any election by the Company to initiate an Extension Period and
the duration thereof, (ii) any election by the Company to extend an Extension
Period beyond the Interest Payment Date on which that Extension Period is then
scheduled to terminate and the duration of such extension and (iii) any
election by the Company to make a full or partial payment of interest accrued
on the Series ___ Debentures on any Interest Payment Date during an Extension
Period and the amount of such payment. In no event shall such notice by the
Company be given less than 15 Business Days prior to the later of (A) the
Record Date next preceding the applicable Interest Payment Date and (B) five
Business Days prior to such Interest Payment Date. Upon receipt of any such
notice, the Trustee shall give written notice of the Company's election by mail
to the Series ___ Debentureholders not less than 10 Business Days prior to such
Interest Payment Date. The Company shall make a public announcement of any
such election in accordance with New York
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Stock Exchange rules not less than five Business Days prior to such
Record Date.
ARTICLE FOUR
Form of Series ___ Debenture
The Series ___ Debentures and the Trustee's Certificate of
Authentication to be endorsed thereon are to be substantially in the following
forms:
(FORM OF FACE OF DEBENTURE)
This Debenture is a Global Debenture within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depository
or a nominee of a Depository. This Debenture is exchangeable for Debentures
registered in the name of a person other than the Depository or its nominee
only in the limited circumstances described in the Indenture, and no transfer
of this Debenture (other than a transfer of this Debenture as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository) may be registered except
in limited circumstances described in the Indenture.
Unless this Debenture is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York) to
the issuer or its agent for registration of transfer, exchange or payment, and
any Debenture issued is registered in the name of Cede & Co., or such other
name as requested by an authorized representative of The Depository Trust
Company, and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
No. _________________________ $___________________
CUSIP No. ___________________
__________% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE,
SERIES ___
Portland General Electric Company, a corporation duly
organized and existing under the laws of the State of Oregon (herein referred
to as the "Company", which term includes any successor corporation under the
Indenture), for value received, hereby promises to pay
to_____________________________, or registered assigns, the principal sum of
$_________________ Dollars on _______________ ___, ______, and to pay interest
on such principal sum from and including _______________ ______, ______ or from
the most recent interest payment date (each such date, an "Interest Payment
Date") to which interest has been paid or duly provided for, payable quarterly
in arrears on
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_______________, _______________, _______________, and _______________ of each
year, commencing on _______________ ____, ______, at the rate of __________%
per annum until the principal hereof shall have become due and payable and on
any overdue principal and premium, if any, and (to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment
of interest at the same rate per annum. The amount of interest payable on any
Interest Payment Date shall be computed on the basis of a 360-day year of
twelve 30-day months and, for any period shorter than a full calendar month, on
the basis of the actual number of days elapsed in such period. In the event
that any date on which interest is payable on this Debenture is not a Business
Day, then payment of interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date. The interest installment so payable, and punctually
paid or duly provided for on any Interest Payment Date will, as provided in the
Indenture, be paid to the person in whose name this Debenture (or one or more
Predecessor Debentures, as defined in the Indenture) is registered at the close
of business on the Business Day next preceding that Interest Payment Date
(each, a "Record Date"); provided, however, that if this Debenture shall not
remain in the form of a Global Debenture, the Company shall have the right to
select another record date, which shall be any day prior to, but not more than
15 days preceding, an Interest Payment Date. Any such interest installment not
punctually paid or duly provided for on any Interest Payment Date shall
forthwith cease to be payable to the registered holder on the relevant Record
Date, and may be paid to the person in whose name this Debenture (or one or
more Predecessor Debentures) is registered at the close of business on a
special record date to be fixed by the Trustee for the payment of such
defaulted interest, notice whereof shall be given to the registered holders of
this series of Debentures not less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any exchange on which Debentures of this series may
then be listed, and upon such notice as may be required by such exchange, all
as more fully provided in the Indenture hereinafter referred to; provided,
however, that interest shall not be considered payable by the Company on any
Interest Payment Date falling within an Extension Period (as defined below),
unless the Company has elected to make a full or partial payment of interest
accrued on this Debenture on that Interest Payment Date. Any partial payment
of interest accrued on this series of Debentures on any Interest Payment Date
falling within an Extension Period shall be paid pro rata to the registered
holder of this Debenture on the relevant Record Date in respect of such
Interest Payment Date (determined in accordance with the provisions on the
reverse of this Debenture) based upon the principal amount of this Debenture in
relation to the aggregate principal amount of all Debentures of this series
then outstanding. The principal of and the interest on this
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Debenture shall be payable at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan, The City of New York, in any coin
or currency of the United States of America which at the time of payment is
legal tender for payment of public and private debts; provided, however, that
payment of interest may be made at the option of the Company by check mailed to
the registered holder at such address as shall appear in the Debenture Register
or, with respect to a registered holder of $1,000,000 or more in aggregate
principal amount of Debentures who has delivered a written request to the
Trustee at least 14 days prior to the relevant Interest Payment Date electing
to have payments made by wire transfer to a designated account in the United
States, by wire transfer of immediately available funds to such designated
account.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinated and junior in right of payment to the
prior payment in full of all Senior Indebtedness, and this Debenture is issued
subject to the provisions of the Indenture with respect thereto. Each holder
of this Debenture, by accepting the same, (a) agrees to and shall be bound by
such provisions, (b) authorizes and directs the Trustee on its behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee its attorney-in-fact for
any and all such purposes. Each holder hereof, by its acceptance hereof,
hereby waives all notice of the acceptance of the subordination provisions
contained herein and in the Indenture by each holder of Senior Indebtedness,
whether now outstanding or hereafter incurred, and waives reliance by each such
holder upon those provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been signed
by or on behalf of the Trustee.
The provisions of this Debenture are contained on the reverse
side hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Instrument to
be executed.
Dated: _________________________
By ___________________________
Its:
Attest:
____________________________
[Title]
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(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures
described in the within-mentioned Indenture.
THE BANK OF NEW YORK
_________________________ or ______________________________
as Trustee as Authentication Agent
By ______________________ ______________________________
Authorized Signatory Authorized Signatory
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of
debentures of the Company (herein sometimes referred to as the "Debentures"),
specified in the Indenture (as defined below), all issued or to be issued in
one or more series under and pursuant to an Indenture dated as of September 1,
1995 duly executed and delivered between the Company and THE BANK OF NEW YORK,
a New York banking corporation duly organized and existing under the laws of
the State of New York, as Trustee (herein referred to as the "Trustee"), as
supplemented by the _______________ Supplemental Indenture dated as of
_______________ _____, ______ between the Company and the Trustee (such
Indenture as so supplemented being hereinafter referred to as the "Indenture"),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a description of the rights, limitations of rights, obligations,
duties, and immunities thereunder of the Trustee, the Company and the holders
of the Debentures. By the terms of the Indenture, the Debentures are issuable
in series which may vary as to amount, date of maturity, rate of interest and
in other respects as in the Indenture provided. This series of Debentures is
limited in aggregate principal amount as specified in the _______________
Supplemental Indenture.
Subject to the terms of Article Three of the Indenture, the
Company shall have the right to redeem the Debentures of this series at the
option of the Company, without premium or penalty, in whole or in part at any
time and from time to time on or after _______________ ____, ______ (an
"Optional Redemption"), at a redemption price equal to ______% of the principal
amount of the Debentures of this series to be redeemed plus any accrued and
unpaid interest thereon to the date of such redemption. If the Debentures of
this series are only partially redeemed by the Company pursuant to an Optional
Redemption, the Debentures of this series will be redeemed by lot or by any
other method utilized by the Trustee.
In the event of redemption of this Debenture in part only, a
new Debenture or Debentures of this series for the unredeemed portion hereof
will be issued in the name of the holder hereof upon the cancellation hereof.
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In case an Event of Default, as defined in the Indenture, with
respect to the Debentures of this series shall have occurred and be continuing,
the principal of all of the Debentures of this series may be declared, and upon
such declaration shall become, due and payable, in the manner, with the effect
and subject to the conditions provided in the Indenture.
The Indenture contains provisions for defeasance at any time
of the entire indebtedness of the Debentures of this series upon compliance by
the Company with certain conditions set forth therein.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the
time outstanding, as defined in the Indenture, to execute supplemental
indentures for the purpose of adding any provisions to, changing in any manner
or eliminating any of the provisions of the Indenture or of any supplemental
indenture or of modifying in any manner the rights of the holders of the
Debentures; provided, however, that no such supplemental indenture shall (i)
extend the fixed maturity of any Debentures of any series, reduce the principal
amount thereof, reduce the rate or extend the time of payment of interest
thereon or reduce any premium payable upon the redemption thereof, without the
consent of the holder of each Debenture so affected or (ii) reduce the
aforesaid percentage of Debentures, the holders of which are required to
consent to any such supplemental indenture, without the consent of the holders
of each Debenture then outstanding and affected thereby. The Indenture also
contains provisions permitting the holders of a majority in aggregate principal
amount of the Debentures of all series at the time outstanding affected
thereby, on behalf of the holders of the Debentures of such series, to waive
any past default in the performance of any of the covenants contained in the
Indenture, or established pursuant to the Indenture with respect to such
series, and its consequences, except a default in the payment of the principal
of or premium, if any, or interest on any of the Debentures of such series,
which default may be waived by the unanimous consent of the holders affected.
Any such consent or waiver by the registered holder of this Debenture (unless
revoked as provided in the Indenture) shall be conclusive and binding upon such
holder and upon all future holders and owners of this Debenture and of any
Debenture issued in exchange herefor or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether or not any
notation of such consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Debenture at the time and place and at the rate and in the
money herein prescribed.
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Subject to Section 4.06 of the Indenture, so long as the
Company shall not be in default in the payment of interest on this series of
Debentures, the Company shall have the right, at any time during the term of
this series of Debentures, to extend any interest payment period of this series
of Debentures at any time and from time to time for a period not to exceed 20
consecutive calendar quarters from the last Interest Payment Date to which
interest was paid in full (each, an "Extension Period"), provided that such
Extension Period ends on another Interest Payment Date. No interest shall be
due and payable during an Extension Period, but on the Interest Payment Date
occurring at the end of each Extension Period the Company shall pay to the
holders of record on the Record Date for such Interest Payment Date (regardless
of who the holders of record may have been on other dates during such Extension
Period) all accrued and unpaid interest on this series of Debentures, together
with interest thereon, at the rate specified for this series of Debentures.
Prior to the termination of any Extension Period, the Company may pay all or
(subject to the provisions concerning pro rata payment in the penultimate
sentence of the first paragraph on the face of this Debenture) any portion of
the interest accrued on this series of Debentures on any Interest Payment Date
to holders of record on the Record Date for that Interest Payment Date or may
from time to time further extend such Extension Period, provided that any such
Extension Period, together with all such previous and further extensions
thereof, shall not exceed 20 consecutive calendar quarters. If the Company
shall elect to pay all of the interest accrued on this series of Debentures on
an Interest Payment Date during an Extension Period, that Extension Period
shall automatically terminate on that Interest Payment Date. Upon the
termination of an Extension Period and the payment of all amounts of interest
then due, the Company may commence a new Extension Period, subject to the
foregoing requirements.
As provided in the Indenture and subject to certain
limitations therein set forth, this Debenture is transferable by the registered
holder hereof on the Debenture Register of the Company, upon surrender of this
Debenture for registration of transfer at the office or agency of the Company
designated for such purpose in the Borough of Manhattan, The City of New York
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company and the Trustee duly executed by the registered
holder hereof or its attorney duly authorized in writing and thereupon one or
more new Debentures of authorized denominations and for the same aggregate
principal amount and series will be issued to the designated transferee or
transferees. No service charge will be made for any such transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and any Debenture
Registrar may deem and treat the registered holder hereof as the absolute owner
hereof (whether or not this
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Debenture shall be overdue and notwithstanding any notice of ownership or
writing hereon made by anyone other than the Debenture Registrar) for the
purpose of receiving payment of or on account of the principal hereof, and
interest due hereon and for all other purposes, and neither the Company nor the
Trustee nor any paying agent nor any Debenture Registrar shall be affected by
any notice to the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Debenture, or for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
This Global Debenture is exchangeable for Debentures in
certificated form only under certain limited circumstances set forth in the
Indenture. The Debentures of this series are issuable only in registered form
without coupons in denominations of $______ and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations herein and
therein set forth, Debentures of this series so issued are exchangeable for a
like aggregate principal amount of Debentures of this series of a different
authorized denomination, as requested by the holder surrendering the same.
All terms used in this Debenture which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
ARTICLE FIVE
Original Issue of Series ___ Debentures
Series ___ Debentures in the aggregate principal amount of
$_______________ may, upon execution of this _______________ Supplemental
Indenture, or from time to time thereafter, be executed by the Company and
delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver such Debentures to the Company or upon a Company
Order, without any further action by the Company.
ARTICLE SIX
Miscellaneous Provisions
SECTION 6.01. Except as otherwise expressly provided in this
_______________ Supplemental Indenture or in the form of Series ___ Debenture
or otherwise clearly required by the context hereof or thereof, all terms used
herein or in the form of Series
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___ Debenture that are defined in the Indenture shall have the several meanings
respectively assigned to them thereby.
SECTION 6.02. The Indenture, as supplemented by this
_______________ Supplemental Indenture, is in all respects ratified and
confirmed, and this _______________ Supplemental Indenture shall be deemed part
of the Indenture in the manner and to the extent herein and therein provided.
SECTION 6.03. The recitals herein contained are made by the
Company and not by the Trustee, and the Trustee assumes no responsibility for
the correctness thereof. The Trustee makes no representation as to the
validity or sufficiency of this _______________ Supplemental Indenture or of
the Series _____ Debentures.
SECTION 6.04. This _______________ Supplemental Indenture may
be executed in any number of counterparts, each of which shall be an original;
but such counterparts shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
_______________ Supplemental Indenture to be duly executed, and their
respective corporate seals to be hereunto affixed and attested, on the date or
dates indicated in the acknowledgments and as of the day and year first above
written.
By: __________________________
Attest:
_______________________________
THE BANK OF NEW YORK, as Trustee
By: __________________________
Attest:
_______________________________
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EXHIBIT 4(g)
================================================================================
PORTLAND GENERAL ELECTRIC COMPANY
TO
MARINE MIDLAND BANK
(FORMERLY THE MARINE MIDLAND TRUST
COMPANY OF NEW YORK)
Trustee.
________________________
SUPPLEMENTAL INDENTURE
Dated ________, 199_
_________________________
$____________ First Mortgage Bonds,
_____% Series due _________
________________________
Supplemental to Indenture of Mortgage and Deed of Trust,
dated July 1, 1945 of Portland General Electric Company.
================================================================================
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___________________ SUPPLEMENTAL INDENTURE, dated __________,
199__ made by and between Portland General Electric Company, an Oregon
corporation (hereinafter called the "Company"), party of the first part, and
Marine Midland Bank (formerly The Marine Midland Trust Company of New York), a
New York banking corporation and trust company (hereinafter called the
"Trustee"), party of the second part.
WHEREAS, the Company has heretofore executed and delivered its
Indenture of Mortgage and Deed of Trust (herein sometimes referred to as the
"Original Indenture"), dated July 1, 1945, to the Trustee to secure an issue of
First Mortgage Bonds of the Company; and
WHEREAS, Bonds in the aggregate principal amount of $34,000,000 have
heretofore been issued under and in accordance with the terms of the Original
Indenture as Bonds of an initial series designated "First Mortgage Bonds,
3-1/8% Series due 1975" (herein sometimes referred to as the "Bonds of the 1975
Series"); and
WHEREAS, the Company has heretofore executed and delivered to the
Trustee several supplemental indentures which provided, among other things, for
the creation or issuance of several new series of First Mortgage Bonds under
the terms of the Original Indenture as follows:
Supplemental Principal
Indenture Dated Series Amount
------------ ----- ------ ---------
First 11-1-47 3-1/2% Series due 1977 $ 6,000,000 (1)
Second 11-1-48 3-1/2% Series due 1977 4,000,000 (1)
Third 5-1-52 3-1/2% Second Series due 1977 4,000,000 (1)
Fourth 11-1-53 4-1/8% Series due 1983 8,000,000 (2)
Fifth 11-1-54 3-3/8% Series due 1984 12,000,000 (1)
Sixth 9-1-56 4-1/4% Series due 1986 16,000,000 (1)
Seventh 6-1-57 4-7/8% Series due 1987 10,000,000 (1)
Eighth 12-1-57 5-1/2% Series due 1987 15,000,000 (3)
Ninth 6-1-60 5-1/4% Series due 1990 15,000,000 (1)
Tenth 11-1-61 5-1/8% Series due 1991 12,000,000 (1)
Eleventh 2-1-63 4-5/8% Series due 1993 15,000,000 (1)
Twelfth 6-1-63 4-3/4% Series due 1993 18,000,000 (1)
Thirteenth 4-1-64 4-3/4% Series due 1994 18,000,000 (1)
Fourteenth 3-1-65 4.70% Series due 1995 14,000,000 (1)
Fifteenth 6-1-66 5-7/8% Series due 1996 12,000,000
Sixteenth 10-1-67 6.60% Series due October 1, 1997 24,000,000
Seventeenth 4-1-70 8-3/4% Series due April 1, 1977 20,000,000 (1)
Eighteenth 11-1-70 9-7/8% Series due November 1, 2000 20,000,000 (4)
Nineteenth 11-1-71 8% Series due November 1, 2001 20,000,000 (4)
Twentieth 11-1-72 7-3/4% Series due November 1, 2002 20,000,000
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Twenty-first 4-1-73 7.95% Series due April 1, 2003 35,000,000
Twenty-second 10-1-73 8-3/4% Series due October 1, 2003 17,000,000 (4)
Twenty-third 12-1-74 10-1/2% Series due December 1, 1980 40,000,000 (1)
Twenty-fourth 4-1-75 10% Series due April 1, 1982 40,000,000 (1)
Twenty-fifth 6-1-75 9-7/8% Series due June 1, 1985 27,000,000 (1)
Twenty-sixth 12-1-75 11-5/8% Series due December 1, 2005 50,000,000 (4)
Twenty-seventh 4-1-76 9-1/2% Series due April 1, 2006 50,000,000 (4)
Twenty-eighth 9-1-76 9-3/4% Series due September 1, 1996 62,500,000 (4)
Twenty-ninth 6-1-77 8-3/4% Series due June 1, 2007 50,000,000 (4)
Thirtieth 10-1-78 9.40% Series due January 1, 1999 25,000,000 (4)
Thirty-first 11-1-78 9.80% Series due November 1, 1998 50,000,000 (4)
Thirty-second 2-1-80 13-1/4% Series due February 1, 2000 55,000,000 (4)
Thirty-third 8-1-80 13-7/8% Series due August 1, 2010 75,000,000 (4)
Thirty-sixth 10-1-82 13-1/2% Series due October 1, 2012 75,000,000 (4)
Thirty-seventh 11-15-84 11-5/8% Extendable Series A due
November 15, 1999 75,000,000 (4)
Thirty-eighth 6-1-85 10-3/4% Series due June 1, 1995 60,000,000 (4)
Thirty-ninth 3-1-86 9-5/8% Series due March 1, 2016 100,000,000 (4)
Fortieth 10-1-90 Medium Term Note Series 200,000,000
Forty-first 12-1-91 Medium Term Note Series I 150,000,000
Forty-second 4-1-93 7-3/4% Series due April 15, 2023 150,000,000
Forty-third 7-1-93 Medium Term Note Series II 75,000,000
Forty-fourth 8-1-94 Medium Term Note Series III 75,000,000
Forty-fifth 5-1-95 Medium Term Note Series IV 75,000,000
Forty-______ _______ ____________________________ ______________
_____________ _________ _______ __________________, _____ ____________ ____
(1) Paid in full at maturity.
(2) This entire issue of Bonds was redeemed out of proceeds from the sale
of First Mortgage Bonds, 3-3/8% Series due 1984.
(3) This entire issue of Bonds was redeemed out of proceeds from the sale
of First Mortgage Bonds, 4-5/8% Series due 1983.
(4) Redeemed in full prior to maturity.
which bonds are sometimes referred to herein as the "Bonds of the 1977 Series",
"Bonds of the 1977 Second Series", "Bonds of the 1983 Series", "Bonds of the
1984 Series", "Bonds of the 1986 Series", "Bonds of the 4-7/8% Series due
1987", "Bonds of the 5-1/2% Series due 1987", "Bonds of the 1990 Series",
"Bonds of the 1991 Series", "Bonds of the 4-5/8% Series due 1993", "Bonds of
the 4-3/4% Series due 1993", "Bonds of the 1994 Series", "Bonds of the 1995
Series", "Bonds of the 1996 Series", "Bonds of the 1997 Series", "Bonds of the
1977 Third Series", "Bonds of the 2000 Series", "Bonds of the 2001 Series",
"Bonds of the 2002 Series", "Bonds of the 2003 Series", "Bonds of the 2003
Second Series", "Bonds of the 1980 Series", "Bonds of the 1982 Series", "Bonds
of the 1985 Series", "Bonds of the 2005 Series", "Bonds of the 2006 Series",
"Bonds of the 1996 Second Series", "Bonds of the 2007 Series", "Bonds of the
1999 Series", "Bonds of the 1998 Series", "Bonds of the 2000 Second Series",
"Bonds of the 2010 Series", "Bonds of the 2012 Series", "Bonds of the
Extendable Series A", "Bonds of the 1995 Second Series", "Bonds of the 2016
Series", "Bonds of the Medium Term Note Series", "Bonds of the Medium Term Note
Series I", "Bonds of the 2023 Series",
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"Bonds of the Medium Term Note Series II", "Bonds of the Medium Term Note
Series III", "Bonds of the Medium Term Note Series IV", and "Bonds of the
_____________________", respectively; and
WHEREAS, the Original Indenture provides that the Company and the
Trustee, subject to the conditions and restrictions in the Original Indenture
contained, may enter into an indenture or indentures supplemental thereto,
which shall thereafter form a part of said Original Indenture, among other
things, to mortgage, pledge, convey, transfer or assign to the Trustee and to
subject to the lien of the Original Indenture with the same force and effect as
though included in the granting clauses thereof, additional properties acquired
by the Company after the execution and delivery of the Original Indenture, and
to provide for the creation of any series of Bonds (other than the Bonds of the
1975 Series), designating the series to be created and specifying the form and
provisions of the Bonds of such series as therein provided or permitted, and to
provide a sinking, amortization, replacement or other analogous fund for the
benefit of all or any of the Bonds of any one or more series, of such character
and of such amount, and upon such terms and conditions as shall be contained in
such supplemental indenture; and
WHEREAS, the Company has heretofore executed and delivered to the
Trustee the Fortieth Supplemental Indenture and the Forty-first Supplemental
Indenture amending in certain respects the Original Indenture, as theretofore
supplemented (such Original Indenture as so amended hereinafter referred to as
the "Original Indenture"); and
WHEREAS, the Company desires to provide for the creation of a new
series of bonds to be known as "First Mortgage Bonds, ______% Series due
_________," (sometimes herein referred to as the "Bonds of the ______ Series"),
and to specify the form and provisions of the Bonds of such series, and to
mortgage, pledge, convey, transfer or assign to the Trustee and to subject to
the lien of the Original Indenture certain additional properties acquired by
the Company since the execution and delivery of the Original Indenture; and
WHEREAS, the Company intends at this time to issue not to exceed
$_________________ aggregate principal amount of Bonds of the _______ Series
under and in accordance with the terms of the Original Indenture and the
Supplemental Indentures above referred to; and
WHEREAS, the Bonds of the _________ Series and the Trustee's
authentication certificate to be executed on the Bonds of the _________ Series,
are to be substantially in the following forms, respectively:
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(Form of Bond of the ___ Series)
[FACE]
No. R $..............
PORTLAND GENERAL ELECTRIC COMPANY
FIRST MORTGAGE BOND, [_____%](1) SERIES [DUE __________, ____](1)
Portland General Electric Company, an Oregon corporation (hereinafter
sometimes called the "Company"), for value received, hereby promises to pay to
..................................................................... or
registered assigns .......................................................
Dollars on ___________,______, and to pay interest thereon from [the __________
or _______________, as the case may be, next preceding the date hereof to which
interest has been paid (unless the date hereof is a ___________ or ___________
to which interest has been paid, in which case from the date hereof, or unless
the date hereof is prior to ___________, 199__, in which case from ___________,
19__, or unless the date hereof is between a ____________ or ____________, as
the case may be, and the following __________ or ____________, in which case
from such ___________ or ____________, provided, however, that if and to the
extent the Company shall default in payment of the interest due on such
_____________ or ___________, then from the next preceding date to which
interest has been paid or if such default shall be in respect of the interest
due on ____________, 199__, then from _____________, 199__),](1) at the rate
of [_________ , semi-annually on the first day of _________ and on the first day
of __________ in each year beginning on ____________, 199__,](1) until payment
of the principal hereof has been made or duly provided for. The interest so
payable on any [____________ or ____________](1) will, subject to certain
exceptions provided in the ___________ Supplemental Indenture referred to on
the reverse hereof, be paid to the person in whose name this bond is registered
at the close of business on the [________________ or ____________, as the
____________________
(1) Bracketed material may be changed if Bonds of the series to which
this Supplemental Indenture relates are to bear interest at a rate which may
change during the life of such Bonds, or are to be authenticated and delivered
periodically and with variations in the date of issuance, maturity date,
interest rate, interest payment date, place of payment of interest, and/or
redemption provisions as between individual Bonds of a series.
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case may be, next preceding such ___________________ or __________________.](2)
The principal of this bond will be paid in any coin or currency of the
United States of America which at the time of payment is legal tender for the
payment of public and private debts, at the office or agency of the Company in
the Borough of Manhattan, City and State of New York, and interest thereon will
be paid in like coin or currency at said office or agency.
Reference is hereby made to the further provisions of this bond set
forth on the reverse hereof, and such further provisions shall for all purposes
have the same effect as though fully set forth at this place.
This bond shall not become or be valid or obligatory for any purpose
until the authentication certificate hereon shall have been signed by the
Trustee.
IN WITNESS WHEREOF, PORTLAND GENERAL ELECTRIC COMPANY has caused this
instrument to be executed manually or in facsimile by its duly authorized
officers and has caused a facsimile of its corporate seal to be imprinted
hereon.
Dated ___________________
PORTLAND GENERAL ELECTRIC COMPANY,
By __________________________
[Title]
Attest: _________________________
Secretary.
(Form of Trustee's Authentication Certificate for
Bonds of the _______ Series)
This is one of the bonds, of the series designated herein, described in
the within-mentioned Indenture.
MARINE MIDLAND BANK, AS TRUSTEE,
By ________________________
Authorized Officer.
____________________
(2) Bracketed material may be changed if Bonds of the series to which
this Supplemental Indenture relates are to bear interest at a rate which may
change during the life of such Bonds, or are to be authenticated and delivered
periodically and with variations in the date of issuance, maturity date,
interest rate, interest payment date, place of payment of interest, and/or
redemption provisions as between individual Bonds of a series.
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[reverse]
This bond is one of the bonds, of a series designated as ______% Series
[due ________,_______ ,](3) of an authorized issue of bonds of the Company,
known as First Mortgage Bonds, not limited as to maximum aggregate principal
amount, all issued or issuable in one or more series under and equally secured
(except insofar as any sinking fund, replacement fund or other fund established
in accordance with the provisions of the Indenture hereinafter mentioned may
afford additional security for the bonds of any specific series) by an
Indenture of Mortgage and Deed of Trust dated July 1, 1945, duly executed and
delivered by the Company to The Marine Midland Trust Company of New York (now
Marine Midland Bank), as Trustee, as supplemented and modified by supplemental
indentures (such Indenture of Mortgage and Deed of Trust as so supplemented and
modified being hereinafter called the "Indenture"), to which Indenture and all
indentures supplemental thereto, reference is hereby made for a description of
the property mortgaged and pledged as security for said bonds, the nature and
extent of the security, and the rights, duties and immunities thereunder of the
Trustee, the rights of the holders of said bonds and of the Trustee and of the
Company in respect of such security, and the terms upon which said bonds may be
issued thereunder.
The bonds of the ___________% Series [due _________ ,________](3) are
subject to redemption prior to maturity as a whole at any time or in part from
time to time [(a) during each of the twelve months' periods set forth in the
tabulation below, at the option of the Company (by operation of the replacement
fund provided in the Indenture and otherwise, except in the cases mentioned in
the following clause (b)), upon payment of the applicable percentage of the
principal amount thereof set forth in said tabulation, under the heading
"Regular Redemption Price"; provided, however, that no such redemption shall be
made prior to _________, _________ directly or indirectly out of the proceeds
of or in anticipation of any borrowings or the issuance of other debt
obligations by or for the account of the Company having an effective interest
cost (calculated after adjustment, in accordance with generally accepted
financial practice, for any premium received or discount granted in connection
with such borrowings or issuance) of less than _________ per annum; and (b)](4)
[by operation of the sinking fund provided for in the Indenture and](5) by
application of proceeds of the sale or disposition substantially as an entirety
of the electric properties of the Company at Portland, Oregon
____________________
(3) Bracketed material may be changed if Bonds of the series to which
this Supplemental Indenture relates are to bear interest at a rate which may
change during the life of such Bonds, or are to be authenticated and delivered
periodically and with variations in the date of issuance, maturity date,
interest rate, interest payment date, place of payment of interest, and/or
redemption provisions as between individual Bonds of a series.
(4) May be omitted or changed if the Bonds of the series to which this
Supplemental Indenture relates are to be nonredeemable or the redemption
provisions with respect thereto differ from those described.
(5) Bracketed material to be omitted if there is no sinking fund to be
provided for the Bonds of the series to which this Supplemental Indenture
relates.
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[and (in the instances provided in the Indenture) by the application of
proceeds of property subject to the lien thereof,](6) upon payment of the
principal amount thereof:
Twelve Twelve
Months' Regular Months' Regular
Period Redemption Period Redemption
Beginning Price Beginning Price
--------- ---------- --------- ----------
together in each case with interest accrued on the bonds to be redeemed to the
redemption date, upon prior notice given by mailing such notice to the
respective registered holders of such bonds not less than thirty nor more than
ninety days prior to the redemption date, all as more fully provided in the
Indenture.
If this bond or any portion thereof (One Thousand Dollars or an
integral multiple thereof) is duly called for redemption and payment duly
provided for as specified in the Indenture, this bond or such portion thereof
shall cease to be entitled to the lien of the Indenture from and after the date
payment is so provided for and shall cease to bear interest from and after the
redemption date.
(6) In the event of the selection for redemption of a portion only of the
principal of this bond, payment of the redemption price will be made only upon
surrender of this bond in exchange for a bond or bonds (but only of authorized
denominations of the same series) for the unredeemed balance of the principal
amount of this bond.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than seventy-five percent
in principal amount of the bonds (exclusive of bonds disqualified by reason of
the Company's interest therein) at the time outstanding, including, if more
than one series of bonds shall be at the time outstanding, not less than sixty
percent in principal amount of each series affected, to effect, by an indenture
supplemental to the Indenture, modifications or alterations of the Indenture
and of the rights and obligations of the Company and of the holders of the
bonds and coupons; provided, however, that no such modification or alteration
shall be made without the written approval or consent of the holder hereof
which will (a) extend the maturity of this bond or reduce the rate or extend
the time of payment of interest hereon or reduce the amount of the principal
hereof or reduce any premium payable on the redemption hereof, (b) permit the
creation of any lien, not otherwise permitted, prior
____________________
(6) May be omitted or changed if the Bonds of the series to which this
Supplemental Indenture relates are to be nonredeemable, or the redemption
provisions with respect thereto differ from those described.
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to or on a parity with the lien of the Indenture, or (c) reduce the percentage
of the principal amount of the bonds upon the approval or consent of the
holders of which modifications or alterations may be made as aforesaid.
This bond is transferable by the registered owner hereof in person or
by his attorney duly authorized in writing, at the corporate trust office of
the Trustee in the Borough of Manhattan, City and State of New York, upon
surrender of this bond for cancellation and upon payment of any taxes or other
governmental charges payable upon such transfer, and thereupon a new registered
bond or bonds of the same series and of a like aggregate principal amount will
be issued to the transferee or transferees in exchange therefor.
The Company, the Trustee and any paying agent may deem and treat the
person in whose name this bond is registered as the absolute owner hereof for
the purpose of receiving payments of or an account of the principal hereof and
interest due hereon, and for all other purposes, whether or not this bond shall
be overdue, and neither the Company, the Trustee nor any paying agent shall be
affected by any notice to the contrary.
Bonds of this series are issuable only in fully registered form without
coupons in denominations of [$1,000 and any integral multiple thereof].(7) The
registered owner of this bond at his option may surrender the same for
cancellation at said office of the Trustee and receive in exchange therefor the
same aggregate principal amount of registered bonds of the same series but of
other authorized denominations upon payment of any taxes or other governmental
charges payable upon such exchange and subject to the terms and conditions set
forth in the Indenture.
If an event of default as defined in the Indenture shall occur, the
principal of this bond may become or be declared due and payable before
maturity in the manner and with the effect provided in the Indenture. The
holders, however, of certain specified percentages of the bonds at the time
outstanding, including in certain cases specified percentages of bonds of
particular series, may in the cases, to the extent and as provided in the
Indenture, waive certain defaults thereunder and the consequences of such
defaults.
No recourse shall be had for the payment of the principal of or the
interest on this bond, or for any claim based hereon, or otherwise in respect
hereof or of the Indenture, against any incorporator, shareholder, director or
officer, past, present or future, as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or such
predecessor or successor corporation, under any
____________________
(7) Bracketed material may be changed if Bonds of the series to which
this Supplemental Indenture relates are to bear interest at a rate which may
change during the life of such Bonds, or are to be authenticated and delivered
periodically and with variations in the date of issuance, maturity date,
interest rate, interest payment date, place of payment of interest, and/or
redemption provisions as between individual Bonds of a series.
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constitution or statute or rule of law, or by the enforcement of any assessment
or penalty, or otherwise, all such liability of incorporators, shareholders,
directors and officers, as such, being waived and released by the holder and
owner hereof by the acceptance of this bond and as provided in the Indenture.
The Indenture provides that this bond shall be deemed to be a contract
made under the laws of the State of New York, and for all purposes shall be
construed in accordance with and governed by the laws of said State.
(End of Form of Bond of the ________ Series)
and
WHEREAS, all acts and proceedings required by law and by the charter or
articles of incorporation and bylaws of the Company necessary to make the Bonds
of the ________ Series to be issued hereunder, when executed by the Company,
authenticated and delivered by the Trustee and duly issued, the valid, binding
and legal obligations of the Company, and to constitute this Supplemental
Indenture a valid and binding instrument, have been done and taken; and the
execution and delivery of this Supplemental Indenture have been in all respects
duly authorized;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH, that, in order
to secure the payment of the principal of, premium, if any, and interest on all
Bonds at any time issued and outstanding under the Original Indenture as
supplemented and modified by the ____________________ supplemental indentures
hereinbefore described and as supplemented and modified by this Supplemental
Indenture, according to their tenor, purport and effect, and to secure the
performance and observance of all the covenants and conditions therein and
herein contained, and for the purpose of confirming and perfecting the lien of
the Original Indenture on the properties of the Company hereinafter described,
or referred to, and for and in consideration of the premises and of the mutual
covenants herein contained, and acceptance of the Bonds of the _________ Series
by the holders thereof, and for other valuable consideration, the receipt
whereof is hereby acknowledged, the Company has executed and delivered this
Supplemental Indenture and by these presents does grant, bargain, sell,
warrant, alien, convey, assign, transfer, mortgage, pledge, hypothecate, set
over and confirm unto the Trustee the following property, rights, privileges
and franchises (in addition to all other property, rights, privileges and
franchises heretofore subjected to the lien of the Original Indenture as
supplemented by the ___________ supplemental indentures hereinbefore described
and not heretofore released from the lien thereof), to wit:
CLAUSE I
Without in any way limiting anything hereinafter described, all and
singular the lands, real estate, chattels real, interests in land, leaseholds,
ways, rights-of-way,
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easements, servitudes, permits and licenses, lands under water, riparian
rights, franchises, privileges, electric generating plants, electric
transmission and distribution systems, and all apparatus and equipment
appertaining thereto, offices, buildings, warehouses, garages, and other
structures, tracks, machine shops, materials and supplies and all property of
any nature appertaining to any of the plants, systems, business or operations
of the Company, whether or not affixed to the realty, used in the operation of
any of the premises or plants or systems or otherwise, which have been acquired
by the Company since the execution and delivery of the Original Indenture and
not heretofore included in any indenture supplemental thereto, and now owned or
which may hereafter be acquired by the Company (other than excepted property as
defined in the Original Indenture).
CLAUSE II
All corporate, Federal, State, municipal and other permits, consents,
licenses, bridge licenses, bridge rights, river permits, franchises, grants,
privileges and immunities of every kind and description, owned, held, possessed
or enjoyed by the Company (other than excepted property as defined in the
Original Indenture) and all renewals, extensions, enlargements and
modifications of any of them, which have been acquired by the Company since the
execution and the delivery of the Original Indenture and not heretofore
included in any indenture supplemental thereto, and now owned or which may
hereafter be acquired by the Company.
CLAUSE III
Together with all and singular the plants, buildings, improvements,
additions, tenements, hereditaments, easements, rights, privileges, licenses
and franchises and all other appurtenances whatsoever belonging or in any wise
pertaining to any of the property hereby mortgaged or pledged, or intended so
to be, or any part thereof, and the reversion and reversions, remainder and
remainders, and the rents, revenues, issues, earnings, income, products and
profits thereof, and every part and parcel thereof, and all the estate, right,
title, interest, property, claim and demand of every nature whatsoever of the
Company at law, in equity or otherwise howsoever, in, of and to such property
and every part and parcel thereof.
TO HAVE AND TO HOLD all of said property, real, personal and mixed, and
all and singular the lands, properties, estates, rights, franchises, privileges
and appurtenances hereby mortgaged, conveyed, pledged or assigned, or intended
so to be, together with all the appurtenances thereto appertaining and the
rents, issues and profits thereof, unto the Trustee and its successors and
assigns, forever.
SUBJECT, HOWEVER, to the exceptions, reservations, restrictions,
conditions, limitations, covenants and matters contained in all deeds and other
instruments whereunder the Company has acquired any of the property now owned
by it, and to
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permitted encumbrances as defined in Subsection B of Section 1.11 of the
Original Indenture;
BUT IN TRUST NEVERTHELESS, for the equal and proportionate use,
benefit, security and protection of those who from time to time shall hold the
Bonds and coupons authenticated and delivered under the Original Indenture and
the ________ supplemental indentures hereinbefore described or this
Supplemental Indenture, and duly issued by the Company, without any
discrimination, preference or priority of any one bond or coupon over any other
by reason of priority in the time of issue, sale or negotiation thereof or
otherwise, except as provided in Section 11.28 of the Original Indenture, so
that, subject to said Section 11.28, each and all of said Bonds and coupons
shall have the same right, lien and privilege under the Original Indenture and
the _________ supplemental indentures hereinbefore described, or this
Supplemental Indenture, and shall be equally secured thereby and hereby and
shall have the same proportionate interest and share in the trust estate, with
the same effect as if all of the Bonds and coupons had been issued, sold and
negotiated simultaneously on the date of delivery of the Original Indenture;
AND UPON THE TRUSTS, USES AND PURPOSES and subject to the covenants,
agreements and conditions in the Original Indenture and the ________
supplemental indentures hereinbefore described and herein set forth and
declared.
ARTICLE ONE.
BONDS OF THE ____________ SERIES AND CERTAIN
PROVISIONS RELATING THERETO.
(8) SECTION 1.01 A. Definitions Pertaining to Series. The terms defined in
this Section 1.01. A (except as herein otherwise expressly provided or unless
the context otherwise requires) for all purposes of this Supplemental Indenture
shall have the respective meanings specified in this Section 1.01. A. All
other terms used in this Supplemental Indenture which are defined in the
Indenture or in the Trust Indenture Act of 1939 or which are by reference
therein defined in the Securities Act of 1933, as amended (except as herein
otherwise expressly provided or unless the context otherwise requires), shall
have the meanings assigned to such terms in said Indenture in said Trust
Indenture Act and in said Securities Act as in force at the date of the
execution of this _______ Supplemental Indenture.
Alternate Treasury Rates:
The term "Alternate Treasury Rate" shall mean as of any _______ the
average yields to maturity of the daily closing bids (or less frequently if
daily quotations shall not
____________________
(8) May be inserted if Bonds of the series to which this Supplemental
Indenture relate are to bear interest at a rate which may change during the
life of the Bonds.
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be available), quoted by at least three recognized U.S. Government securities
dealers selected by the Company, for all marketable U.S. Treasury securities
with a maturity of not less than three months shorter, or more than three
months longer, than the applicable Comparable Maturity from such ________
(other than securities which can, at the option of the holder, be surrendered
at face value in payment of any Federal estate tax) for the most recent five
consecutive business days during which there had been at least three days on
which daily closing bids are quoted within the period beginning on the
preceding _______ such ______________ and ending prior to such _____________.
Applicable Treasury Rate:
The term "Applicable Treasury Rate" shall mean as of any ________ (i)
if available, the most recent weekly Comparable Maturity Treasury Rate
published during the period beginning on the ________ January ______, preceding
such ____________ and ending on such ___________, or (ii) if such Weekly
Comparable Maturity Treasury Rate is not available, the Alternate Treasury Rate
as of such or (iii) if the Alternate Treasury Rate as of such __________is not
available due to the Company's failure to select the requisite securities
dealers, the most recently published Weekly Comparable Maturity Treasury Rate.
Business Day:
The term "business day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a legal holiday for banking institutions in
The City of New York.
Comparable Maturity:
The term "Comparable Maturity" shall mean a period of _____ years
corresponding to the term of the relevant Interest Period.
Interest Payment Date:
The term "Interest Payment Date" shall mean each ________ and
____________, commencing ____________, while any Bonds of the ___________
Series is outstanding.
Interest Period:
The term "Interest Period", other than the initial Interest Period,
shall mean a period of _____________ years ending on _____________ of any year
through and including ______________. The initial Interest Period shall be the
period commencing on __________ and ending on __________.
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Redeemable Period:
The term "Redeemable Period" means the period, if any, during any
Interest Period (after the initial Interest Period) during which the Bonds of
the _______ Series are redeemable at the option of the Company.
Redemption Price:
The term "Redemption Price" means the percentage or percentages (not
less than 100%) of principal amount of the Bonds of the ___________ Series at
which the Bonds of the ____________ are redeemable.
U.S. Treasury Differential Percentages:
The term "U.S. Treasury Differential Percentage" shall have the meaning
set forth in Section ________.
Wall Street Journal Notice:
The term "Wall Street Journal Notice" shall refer to the newspaper
notice indicating a higher interest rate and otherwise in the manner described
in Section _______ .
Weekly Comparable Maturity Treasury Rate:
The term "Weekly Comparable Maturity Treasury Rate" shall mean the
weekly average yield to maturity value adjusted to a constant maturity of the
Comparable Maturity as read from the yield curves of the most actively traded
marketable U.S. Treasury fixed interest rate securities as constructed daily by
the U.S. Treasury Department and as published by the Federal Reserve Board or
any Federal Reserve Bank or by any United States Government department or
agency. Since February 1977, Weekly Comparable Maturity Treasury Rates have
been published by the Federal Reserve Board weekly in "Statistical Release H.
15(519). Selected Interest Rates" as "U.S. Government securities -- Treasury
constant maturities."
SECTION 1.01. Certain Terms of Bonds of the __________ Series. There
shall be a series of Bonds, known as and entitled "First Mortgage Bonds,
_______ [% Series due ____________ , __________"](9) (sometimes herein referred
to as the "Bonds of the ___________________
____________________
(9) Bracketed material may be changed if Bonds of the series to which
this Supplemental Indenture relates are to bear interest at a rate which may
change during the life of such Bonds, or are to be authenticated and delivered
periodically and with variations in the date of issuance, maturity date,
interest rate, interest payment date, place of payment of interest, and/or
redemption provisions as between individual Bonds of a series.
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_____ Series") and the form thereof shall be substantially as hereinabove set
forth. The aggregate principal amount of the Bonds of the ______ Series shall
be limited to _____________ excluding, however, any Bonds of the ________
Series which may be executed, authenticated and delivered in exchange for or in
lieu of or in substitution for other Bonds of the _________ Series pursuant to
the provisions of the Original Indenture or of this Supplemental Indenture.
The definitive Bonds of the _______ Series shall be issuable only in
fully registered form without coupons in the denomination of [$1,000 and in any
integral multiple thereof.](10) [Except as provided in the next succeeding
sentence and notwithstanding the provisions of Section 2.05 of the Original
Indenture,](10) each Bond of the _______ Series shall be dated as of the date of
its authentication, [shall mature __________________, ____________,](10) and
shall bear interest from [the __________ or ____________, as the case may be,
next preceding the date thereof to which interest has been paid, unless the
date thereof is a _________ or ____________ to which interest has been paid, in
which case it shall bear interest from such date, or unless the date thereof is
prior to ____________, 199__, in which case it shall bear interest from
_____________, 199__. Each Bond of the _______________ Series authenticated
between the record date (as hereinafter in this Section ____ defined) for any
interest payment date and such interest payment date shall be dated as of the
date of its authentication, but shall bear interest from such interest payment
date; provided, however, that if and to the extent the Company shall default in
the payment of the interest due on such interest payment date, then any Bond of
the ______ Series so authenticated shall bear interest from the __________ or
____________, as the case may be, next preceding the date of such Bond to which
interest has been paid, or if such default shall be in respect of the interest
due on _____________, 199__, then from __________, 199__.](10) [All](10) Bonds
of the _____________ Series shall bear interest at the rate of [_____%](10) per
annum until the payment of the principal thereof has been made or duly provided
for, such interest to be payable [semi-annually on ________ and _____________
in each year.](10) The person in whose name any Bond of the _________ Series is
registered at the close of business on any record date (as hereinafter in this
Section ____ defined) with respect to any interest payment date shall be
entitled to receive the interest payable thereon on such interest payment date
notwithstanding the cancellation of such Bond upon any transfer or exchange
thereof subsequent to such record date and prior to such interest payment date,
unless the Company shall default in the payment of the interest due on such
interest payment date, in which case such defaulted interest shall be paid to
the person in whose name such Bond is registered on a subsequent record date
fixed by the Company, which subsequent record date shall be
____________________
(10) Bracketed material may be changed if Bonds of the series to which
this Supplemental Indenture relates are to bear interest at a rate which may
change during the life of such Bonds, or are to be authenticated and delivered
periodically and with variations in the date of issuance, maturity date,
interest rate, interest payment date, place of payment of interest, and/or
redemption provisions as between individual Bonds of a series.
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fifteen (15) days prior to the payment of such defaulted interest. The term
"record date" as used in this Section ____ with respect to any
[semi-annual](10) interest payment date shall mean the [_________________ or
___________, as the case may be, next preceding such interest payment date,
or, if such _________ or ____________ is not a business day, the business day
next preceding such _________ or _______________.](11) The principal of the
Bonds of the ____________ Series shall be payable in any coin or currency of
the United States of America which at the time of payment is legal tender for
the payment of public and private debts at the office or agency of the Company
in the Borough of Manhattan, City and State of New York, and interest on such
Bonds shall be payable in like coin or currency at said office or agency.
The definitive Bonds of the _________ Series may be issued in the form
of Bonds, engraved, printed or lithographed on steel engraved borders.
Upon compliance with the provisions of Section 2.06 of the Original
Indenture and upon payment of any taxes or other governmental charges payable
upon such exchange, Bonds of the ________ Series may be exchanged for a new
Bond or Bonds of different authorized denominations of like aggregate principal
amount.
The Trustee hereunder shall, by virtue of its office as such Trustee,
be the registrar and transfer agent of the Company for the purpose of
registering and transferring Bonds of the________ Series.
Notwithstanding the provisions of Section 2.11 of the Original
Indenture, no service charge shall be made for any exchange or transfer of
Bonds of the _________ Series, but the Company at its option may require
payment of a sum sufficient to cover any tax or other governmental charge
incident thereto.
SECTION 1.02. Redemption Provisions for Bonds of the _______ Series.
The Bonds of the __________ Series shall be subject to redemption prior to
maturity as a whole at any time or in part from time to time
(12) (a) during each of the twelve month periods set forth in
the tabulation below, at the option of the Company (through the
operation of the replacement fund provided for in Section 4.04 of the
Original Indenture and otherwise, except in the cases mentioned in the
following clause (b)), upon payment of the
____________________
(11) Bracketed material may be changed if Bonds of the series to which
this Supplemental Indenture relates are to bear interest at a rate which may
change during the life of such Bonds, or are to be authenticated and delivered
periodically and with variations in the date of issuance, maturity date,
interest rate, interest payment date, place of payment of interest, and/or
redemption provisions as between individual Bonds of a series.
(12) May be omitted or changed if the Bonds of the series to which this
Supplemental Indenture relates are to be nonredeemable or the redemption
provisions with respect thereto differ from those described.
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applicable percentage of the principal amount thereof set forth in said
tabulation under the heading "Regular Redemption Price"; provided,
however, that no such redemption shall be made prior to
____________________, _____________ directly or indirectly out of the
proceeds of or in anticipation of any borrowings or the issuance of
other debt obligations by or for the account of the Company having an
effective interest cost (calculated after adjustment, in accordance
with generally accepted financial practice, for any premium received or
discount granted in connection with such borrowings or issuance) of
less than ___________ per annum; and
(b) (13)(i) through the operation of the
sinking fund for the Bonds of the
_____ Series provided for in
Section _____ of this Supplemental
Indenture,
(14)(ii) through the application of cash
deposited with the Trustee pursuant
to Section 6.04 of the Original
Indenture, upon the taking,
purchase or sale of any property
subject to the lien hereof or
thereof in the manner set forth in
said Section, or
(iii) through the application of cash
representing the proceeds of the
sale or disposition substantially
as an entirety of the electric
properties of the Company at
Portland, Oregon, which is required
by the provisions of Section 7.01
of the Original Indenture to be
applied to the retirement of Bonds,
upon payment of the principal amount thereof (the "Special Redemption
Price"):
Twelve Twelve
Months' Regular Months' Regular
Period Redemption Period Redemption
Beginning Price Beginning Price
--------- --------------- --------- ---------------
____________________
(13) May be omitted or changed if there is no sinking fund to be
provided for the Bonds of the series to which this Supplemental Indenture
relates or if the sinking fund provisions with respect thereto differ
from those described.
(14) May be omitted or changed if the Bonds of the Series to which this
Supplemental Indenture relates are to be nonredeemable or the redemption
provision with respect thereto differ from those described.
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together in each case with interest accrued on the Bonds to be redeemed to the
redemption date, upon prior notice by mailing such notice to the respective
registered owners of such Bonds not less than thirty nor more than ninety day
prior to the redemption date; and otherwise as provided in Article Nine of the
Original Indenture.
(15) SECTION 1.03. Sinking Fund for Bonds of the __________ Series; Bonds
Credited upon or Redeemed Through Certain Sinking Fund Payments Limited as to
further use as Basis of Other Action or Credit. So long as any Bonds of the
_______ Series are outstanding:
The Company covenants that, for the purpose of providing a sinking fund
for the Bonds of the ______ Series, it will, subject to the provisions
hereinafter in this Section set forth, pay to the Trustee on or before
____________ in each year, commencing ______________, and continuing to and
including _________, _____________, a sum sufficient (exclusive of accrued
interest) to redeem, on the next ensuing __________, at the Special Redemption
Price at which the same are then redeemable, a principal amount of Bonds of
the ___________ Series equal to the lowest integral multiple of $1,000 which
equals or exceeds _________% of the greatest aggregate principal amount of
Bonds of the ________ Series heretofore at any one time outstanding, after
deducting from said greatest aggregate principal amount the sum of the
following amounts, in the event that such sum would equal $500,000 or more,
namely, (1) the aggregate principal amount of Bonds of the _______ Series
theretofore redeemed by the application of the proceeds of property released
from the lien of the Original Indenture or taken or purchased pursuant to the
provisions of Article Six of the Original Indenture, and (2) the aggregate
principal amount of Bonds of the _______ Series theretofore redeemed and
retired and made the basis for the withdrawal of such proceeds pursuant to
Section 7.03 of the Original Indenture or certified pursuant to Section 6.06 of
the Original Indenture in lieu of the deposit of cash upon the release or
taking of property.
The dates upon which payments are required for the sinking fund for
Bonds of the ______ Series above provided are herein referred to as "sinking
fund payment dates".
____________________
(15) May be omitted or changed if there is no sinking fund to be
provided for the Bonds of the Series to which this Supplemental Indenture
relates or if the sinking fund provisions with respect thereto differ from
those described.
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The Company may
(16) (1) in whole at any time or in part from time to time, but not
later than 45 days prior to any sinking fund payment date, anticipate
all or part of the sinking fund payment due on such date by delivering
Bonds of the ____ Series to the Trustee as a credit to such sinking
fund payment and/or by notifying the Trustee in writing that it elects
to apply as a credit against such sinking fund payment any Bonds of the
_____ Series which shall have been redeemed at the option of the
Company at the Regular Redemption Price at which such Bonds are
redeemable as provided in Section ____ of this Supplemental Indenture;
(17) (2) within twelve months preceding any sinking fund payment
date but not later than 45 days prior to such sinking fund payment
date, anticipate in whole at any time or in part from time to time the
sinking fund payment due on such date by causing to be redeemed, at the
redemption price at which Bonds of the _______ Series are then
redeemable for the sinking fund, as provided in Section ____ hereof,
Bonds of the _______ Series of an aggregate principal amount not
exceeding the aggregate principal amount required to be retired to
satisfy such sinking fund payment, and delivering to the Trustee notice
in writing that such Bonds are being redeemed for account of the
sinking fund; and
(3) in whole at any time or in part from time to time, but not
later than 45 days prior to any sinking fund payment date, anticipate
all or part of the sinking fund payment due on such date by delivering
to the Trustee a certificate of available additions dated and prepared
as provided in Section 3.03 of the Original Indenture showing as a
credit against such sinking fund payment an amount of available
additions equal to 166-2/3% of the sinking fund payment or part thereof
so anticipated; provided, however, that so long as any Bonds of the
_______ Series are outstanding, any available additions thus shown as a
credit against any such sinking fund payment or part thereof shall (but
without limiting the use of the amount thereof in calculating any
minimum provision for depreciation pursuant to the provisions of
Subsection G of Section 1.10 of the Original Indenture as the same may
be amended in accordance with the provisions of Section ____ of this
Supplemental Indenture) be deemed to have been "included in an
officers' certificate filed with the Trustee as the basis for a sinking
fund credit" and to have been "made the basis for action or credit
hereunder" as such
____________________
(16) May be omitted or changed if the Bonds of the series to which this
Supplemental Indenture relates are to be nonredeemable, or the redemption
provisions with respect thereto differ from those described.
(17) May be omitted or changed if the Bonds of the series to which this
Supplemental Indenture relates are to be nonredeemable, or the redemption
provisions with respect thereto differ from those described.
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term is defined in Subsection H of Section 1.10 of the Original
Indenture.
No available Bond retirements which shall theretofore have been made
the basis for action or credit under the Original Indenture or hereunder, and
no retirements of Bonds of the ________ Series which shall theretofore have
been credited upon the sinking fund for the Bonds of the ________ Series, shall
be made the basis of a credit upon such sinking fund. Bonds which the Company
has elected to apply as a credit upon any sinking fund payment in accordance
with the provisions of clause (1) of the paragraph immediately preceding and/or
redeemed in anticipation of any sinking fund payment in accordance with the
provisions of clause (2) of the paragraph immediately preceding shall operate
to reduce by their principal amount the principal amount of Bonds to be
redeemed by such sinking fund payment, and any available additions which have
been applied in anticipation of any sinking fund payment in accordance with the
provisions of clause (3) of the paragraph immediately preceding shall operate
to reduce by 60% of their amount the principal amount of Bonds to be redeemed
by such sinking fund payment.
A. All Bonds made the basis of a credit upon any sinking fund payment
for Bonds of the _______ Series and/or (except with respect to Bonds on which a
notation of partial payment shall be made as permitted by any provision of the
Original Indenture, of any supplemental indenture or of any agreement entered
into as permitted by the Original Indenture or by any supplemental indenture)
redeemed (whether on any sinking fund payment date or in anticipation of any
such sinking fund payment) by operation of the sinking fund for such _______
Series if not theretofore canceled shall be canceled and, so long as any Bonds
of the _______ Series are outstanding, shall not (but without limiting the use
of the principal amount thereof in calculating any minimum provision for
depreciation pursuant to the provisions of Subsection G of Section 1.10 of the
Original Indenture as the same may be amended in accordance with the provisions
of Section 1.08 of this Supplemental Indenture) be made the basis of the
authentication and delivery of Bonds or of any other further action or credit
under the Original Indenture or any supplemental indenture, including this
Supplemental Indenture.
B. (i) To the extent that
(a) in any given year the principal amount of Bonds made the
basis of a credit upon any sinking fund payment, and/or
redeemed (whether on a sinking fund payment date or in
anticipation of a sinking fund payment) by operation of the
sinking fund, for Bonds of the 1975 Series, or for Bonds of
the 1977 Series, or for Bonds of the 1977 Second Series, or
for Bonds of the 1984 Series, or for Bonds of the 1986
Series, or for Bonds of the 4-7/8% Series due 1987, or for
Bonds of the 1990 Series, or for Bonds of the 1991 Series,
or for Bonds of the 4-5/8% Series due 1993, or for Bonds of
the 4-3/4% Series due 1993, or for Bonds of the 1994
Series, or for
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Bonds of the 1995 Series, or for Bonds of the 1996 Series,
or for Bonds of the 1996 Second Series, or for Bonds of the
1999 Series, or for Bonds of the 2000 Second Series,
does not exceed
(b) an amount equal to 1% of the greatest aggregate principal
amount of Bonds of such Series theretofore at any one time
outstanding, after deducting from said aggregate principal
amount the sum of the following amounts, in the event that
such sum would equal $500,000 or more, namely, (1) the
aggregate principal amount of Bonds of such Series
theretofore redeemed by the application of the proceeds of
property released from the lien of the Original Indenture
or taken or purchased pursuant to the provisions of Article
Six of the Original Indenture, and (2) the aggregate
principal amount of Bonds of such Series theretofore
redeemed and retired and made the basis for the withdrawal
of such proceeds pursuant to Section 7.03 of the Original
Indenture or certified pursuant to Section 6.06 of the
Original Indenture in lieu of the deposit of cash upon the
release or taking of property; and
to the extent that
(c) in any given year the principal amount of Bonds made the
basis of a credit upon any sinking fund payment and/or
redeemed (whether on a sinking fund payment date or in
anticipation of a sinking fund payment) by operation of the
sinking fund, for Bonds of the 1997 Series, or for Bonds of
the 2000 Series, or for Bonds of the 2001 Series, or for
Bonds of the 2002 Series, or for Bonds of the 2003 Series,
or for Bonds of the 2003 Second Series, or for Bonds of the
2005 Series, or for Bonds of the 2006 Series, or for Bonds
of the 2007 Series, or for Bonds of the 2010 Series, or for
Bonds of the 2012 Series, or for Bonds of the ________
Series,
does not exceed that
(d) an amount equal to (1) 1% of the greatest aggregate
principal amount of Bonds of such Series theretofore at any
one time outstanding, after making the deductions from said
aggregate principal amount referred to in clause (b) of
this subparagraph (i), minus (2) 60% of the amount of
available additions made the basis of a credit against such
sinking fund payment,
the principal amount of Bonds so made the basis of a credit upon a sinking fund
payment and/or so redeemed by operation of the sinking fund for Bonds of such
Series shall not (but without limiting the use of the principal amount thereof
in calculating any minimum
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provision for depreciation pursuant to the provisions of Subsection G of
Section 1.10 of the Original Indenture as the same may be amended in accordance
with the provisions of Section 1.08 of this Supplemental Indenture) be made the
basis of the authentication and delivery of Bonds or of any other further
action or credit under the Original Indenture or any supplemental indenture,
including this Supplemental Indenture; and
(ii) to the extent that
(e) in any given year the amount of available additions made
the basis of a credit against any sinking fund payment for
Bonds of the 1997 Series, or for Bonds of the 2000 Series,
or for Bonds of the 2001 Series, or for Bonds of the 2002
Series, or for Bonds of the 2003 Series, or for Bonds of
the 2003 Second Series, or for Bonds of the 2005 Series, or
for Bonds of the 2006 Series, or for Bonds of the 2007
Series, or for Bonds of the 2010 Series, or for Bonds of
the 2012 Series, or for Bonds of the _______ Series,
does not exceed
(f) an amount equal to one and sixty-six and two-thirds one
hundredths percent (1.66-2/3%) of the greatest aggregate
principal amount of Bonds of such Series theretofore at any
one time outstanding, after making the deductions from said
aggregate principal amount referred to in clause (b) of
subparagraph (i) of this paragraph B,
the amount of available additions so made the basis of a credit against a
sinking fund payment shall (but without limiting the use of the amount thereof
in calculating any minimum provision for depreciation pursuant to the
provisions of Subsection G of Section 1.10 of the Original Indenture as the
same may be amended in accordance with the provisions of Section 1.08 of this
Supplemental Indenture) be deemed to have been "included in an officers'
certificate filed with the Trustee as the basis for a sinking fund credit" and
to have been "made the basis for action or credit hereunder" as such term is
defined in Subsection H of Section 1.10 of the Original Indenture.
C. From and after the time when all Bonds of any of the Series (other
than Bonds of the 1996 Second Series, Bonds of the 1999 Series and Bonds of the
2000 Second Series) referred to in (a) of paragraph B immediately preceding
shall cease to be outstanding, and in the case of Bonds of the 1996 Second
Series, Bonds of the 1999 Series and Bonds of the 2000 Second Series, for each
of such Series from and after the time when the first Bond of such Series shall
have been redeemed by operation of the sinking fund for Bonds of such Series, a
principal amount of Bonds equal to the excess of
(i) the aggregate principal amount of Bonds made the basis of a credit
upon all
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sinking fund payments and/or redeemed by operation of the sinking
fund for Bonds of such Series as set forth in said (a) in all
years, over
(ii) the aggregate amounts set forth in (b) of paragraph B immediately
preceding with reference to Bonds of such Series for all years,
shall become "available Bond retirements" as such term is defined in Section
1.10.J. of the Original Indenture and may thereafter be included in Item 4 (or,
in the case of Bonds of the 1996 Second Series, Bonds of the 1999 Series and
Bonds of the 2000 Second Series, in Item 3) of any "certificate of available
Bond retirements" thereafter delivered to and/or filed with the Trustee
pursuant to Section 3.02 of the Original Indenture; and from and after the time
when all Bonds of any of the Series referred to in (c) of paragraph B
immediately preceding shall cease to be outstanding, a principal amount of
Bonds equal to the excess of
(iii) the aggregate principal amount of Bonds made the basis of a
credit upon all sinking fund payments and/or redeemed by
operation of the sinking fund for Bonds of such Series as set
forth in said (c) in all years, over
(iv) the aggregate amounts set forth in (d) of paragraph B immediately
preceding with reference to Bonds of such Series for all years,
shall become "available Bond retirements" as such term is defined in Section
1.10.J. of the Original Indenture and may thereafter be included in Item 4 of
any "certificate of available Bond retirements" thereafter delivered to and/or
filed with the Trustee pursuant to Section 3.02 of the Original Indenture, and
an amount of available additions equal to the excess of
(v) the aggregate amount of available additions made the basis of a
credit against all sinking fund payments for Bonds of such Series
as set forth in (e) of paragraph B immediately preceding in all
years, over
(vi) the aggregate amounts set forth in (f) of paragraph B immediately
preceding with reference to Bonds of such Series for all years,
shall become "available additions" as such term is defined in Section 1.10.I.
of the Original Indenture and may thereafter be included in Item 5 of any
"certificate of available additions" thereafter filed with the Trustee pursuant
to Section 3.01 of the Original Indenture; provided, however, that the
foregoing provisions of this paragraph C shall not become effective (except
with respect to Bonds of the 1996 Second Series, Bonds of the 1999 Series and
Bonds of the 2000 Second Series, as to each of which Series such provisions
shall become effective regardless of any consent of holders of any Bonds from
and after the time when the first Bond of such Series shall have been redeemed
by operation of the sinking fund for Bonds of such Series) unless and until the
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holders of not less than 75% in principal amount of Bonds then outstanding or
their attorneys-in-fact duly authorized, including the holders of not less than
60% in principal amount of the Bonds then outstanding of each series the rights
of the holders of which are affected, shall have consented to the amendments of
Subsections G, H, I and J of Section 1.10 and of Sections 3.01, 3.03 and 4.03
of the Original Indenture and of Sections 1.03 of the various Supplemental
Indentures referred to in Subsections II and III of Section ____ of this
Supplemental Indenture.
Forthwith after the 45th day prior to each sinking fund payment date on
which the Company will be required to make to the Trustee a payment in cash for
the sinking fund for the Bonds of the _____________ Series, the Trustee shall
proceed to select for redemption, in the manner provided in Article Nine of the
Original Indenture, a principal amount of Bonds of the ____________ Series
equal to the aggregate principal amount of Bonds redeemable with the money
required to be paid as hereinbefore provided on the then next ensuing sinking
fund payment date, and, for and on behalf of and in the name of the Company,
shall give notice as required by the provisions of Section ____ of this
Supplemental Indenture and Article Nine of the Original Indenture of the
redemption for the sinking fund on the next ensuing _____________ the Bonds so
selected. On or before the sinking fund payment date next preceding any _______
upon which any Bonds of the ____________ Series shall have been so called for
redemption for the sinking fund, the Company shall pay to the Trustee the sum
required to redeem the Bonds so called. All moneys so paid to the Trustee
shall be applied by it to the redemption of the Bonds so called for redemption
for the sinking fund.
The Company will pay the interest accrued on Bonds redeemed for the
sinking fund out of other moneys than those in the sinking fund, and will from
time to time on request of the Trustee pay to the Trustee, otherwise than out
of the sinking fund moneys, the cost of giving notice of redemption of Bonds
for the sinking fund and any other expense in operating the sinking fund, the
intention being that the sinking fund shall not be charged for such expenses.
SECTION 1.04. Notwithstanding the provisions of Section 4.07 of the
Original Indenture, the provisions of Sections 4.04, 4.05, and 4.06 of the
Original Indenture shall remain in full force and effect and shall be performed
by the Company so long as any Bonds of the ___________ Series remain
outstanding.
SECTION 1.05. The requirements which are stated in the next to the last
paragraph of Section 1.13 and in Clause (9) of Paragraph A of Section 3.01 of
the Original Indenture to be applicable so long as any of the Bonds of the 1975
Series are outstanding shall remain applicable so long as any of the Bonds of
the ___________ Series are outstanding.
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(18) SECTION 1.06. Notwithstanding the provisions of Section 2.06 or
Section 2.10 of the Original Indenture, the Company shall not be required (i)
to issue, register, discharge from registration, exchange or transfer any Bond
of the ____________ Series for a period of fifteen (15) days next preceding any
selection by the Trustee of Bonds of the ______________ Series to be redeemed
or (ii) to register, discharge from registration, exchange or transfer any Bond
of the ______________ Series so selected for redemption in its entirety or
(iii) to exchange or transfer any portion of a Bond of the _____________
Series which portion has been so selected for redemption.
SECTION 1.07. So long as any Bonds of the ________ Series remain
outstanding, all references to the minimum provision for depreciation in the
form of certificate of available additions set forth in Section 3.03 of the
Original Indenture shall be included in any certificate of available additions
filed with the Trustee, but whenever Bonds of the __________ Series shall no
longer be outstanding, all references to such minimum provisions for
depreciation may be omitted from any such certificate.
SECTION 1.08. I. Each holder of any Bond of the _________ Series, by
acceptance of such Bond shall thereby consent that, at any time after the
requisite consents, if any, of the holders of Bonds of other series shall have
been given as hereinafter provided, Subsections A and G of Section 1.10 of the
Original Indenture be amended so as to read as follows:
"A. The term `bondable public utility property' shall mean and
comprise any tangible property now owned or hereafter acquired by the
Company and subjected to the lien of this Indenture, which is located
in the States of Oregon, Washington, California, Arizona, New Mexico,
Idaho, Montana, Wyoming, Utah and Nevada and is used or is useful to it
in the business of furnishing or distributing electricity for heat,
light or power or other use, or supplying hot water or steam for heat
or power or steam for other purposes, including, without limiting the
generality of the foregoing, all properties necessary or appropriate
for purchasing, generating, manufacturing, producing, transmitting,
supplying, distributing and/or disposing of electricity, hot water or
steam; provided, however, that the term `bondable public utility
property' shall not be deemed to include any nonbondable property, as
defined in Subsection B of this Section 1.10, or any excepted
property."
"G. The term `minimum provision for depreciation' for the period
from March 31, 1945 through December 31, 1966, as applied to bondable
public utility property, whether or not subject to a prior lien, shall
mean $35,023,487.50.
____________________
(18) May be omitted or changed if the Bonds of the series to which this
Supplemental Indenture relates are to be nonredeemable, or the redemption
provisions with respect thereto differ from those described.
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"The term `minimum provision for depreciation' for any
calendar year subsequent to December 31, 1966, as applied to
bondable public utility property, shall mean the greater of (i) an
amount equal to 2% of depreciable bondable public utility property,
as shown by the books of the Company as of January 1 of such year,
with respect to which the Company was as of that date required, in
accordance with sound accounting practice, to make appropriations
to a reserve or reserves for depreciation or obsolescence, or (ii)
the amount actually appropriated by the Company on its books of
account to a reserve or reserves for depreciation or obsolescence
in respect of depreciable bondable public utility property for such
calendar year, in either case less an amount equal to the aggregate
of (a) the amount of any property additions which during such
calendar year were included in an officers' certificate filed with
the Trustee as the basis for a sinking fund credit pursuant to the
provisions of a sinking fund for Bonds of any series, and (b)
166-2/3% of the principal amount of Bonds of any series which shall
have been delivered to the Trustee as a credit, or which the
Company shall have elected to apply as a credit, against any
sinking fund payment due during such calendar year for Bonds of any
series, or which shall have been redeemed in anticipation of, or
out of moneys paid to the Trustee on account of, any sinking fund
payment due during such calendar year for Bonds of any series.
Bonds delivered to the Trustee as, or applied as, a credit against
any sinking fund payment and Bonds redeemed in anticipation of any
sinking fund payment, regardless of the time when they were
actually delivered, applied or redeemed, for purposes of the
preceding sentence shall be deemed to have been delivered, applied
or redeemed, as the case may be, on the sinking fund payment date
when such sinking fund payment was due. Bonds redeemed out of
moneys paid to the Trustee on account of any sinking fund payment
shall, regardless of the date when they were redeemed, for purposes
of the second preceding sentence, be deemed to have been redeemed
on the later of (i) the date on which such moneys were paid to the
Trustee or (ii) the sinking fund payment date when such sinking
fund payment was due.
"The minimum provision for depreciation for any calendar year
subsequent to December 31, 1966, as applied to bondable public
utility property not subject to a prior lien, shall be determined
as set forth in the paragraph immediately preceding, except that
all references therein to `depreciable bondable public utility
property' shall be deemed to be `depreciable bondable public
utility property not subject to a prior lien'.
"The minimum provision for depreciation as applied to bondable
public utility property and the minimum provision for depreciation
as applied to bondable public utility property not subject to a
prior lien for any period commencing subsequent to December 31,
1966 which is of twelve whole calendar months' duration but is
other than a calendar year or which is of less than twelve whole
calendar months' duration shall be determined by multiplying the
number of
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whole calendar months in such period by one-twelfth of the
corresponding minimum provision for depreciation for the most recent
calendar year completed prior to the end of such period, and fractions
of a calendar month shall be disregarded.
"The aggregate amount of the minimum provision for depreciation as
applied to bondable public utility property and the aggregate amount
of the minimum provision for depreciation as applied to bondable public
utility property not subject to a prior lien from March 31, 1945 to any
date shall be the sum of the corresponding minimum provision for
depreciation for each completed calendar year between December 31, 1966
and such date, plus the corresponding minimum provision for
depreciation for the period, if any, from the end of the most recent
such completed calendar year to such date, in each case determined as
set forth above, plus $35,023,487.50.
"All Bonds credited against any sinking fund payment due subsequent
to December 31, 1966 for Bonds of any series and (except as provided in
Section 9.04 with respect to Bonds on which a notation of partial
payment shall be made) all Bonds redeemed in anticipation of or out of
moneys paid to the Trustee as a part of any sinking fund payment due
subsequent to December 31, 1966 for Bonds of any series, shall be
canceled and no such Bonds, nor any property additions which,
subsequent to December 31, 1966, shall have been included in an
officers' certificate filed with the Trustee as the basis for a sinking
fund credit pursuant to the provisions of a sinking fund for Bonds of
any series, shall be made the basis of the authentication and delivery
of Bonds or of any other further action or credit hereunder."
II. Each holder of any Bond of the _______ Series, by acceptance of
such Bond shall thereby consent that, at any time after the requisite consents,
if any, of the holders of Bonds of other series shall have been given as
hereinafter provided:
(1) Subsection A of Section 1.10 of the Original Indenture, as the
same may be amended as hereinabove in this Section 1.08 provided, be
further amended by replacing the word "and" between the words "Utah"
and "Nevada" with a comma and by adding after the word "Nevada" the
words "and Alaska";
(2) Subsection G of Section 1.10 of the Original Indenture, as the
same may be amended as hereinabove in this Section 1.08 provided, be
further amended by amending the second paragraph thereof to read as
follows:
"The term `minimum provision for depreciation' for any calendar
year subsequent to December 31, 1966, as applied to bondable public
utility property, shall mean the greater of (i) an amount equal to 2%
of depreciable bondable public utility property, as shown by the books
of the Company as of January 1
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of such year, with respect to which the Company was as of that date
required, in accordance with sound accounting practice, to make
appropriations to a reserve or reserves for depreciation or
obsolescence, or (ii) the amount actually appropriated by the Company
on its books of account to a reserve or reserves for depreciation or
obsolescence in respect of depreciable bondable public utility property
for such calendar year, in either case less an amount equal to the
aggregate of (a) the amount of any property additions which during such
calendar year were included in an officers' certificate filed with the
Trustee as the basis for a sinking fund credit pursuant to the
provisions of a sinking fund for Bonds of any series and which as a
result of having been so included have been deemed, either without time
limit or only so long as any Bonds of such series are outstanding, to
have been `included in an officers' certificate filed with the Trustee
as the basis for a sinking fund credit' and to have been `made the
basis for action or credit hereunder' as such term is defined in
Subsection H of Section 1.10 of the Original Indenture, and (b)
166-2/3% of the principal amount of Bonds of any series which shall
have been delivered to the Trustee as a credit, or which the Company
shall have elected to apply as a credit, against any sinking fund
payment due during such calendar year for Bonds of any series, or which
shall have been redeemed in anticipation of, or out of moneys paid to
the Trustee on account of, any sinking fund payment due during such
calendar year for Bonds of any series and which as a result of having
been so made the basis of a credit upon a sinking fund payment and/or
so redeemed by operation of a sinking fund shall have been
disqualified, either without time limit or only so long as any Bonds of
such series are outstanding, from being made the basis of the
authentication and delivery of Bonds or of any other further action or
credit under the Original Indenture or any supplemental indenture.
Bonds delivered to the Trustee as, or applied as, a credit against any
sinking fund payment and Bonds redeemed in anticipation of any sinking
fund payment, regardless of the time when they were actually delivered,
applied or redeemed, for purposes of the preceding sentence shall be
deemed to have been delivered, applied or redeemed, as the case may be,
on the sinking fund payment date when such sinking fund payment was
due. Bonds redeemed out of moneys paid to the Trustee on account of any
sinking fund payment shall, regardless of the date when they were
redeemed, for purposes of the second preceding sentence, be deemed to
have been redeemed on the later of (i) the date on which such moneys
were paid to the Trustee or (ii) the sinking fund payment date when
such sinking fund payment was due."
(3) Subsection G of Section 1.10 of the Original Indenture, as
the same may be amended as hereinabove in this Section 1.07 provided,
be further amended by deleting therefrom the last two paragraphs
thereof and inserting therein a new last paragraph to read as follows:
"The aggregate amount of the minimum provision for depreciation
as applied
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to bondable public utility property and the aggregate amount of the
minimum provision for depreciation as applied to bondable public
utility property not subject to a prior lien from March 31, 1945 to any
date shall be the sum of the corresponding minimum provision for
depreciation for each completed calendar year between December 31, 1966
and such date, plus (1) the corresponding minimum provision for
depreciation for the period, if any, from the end of the most recent
such completed calendar year to such date, in each case determined as
set forth above, plus (2) $35,023,487.50, plus (3) an amount equal to
the aggregate of (a) the amount of any property additions which,
between December 31, 1966 and such date, became property additions of
the character described in clause (a) of the second paragraph of this
Subsection G and which, thereafter, also between December 31, 1966 and
such date, became `available additions' as a result of the fact that
all Bonds of such series ceased to be outstanding, and (b) 166-2/3% of
the principal amount of Bonds of any series which, between December 31,
1966 and such date, become Bonds of the character described in clause
(b) of the second paragraph of this Subsection G and which, thereafter,
also between December 31, 1966 and such date, became `available Bond
retirements' as a result of the fact that all Bonds of such series
ceased to be outstanding."
III. Each holder of any Bond of the _______ Series, by acceptance of
such Bond shall thereby consent that, at any time after the requisite consents,
if any, of the holders of Bonds of other series shall have been given as
hereinafter provided.
(1) the subparagraph numbered (3) of the third paragraph of Section
1.03 of each of the Sixteenth and the Eighteenth through the
Twenty-first Supplemental Indentures and the third paragraph of Section
1.03 of the Twenty-second Supplemental Indenture be amended by
inserting before the words "any available additions thus shown as a
credit" the phrase "provided, however, that so long as any Bonds of the
......... Series are outstanding" and inserting in the blank space of
such phrase the applicable designation of the series of Bonds created
by such supplemental indenture;
(2)(i) the fifth paragraph of Section 1.03 of the Ninth through the
Sixteenth Supplemental Indentures and the Eighteenth through the
Twenty-second Supplemental Indentures, which begins with the words "All
Bonds made the basis of a credit upon any sinking fund payment for
Bonds", (ii) Section 1.03 of the Seventeenth, Twenty-third and
Twenty-fourth Supplemental Indentures, (iii) the last sentence of the
fourth paragraph of Section 1.03 of the First, Third, Fifth, Sixth and
Seventh Supplemental Indentures, which begins with the words "All Bonds
delivered to the Trustee as part of or to anticipate any sinking fund
payment" and (iv) the last sentence of the fourth paragraph of Section
4.03 of the Original Indenture, which begins with the words "All Bonds
delivered to the Trustee as part of or to anticipate any sinking fund
payment", each be amended
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so as to read as follows:
"All Bonds made the basis of a credit upon any sinking fund
payment, and/or (except with respect to Bonds on which a notation of
partial payment shall be made as permitted by any provision of the
Original Indenture, of any supplemental indenture or of any agreement
entered into as permitted by the Original Indenture or by any
supplemental indenture) redeemed (whether on any sinking fund payment
date or in anticipation of any such sinking fund payment) by operation
of the sinking fund, for Bonds of the 1975 Series, or for Bonds of the
1977 Series, or for Bonds of the 1977 Second Series, or for Bonds of
the 1984 Series, or for Bonds of the 1986 Series, or for Bonds of the
4-7/8% Series due 1987, or for Bonds of the 1990 Series, or for Bonds
of the 1991 Series, or for Bonds of the 4-5/8% Series due 1993, or for
Bonds of the 4-3/4% Series due 1993, or for Bonds of the 1994 Series,
or for Bonds of the 1995 Series, or for Bonds of the 1996 Series, or
for Bonds of the 1997 Series, or for Bonds of the 2000 Series, or for
Bonds of the 2001 Series, or for Bonds of the 2002 Series, or for Bonds
of the 2003 Series, or for Bonds of the 2003 Second Series if not
theretofore canceled shall be canceled and, except as otherwise
provided in the supplemental indenture creating such series of Bonds,
or in another supplemental indenture amending such supplemental
indenture, so long as any Bonds of such series are outstanding shall
not (but without limiting the use of the principal amount thereof in
calculating any minimum provision for depreciation pursuant to the
provisions of Subsection G of Section 1.10 of the Original Indenture as
the same may be amended in accordance with the provisions of any
supplemental indenture) be made the basis of the authentication and
delivery of Bonds or of any further action or credit under the Original
Indenture or any supplemental indenture.
"To the extent that
(a) in any given year the principal amount of Bonds made the basis
of a credit upon any sinking fund payment, and/or redeemed
(whether on a sinking fund payment date or in anticipation of
a sinking fund payment) by operation of the sinking fund, for
Bonds of the 1975 Series, or for Bonds of the 1977 Series, or
for Bonds of the 1977 Second Series, or for Bonds of the 1984
Series, or for Bonds of the 1986 Series, or for Bonds of the
4-7/8% Series due 1987, or for Bonds of the 1990 Series, or
for Bonds of the 1991 Series, or for Bonds of the 4-5/8%
Series due 1993, or for Bonds of the 4-3/4% Series due 1993,
or for Bonds of the 1994 Series, or for Bonds of the 1995
Series or for Bonds of the 1996 Series,
does not exceed
(b) an amount equal to 1% of the greatest aggregate principal
amount of
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Bonds of such Series theretofore at any one time
outstanding, after deducting from said aggregate principal
amount the sum of the following amounts, in the event that
such sum would equal $500,000 or more, namely, (1) the
aggregate principal amount of Bonds of such Series theretofore
redeemed by the application of the proceeds of property
released from the lien of the Original Indenture or taken or
purchased pursuant to the provisions of Article Six of the
Original Indenture, and (2) the aggregate principal amount of
Bonds of such Series theretofore redeemed and retired and made
the basis for the withdrawal of such proceeds pursuant to
Section 7.03 of the Original Indenture or certified pursuant
to Section 6.06 of the Original Indenture in lieu of the
deposit of cash upon the release or taking of property; and
to the extent that
(c) in any given year the principal amount of Bonds made the basis
of a credit upon any sinking fund payment, and/or redeemed
(whether on a sinking fund payment date or in anticipation of
a sinking fund payment) by operation of the sinking fund, for
Bonds of the 1997 Series, or for Bonds of the 2000 Series, or
for Bonds of the 2001 Series, or for Bonds of the 2002 Series,
or for Bonds of the 2003 Series, or for Bonds of the 2003
Second Series,
does not exceed
(d) an amount equal to (1) 1% of the greatest aggregate principal
amount of Bonds of such Series theretofore at any one time
outstanding, after making the deductions from said aggregate
principal amount referred to in clause (b) of this paragraph,
minus (2) 60% of the amount of available additions made the
basis of a credit against such sinking fund payment,
the principal amount of Bonds so made the basis of a credit upon a
sinking fund payment and/or so redeemed by operation of the sinking
fund for Bonds of such Series shall not (but without limiting the use
of the principal amount thereof in calculating any minimum provision
for depreciation pursuant to the provisions of Subsection G of Section
1.10 of the Original Indenture as the same may be amended in accordance
with the provisions of any supplemental indenture) be made the basis of
the authentication and delivery of Bonds or of any other further action
or credit under the Original Indenture or any supplemental indenture;
and
to the extent that
(e) in any given year the amount of available additions made the
basis of a credit against any sinking fund payment for Bonds
of the 1997 Series, or
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for Bonds of the 2000 Series, or for Bonds of the 2001 Series,
or for Bonds of the 2002 Series, or for Bonds of the 2003
Series, or for Bonds of the 2003 Second Series,
does not exceed
(f) an amount equal to one and sixty-six and two-thirds one
hundredths percent (1.66-2/3%) of the greatest aggregate
principal amount of Bonds of such Series theretofore at any
one time outstanding, after making the deductions from said
aggregate principal amount referred to in clause (b) of this
paragraph,
the amount of available additions so made the basis of a credit against
a sinking fund payment shall (but without limiting the use of the
amount thereof in calculating any minimum provision for depreciation
pursuant to the provisions of Subsection G of Section 1.10 of the
Original Indenture as the same may be amended in accordance with the
provisions of any supplemental indenture) be deemed to have been
`included in an officers' certificate filed with the Trustee as the
basis for a sinking fund credit' and to have been `made the basis for
action or credit hereunder' as such term is defined in Subsection H of
Section 1.10 of the Original Indenture.
"From and after the time when all Bonds of any of the Series
referred to in (a) of the paragraph immediately preceding shall cease
to be outstanding, a principal amount of Bonds equal to the excess of
(i) the aggregate principal amount of Bonds made the basis of a
credit upon all sinking fund payments and/or redeemed by
operation of the sinking fund for Bonds of such Series as
set forth in said (a) in all years, over
(ii) the aggregate amounts set forth in (b) of the paragraph
immediately preceding with reference to Bonds of such Series
for all years,
shall become `available Bond retirements' as such term is defined in
Section 1.10.J. of the Original Indenture and may thereafter be
included in Item 4 of any `certificate of available Bond retirements'
thereafter delivered to and/or filed with the Trustee pursuant to
Section 3.02 of the Original Indenture; and from and after the time
when all Bonds of any of the Series referred to in (c) of the paragraph
immediately preceding shall cease to be outstanding, a principal amount
of Bonds equal to the excess of
(iii) the aggregate principal amount of Bonds made the basis of a
credit upon all sinking fund payments and/or redeemed by
operation of the sinking fund for Bonds of such Series as
set forth in said (c) in all years, over
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(iv) the aggregate amounts set forth in (d) of the paragraph
immediately preceding with reference to Bonds of such Series
for all years,
shall become `available Bond retirements' as such term is defined in
Section 1.10.J. of the Original Indenture and may thereafter be
included in Item 4 of any `certificate of available Bond retirements'
thereafter delivered to and/or filed with the Trustee pursuant to
Section 3.02 of the Original Indenture, and an amount of available
additions equal to the excess of
(v) the amount of available additions made the basis of a credit
against all sinking fund payments for Bonds of such Series as
set forth in (e) of the paragraph immediately preceding in all
years, over
(vi) the aggregate amounts set forth in (f) of the paragraph
immediately preceding with reference to Bonds of such Series
for all years,
shall become `available additions' as such term is defined in Section
1.10.I. of the Original Indenture and may thereafter be included in
Item 5 of any `certificate of available additions' thereafter filed
with the Trustee pursuant to Section 3.01 of the Original Indenture.";
(3) subsection H of Section 1.10 of the Original Indenture be
amended by inserting before the semicolon preceding clause (ii)
thereof, and as a part of clause (I) thereof, the words "if, to the
extent that, and so long as, the provisions of this Indenture or any
supplemental indentures creating or providing for any such fund or any
supplemental indentures amending the provisions creating or providing
for any such fund shall preclude the use of property additions so
included in an officers' certificate as the basis for further action or
credit hereunder"; Subsection I of Section 1.10 of the Original
Indenture be amended by changing the reference therein from "Item 5" to
"Item 7"; and Subsection J of Section 1.10 of the Original Indenture be
amended by changing the reference therein from "Item 4" to "Item 5";
(4) paragraph (3) of Section 3.01(A) of the Original Indenture be
amended by changing the period at the end thereof to a comma and adding
the following words thereto: "except to the extent otherwise provided
in this Indenture or in any supplemental indenture";
(5) the Certificate of Available Additions set forth in Section
3.03.A. of the Original Indenture be amended by
(i) adding new paragraphs (5) and (6) thereto immediately
preceding existing paragraph (5) thereof, as follows:
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"(5) The aggregate amount, if any, of available
additions included in Item 4 above which were so
included because the same were made the basis of a
credit upon any sinking fund payment for Bonds of
any series and which have subsequently again become
`available additions' as a result of the fact that
all Bonds of such series ceased to be outstanding,
is $.............
"(6) The aggregate amount of available additions
heretofore made the basis for action or credit
under said Indenture of Mortgage and which have not
subsequently again become `available additions' as
set forth in Item 5 above, namely Item 4 above
minus Item 5 above is $............"
(ii) renumbering existing paragraph (5) as paragraph (7) and
changing the references in renumbered paragraph (7) from
"Item 3 above minus Item 4 above" to "Item 3 above minus
Item 6 above",
(iii) renumbering existing paragraphs (6) and (7) as paragraphs
(8) and (9) and changing the references in renumbered
paragraph (9) from "Item 5 above minus Item 6 above" to
"Item 7 above minus Item 8 above", and
(iv) deleting "Item 7 above" in the second line of the
paragraph immediately succeeding renumbered paragraph (9)
and substituting "Item 9 above" therefor; and
(6) the Certificate of Available Bond Retirements set forth in
Section 3.03.B. of the Original Indenture be amended by
(i) adding a new paragraph (4) thereto immediately preceding
the existing paragraph (4) thereof, as follows:
"(4) The aggregate amount, if any, of Bonds previously
made the basis of a credit upon any sinking fund
payment for Bonds of any series, and/or redeemed
(whether on a sinking fund payment date or in
anticipation of sinking fund payment) by operation
of the sinking fund for Bonds of such series, which
have subsequently become `available Bond
retirements' as a result of the fact that all Bonds
of such series ceased to be outstanding is
$............"
(ii) renumbering the existing paragraph (4) as paragraph (5)
and revising the same to read as follows: "The amount of
presently available Bond retirements, namely the sum of
Items (1), (2), (3) and (4) above, is
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$............"
(iii) renumbering the existing paragraphs (5) and (6) as
(6) and (7), respectively, and changing the reference in
renumbered paragraph (7) from "Item 4 minus Item 5" to
"Item 5 minus Item 6".
IV. The amendments of Subsections A, G, H, I and/or J of Section 1.10
of the Original Indenture, of Sections 3.01, 3.03 and/or 4.03 of the Original
Indenture and/or of Section 1.03 of the First, Third, Fifth, Sixth, Seventh and
Ninth through Twenty-fourth Supplemental Indentures set forth above shall,
subject to the Company and the Trustee, in accordance with the provisions of
Section 17.02 of the Original Indenture, entering into an indenture or
indentures supplemental to the Original Indenture for the purpose of so
amending said Subsections A, G, H, I and/or J, Sections 3.01, 3.03 and/or 4.03
and/or Section 1.03, become effective at such time as the holders of not less
than 75% in principal amount of Bonds then outstanding or their
attorneys-in-fact duly authorized, including the holders of not less than 60%
in principal amount of the Bonds then outstanding of each series the rights of
the holders of which are affected by such amendment, shall have consented to
such amendment. No further vote or consent of the holders of Bonds of the
________ Series shall be required to permit such amendments to become effective
and in determining whether the holders of not less than 75% in principal amount
of Bonds outstanding at the time such amendments become effective have
consented thereto, the holders of all Bonds of the ________ Series then
outstanding shall be deemed to have so consented.
SECTION 1.09. This Article shall be of force and effect only so long as
any Bonds of the _____ Series are outstanding.
ARTICLE TWO.
TRUSTEE.
SECTION 2.01. The Trustee hereby accepts the trust hereby created. The
Trustee undertakes, prior to the occurrence of an event of default and after
the curing of all events of default which may have occurred, to perform such
duties and only such duties as are specifically set forth in the Original
Indenture as heretofore and hereby supplemented and modified, on and subject to
the terms and conditions set forth in the Original Indenture as so supplemented
and modified, and in case of the occurrence of an event of default (which has
not been cured) to exercise such of the rights and powers vested in it by the
Original Indenture as so supplemented and modified, and to use the same degree
of care and skill in their exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs.
The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Supplemental Indenture or the
Bonds issued
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hereunder or the due execution thereof by the Company. The Trustee shall be
under no obligation or duty with respect to the filing, registration, or
recording of this Supplemental Indenture or the re-filing, reregistration, or
re-recording thereof The recitals of fact contained herein or in the Bonds
(other than the Trustee's authentication certificate) shall be taken as the
statements solely of the Company, and the Trustee assumes no responsibility for
the correctness thereof.
ARTICLE THREE.
MISCELLANEOUS PROVISIONS.
SECTION 3.01. Although this Supplemental Indenture, for convenience and
for the purpose of reference, is dated ________, 199__, the actual date of
execution by the Company and by the Trustee is as indicated by their respective
acknowledgments hereto annexed.
SECTION 3.02. This Supplemental Indenture is executed and shall be
construed as an indenture supplemental to the Original Indenture as heretofore
supplemented and modified, and as supplemented and modified hereby, the
Original Indenture as heretofore supplemented and modified is in all respects
ratified and confirmed, and the Original Indenture as heretofore and hereby
supplemented and modified shall be read, taken and construed as one and the
same instrument. All terms used in this Supplemental Indenture shall be taken
to have the same meaning as in the Original Indenture except in cases where the
context clearly indicates otherwise.
SECTION 3.03. In case any one or more of the provisions contained in
this Supplemental Indenture or in the Bonds or coupons shall for any reason be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Supplemental Indenture, but this Supplemental Indenture shall be construed as
if such invalid or illegal or unenforceable provision had never been contained
herein.
SECTION 3.04. This Supplemental Indenture may be executed in any number
of counterparts, and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts, or as many of them as the
Company and the Trustee shall preserve undestroyed, shall together constitute
but one and the same instrument.
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IN WITNESS WHEREOF, Portland General Electric Company has caused this
Supplemental Indenture to be signed in its corporate name by its President or
one of its Senior Vice Presidents or one of its Vice Presidents and its
corporate seal to be hereunto affixed and attested by its Secretary or one of
its Assistant Secretaries, and in token of its acceptance of the trusts created
hereunder, Marine Midland Bank (formerly The Marine Midland Trust Company of
New York) has caused this Supplemental Indenture to be signed in its corporate
name by one of its Vice Presidents or one of its Assistant Vice Presidents or
one of its Corporate Trust Officers and its corporate seal to be hereunto
affixed and attested by one of its Corporate Trust Officers, all as of the day
and year first above written.
PORTLAND GENERAL ELECTRIC COMPANY
By:
-----------------------------------
Title:
Attest:
-----------------------------------------------
[Title]
[Seal]
MARINE MIDLAND BANK
By:
-----------------------------------
Title:
Attest:
-----------------------------------------------
[Title]
[Seal]
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State of Oregon )
) ss.:
County of Multnomah )
The foregoing instrument was acknowledged before me on this ___________
day of _______________, 199_ by _____________________, a _______________ of
PORTLAND GENERAL ELECTRIC COMPANY, an Oregon corporation, on behalf of said
corporation.
_______________________________
Notary Public for Oregon
My Commission Expires _________
[NOTARIAL SEAL]
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State of New York )
) ss.:
County of _________ )
The foregoing instrument was acknowledged before me on this
________________ day of __________, 199_ by ______________, an
________________________ of MARINE MIDLAND BANK, a New York banking corporation
and trust company, on behalf of said corporation.
___________________________________________
Notary Public, State of New York
No. ____________
Commission Expires ______________
[NOTARIAL SEAL]
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State of Oregon )
) ss.:
County of Multnomah )
______________________ and ____________________, a ______________ and
_____________, respectively, of PORTLAND GENERAL ELECTRIC COMPANY, an Oregon
corporation, the mortgagor in the foregoing mortgage named, being first duly
sworn, on oath depose and say that they are the officers above-named of said
corporation and that this affidavit is made for and on its behalf by authority
of its Board of Directors and that the aforesaid mortgage is made by said
mortgagor in good faith, and without any design to hinder, delay or defraud
creditors.
Subscribed and sworn to before me this _________ day of __________,
199_.
___________________________________________
Notary Public for Oregon
My Commission Expires __________
[NOTARIAL SEAL]
41
41
State of Oregon )
) ss.:
County of Multnomah )
______________________ and ____________________, a ______________ and
_____________, respectively, of PORTLAND GENERAL ELECTRIC COMPANY, an Oregon
corporation, the mortgagor in the foregoing mortgage named, being first duly
sworn, on oath depose and say that they are the officers above-named of said
corporation and that this affidavit is made for and on its behalf by authority
of its Board of Directors and that the aforesaid mortgage is made by said
mortgagor in good faith, and without any design to hinder, delay or defraud
creditors.
Subscribed and sworn to before me this _________ day of __________,
199_.
___________________________________________
Notary Public for Oregon
My Commission Expires __________
[NOTARIAL SEAL]
1
EXHIBIT 4(h)
================================================================================
PORTLAND GENERAL ELECTRIC COMPANY
TO
MARINE MIDLAND BANK
(FORMERLY THE MARINE MIDLAND TRUST
COMPANY OF NEW YORK)
Trustee.
_____________________________
____________ Supplemental Indenture
Dated _______________________
_____________________________
First Mortgage Bonds,
Medium Term Note Series ___
_____________________________
Supplemental to Indenture of Mortgage and Deed of Trust,
dated July 1, 1945 of Portland General Electric Company.
================================================================================
2
_____________________________ SUPPLEMENTAL INDENTURE, dated
___________________________, made by and between Portland General Electric
Company, an Oregon corporation (hereinafter called the "Company"), party of the
first part, and Marine Midland Bank (formerly The Marine Midland Trust Company
of New York), a New York bankingcorporation and trust company (hereinafter
called the "Trustee"), party of the second part.
WHEREAS, the Company has heretofore executed and delivered its Indenture of
Mortgage and Deed of Trust (herein sometimes referred to as the "Original
Indenture"), dated July 1, 1945, to the Trustee to secure an issue of First
Mortgage Bonds of the Company; and
WHEREAS, Bonds in the aggregate principal amount of $34,000,000 have heretofore
been issued under and in accordance with the terms of the Original Indenture as
Bonds of an initial series designated "First Mortgage Bonds, 3 1/8% Series due
1975" (herein sometimes referred to as the "Bonds of the 1975 Series"); and
WHEREAS, the Company has heretofore executed and delivered to the Trustee
several supplemental indentures which provided, among other things, for the
creation or issuance of several new series of First Mortgage Bonds under the
terms of the Original Indenture as follows:
SUPPLEMENTAL PRINCIPAL
INDENTURE DATED SERIES AMOUNT
------------- ----- ------ ------------
First 11-1-47 3 1/2% Series due 1977 $ 6,000,000(1)
Second 11-1-48 3 1/2% Series due 1977 4,000,000(1)
Third 5-1-52 3 1/2% Second Series due 1977 4,000,000(1)
Fourth 11-1-53 4 1/8% Series due 1983 8,000,000(2)
Fifth 11-1-54 3 3/8% Series due 1984 12,000,000(1)
Sixth 9-1-56 4 1/4% Series due 1986 16,000,000(1)
Seventh 6-1-57 4 7/8% Series due 1987 10,000,000(1)
Eighth 12-1-57 5 1/2% Series due 1987 15,000,000(3)
Ninth 6-1-60 5 1/4% Series due 1990 15,000,000(1)
Tenth 11-1-61 5 1/8% Series due 1991 12,000,000(1)
Eleventh 2-1-63 4 5/8% Series due 1993 15,000,000(1)
Twelfth 6-1-63 4 3/4% Series due 1993 18,000,000(1)
Thirteenth 4-1-64 4 3/4% Series due 1994 18,000,000(1)
Fourteenth 3-1-65 4.70% Series due 1995 14,000,000(1)
Fifteenth 6-1-66 5 7/8% Series due 1996 12,000,000
Sixteenth 10-1-67 6.60% Series due October 1, 1997 24,000,000
Seventeenth 4-1-70 8 3/4% Series due April 1, 1977 20,000,000(1)
Eighteenth 11-1-70 9 7/8% Series due November 1, 2000 20,000,000(4)
Nineteenth 11-1-71 8% Series due November 1, 2001 20,000,000(4)
Twentieth 11-1-72 7 3/4% Series due November 1, 2002 20,000,000
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SUPPLEMENTAL PRINCIPAL
INDENTURE DATED SERIES AMOUNT
------------- ----- ------ ------------
Twenty-first 4-1-73 7.95% Series due April 1, 2003 $ 35,000,000
Twenty-second 10-1-73 8 3/4% Series due October 1, 2003 17,000,000(4)
Twenty-third 12-1-74 10 1/2% Series due December 1, 1980 40,000,000(1)
Twenty-fourth 4-1-75 10% Series due April 1, 1982 40,000,000(1)
Twenty-fifth 6-1-75 9 7/8% Series due June 1, 1985 27,000,000(1)
Twenty-sixth 12-1-75 11 5/8% Series due December 1, 2005 50,000,000(4)
Twenty-seventh 4-1-76 9 1/2% Series due April 1, 2006 50,000,000(4)
Twenty-eighth 9-1-76 9 3/4% Series due September 1, 1996 62,500,000(4)
Twenty-ninth 6-1-77 8 3/4% Series due June 1, 2007 50,000,000(4)
Thirtieth 10-1-78 9.40% Series due January 1, 1999 25,000,000(4)
Thirty-first 11-1-78 9.80% Series due November 1, 1998 50,000,000(4)
Thirty-second 2-1-80 13 1/4% Series due February 1, 2000 55,000,000(4)
Thirty-third 8-1-80 13 7/8% Series due August 1, 2010 75,000,000(4)
Thirty-sixth 10-1-82 13 1/2% Series due October 1, 2012 75,000,000(4)
Thirty-seventh 11-15-84 11 5/8% Extendable Series A due 75,000,000(4)
November 15, 1999
Thirty-eighth 6-1-85 10 3/4% Series due June 1, 1995 60,000,000(4)
Thirty-ninth 3-1-86 9 5/8% Series due March 1, 2016 100,000,000(4)
Fortieth 10-1-90 Medium Term Note Series 200,000,000
Forty-first 12-1-91 Medium Term Note Series I 150,000,000
Forty-second 4-1-93 7-3/4% Series due April 15, 2023 150,000,000
Forty-third 7-1-93 Medium Term Note Series II 75,000,000
Forty-fourth 8-1-94 Medium Term Note Series III 75,000,000
Forty-fifth 5-1-95 Medium Term Note Series IV 75,000,000
Forty- ____ ______ __________________________ __,000,000
____________ ____________________________________________ __________
(1) Paid in full at maturity.
(2) This entire issue of Bonds was redeemed out of proceeds from the sale
of First Mortgage Bonds, 3 3/8% Series due 1984.
(3) This entire issue of Bonds was redeemed out of proceeds from the sale
of First Mortgage Bonds, 4 5/8% Series due 1993.
(4) Redeemed in full prior to maturity.
4
4
which bonds are sometimes referred to herein as the "Bonds of the 1977 Series",
"Bonds of the 1977 Second Series", "Bonds of the 1983 Series", "Bonds of the
1984 Series", "Bonds of the 1986 Series", "Bonds of the 4 7/8% Series due
1987", "Bonds of the 5 1/2% Series due 1987", "Bonds of the 1990 Series",
"Bonds of the 1991 Series", "Bonds of the 4 5/8% Series due 1993", "Bonds of
the 4 3/4% Series due 1993", "Bonds of the 1994 Series", "Bonds of the 1995
Series", "Bonds of the 1996 Series", "Bonds of the 1997 Series", "Bonds of the
1977 Third Series", "Bonds of the 2000 Series", "Bonds of the 2001 Series",
"Bonds of the 2002 Series", "Bonds of the 2003 Series", "Bonds of the 2003
Second Series", "Bonds of the 1980 Series", "Bonds of the 1982 Series", "Bonds
of the 1985 Series", "Bonds of the 2005 Series", "Bonds of the 2006 Series",
"Bonds of the 1996 Second Series", "Bonds of the 2007 Series", "Bonds of the
1999 Series", "Bonds of the 1998 Series", "Bonds of the 2000 Second Series",
"Bonds of the 2010 Series", "Bonds of the 2012 Series", "Bonds of the
Extendable Series A", "Bonds of the 1995 Second Series", "Bonds of the 2016
Series", "Bonds of the Medium Term Note Series", "Bonds of the Medium Term Note
Series I", "Bonds of the 2023 Series", "Bonds of the Medium Term Note Series
II", "Bonds of the Medium Term Note Series III", "Bonds of the Medium Term Note
Series IV", and "Bonds of the ____________," respectively; and
WHEREAS, the Original Indenture provides that the Company and the Trustee,
subject to the conditions and restrictions in the Original Indenture contained,
may enter into an indenture or indentures supplemental thereto, which shall
thereafter form a part of said Original Indenture, among other things, to
mortgage, pledge, convey, transfer or assign to the Trustee and to subject to
the lien of the Original Indenture with the same force and effect as though
included in the granting clauses thereof, additional properties acquired by the
Company after the execution and delivery of the Original Indenture, and to
provide for the creation of any series of Bonds (other than the Bonds of the
1975 Series), designating the series to be created and specifying the form and
provisions of the Bonds of such series as therein provided or permitted, and to
provide a sinking, amortization, replacement or other analogous fund for the
benefit of all or any of the Bonds of any one or more series, of such character
and of such amount, and upon such terms and conditions as shall be contained in
such supplemental indenture; and
WHEREAS, the Company has heretofore executed and delivered to the Trustee
the Fortieth Supplemental Indenture and the Forty-first Supplemental Indenture
amending in certain respects the Original Indenture, as theretofore
supplemented (such Original Indenture as so amended hereinafter referred to as
the "Original Indenture"); and
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5
WHEREAS, the Company desires to provide for the creation of a new series of
bonds to be known as "First Mortgage Bonds, Medium Term Note Series ___"
(sometimes herein referred to as the "Bonds of the Medium Term Note Series
___"), and to specify the form and provisions of the Bonds of such series, and
to mortgage, pledge, convey, transfer or assign to the Trustee and to subject
to the lien of the Original Indenture certain additional properties acquired by
the Company since the execution and delivery of the Original Indenture; and
WHEREAS, the Company intends at this time and from time to time to issue an
aggregate principal amount of Bonds of the Medium Term Note Series ___ not to
exceed $______________ under and in accordance with the terms of the Original
Indenture and the supplemental indentures above referred to; and
WHEREAS, the Bonds of the Medium Term Note Series ___ and the Trustee's
authentication certificate to be executed on the Bonds of the Medium Term Note
Series ___ are to be substantially in the following forms, respectively:
(Form of Bond of the Medium Term Note Series ___)
[Face of Bond]
Registered Registered
No. $
PORTLAND GENERAL ELECTRIC COMPANY
FIRST MORTGAGE BOND, MEDIUM TERM NOTE SERIES ___
[Fixed Rate](1)
ORIGINAL ISSUE DATE: [INITIAL INTEREST MATURITY DATE:
RATE: %](1)
INTEREST PAYMENT INTEREST PAYMENT INITIAL REGULAR
DATES: PERIOD: REDEMPTION DATE:
INITIAL REGULAR ANNUAL REGULAR OPTIONAL REPAYMENT
REDEMPTION PERCENTAGE: REDEMPTION PERCENTAGE DATE(S):
REDUCTION:
[BASE RATE:](1)
[INTEREST RESET
____________________
(1) Bracketed material may be added, deleted, or changed to reflect
whether the Bonds of the series to which this Supplemental Indenture relates
are to bear interest at a rate which may change during the life of such Bonds
or at a rate which is to be fixed during the life of such Bonds.
6
6
PERIOD: ](1)
[SPREAD MULTIPHER:](1) [MAXIMUM INTEREST [INTEREST RESET
RATE: %](1) DATES: ](1)
[SPREAD:](1) [MINIMUM INTEREST [INDEX MATURITY:](1)
RATE: %](1)
Portland General Electric Company, an Oregon corporation (hereinafter
sometimes called the "Company"), for value received, hereby promises to pay to
.............................................................................,
or registered assigns, ......................................................
Dollars on the Maturity Date specified above (except to the extent redeemed or
repaid prior to the Maturity Date), and to pay interest thereon [at the
Interest Rate per annum](1) specified above, [until the principal hereof is paid
or duly made available for payment, monthly, quarterly, semiannually or
annually, as specified above as the Interest Payment Period, and on the
Interest Payment Dates specified above, in each year commencing on the first
Interest Payment Date next succeeding the Original Issue Date specified above,
unless the Original Issue Date occurs between a Regular Record Date, as defined
below, and the next succeeding Interest Payment Date, in which case commencing
on the second Interest Payment Date succeeding the Original Issue Date, to the
registered holder of this bond on the Regular Record Date with respect to such
Interest Payment Date, and on the Maturity Date shown above (or any Redemption
Date as described on the reverse hereof or any Optional Repayment Date
specified above).](1) Interest on this bond will accrue from [the most recent
Interest Payment Date to which interest has been paid or duly provided for or,
if no interest has been paid, from the Original Issue Date specified above,
until the principal hereof has been paid or duly made available for payment.](1)
If the Maturity Date (or any Redemption Date or any Optional Repayment Date) or
an Interest Payment Date falls on a day which is not a Business Day as defined
below, principal or interest payable with respect to such Maturity Date (or
Redemption Date or Optional Repayment Date) or Interest Payment Date will be
paid [on the next succeeding Business Day](1) with the same force and effect as
if made on such Maturity Date (or Redemption Date or Optional Repayment Date)
or Interest Payment Date, as the case may be, and no interest shall accrue for
the period from and after such
____________________
(1) Bracketed material may be added, deleted, or changed to reflect
whether the Bonds of the series to which this Supplemental Indenture relates are
to bear interest at a rate which may change during the life of such Bonds or at
a rate which is to be fixed during the life of such Bonds.
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7
Maturity Date (or Redemption Date or Optional Repayment Date) or Interest
Payment Date. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, subject to certain exceptions, be paid
to the person in whose name this bond (or one or more predecessor bonds) is
registered at the close of business on the fifteenth day (whether or not a
Business Day) next preceding such Interest Payment Date (the "Regular Record
Date"); provided, however, that interest payable on the Maturity Date (or any
Redemption Date or any Optional Repayment Date) will be payable to the person
to whom the principal hereof shall be payable. Should the Company default in
the payment of interest ("Defaulted Interest"), the Defaulted Interest shall be
paid to the person in whose name this bond (or one or more predecessor bonds)
is registered on a subsequent record date fixed by the Company, which
subsequent record date shall be fifteen (15) days prior to the payment of such
Defaulted Interest. As used herein, "Business Day" means any day, other than a
Saturday or Sunday, [on which banks in The City of New York are not required or
authorized by law to close.](1)
Payment of the principal of and interest on this bond will be made in
immediately available funds at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan, The City of New York, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided, however, that
payment of interest on any Interest Payment Date other than the Maturity Date
(or any Redemption Date or any Optional Repayment Date) may be made at the
option of the Company by check mailed to the address of the person entitled
thereto as such address shall appear in the bond register of the Company. A
person holding $10,000,000 or more in aggregate principal amount of bonds
having the same Interest Payment Date (whether having identical or different
terms and provisions) will be entitled to receive payments of interest by wire
transfer of immediately available funds if appropriate written wire transfer
instructions have been received by the Trustee not less than sixteen days prior
to the applicable Interest Payment Date.
Reference is hereby made to the further provisions of this bond set forth
on the reverse hereof, and such further provisions shall for all purposes have
the same effect as though fully set forth at this place.
____________________
(1) Bracketed material may be added, deleted, or changed to reflect
whether the Bonds of the series to which this Supplemental Indenture relates
are to bear interest at a rate which may change during the life of such Bonds
or at a rate which is to be fixed during the life of such Bonds.
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This bond shall not become or be valid or obligatory for any purpose until
the authentication certificate hereon shall have been signed by the Trustee.
IN WITNESS WHEREOF, PORTLAND GENERAL ELECTRIC COMPANY has caused this
instrument to be executed manually or in facsimile by its duly authorized
officers and has caused a facsimile of its corporate seal to be imprinted
hereon.
Dated ..................
PORTLAND GENERAL ELECTRIC COMPANY,
By: ....................................
[Title]
Attest: ...................................
Secretary.
(Form of Trustee's Authentication Certificate for
Bonds of the Medium Term Note Series ___)
This is one of the bonds, of the series designated herein, described in the
within-mentioned Indenture.
MARINE MIDLAND BANK, AS TRUSTEE,
By: ....................................
Authorized Officer
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[Reverse of Bond]
This bond is one of the bonds, of a series designated as Medium Term Note
Series ___ of an authorized issue of bonds of the Company, known as First
Mortgage Bonds, not limited as to maximum aggregate principal amount, all
issued or issuable in one or more series under and equally secured (except
insofar as any sinking fund, replacement fund or other fund established in
accordance with the provisions of the Indenture hereinafter mentioned may
afford additional security for the bonds of any specific series) by an
Indenture of Mortgage and Deed of Trust dated July 1, 1945, duly executed and
delivered by the Company to The Marine Midland Trust Company of New York (now
Marine Midland Bank), as Trustee, as supplemented and modified by ______
supplemental indentures (such Indenture of Mortgage and Deed of Trust as so
supplemented and modified being hereinafter called the "Indenture"), to which
Indenture and all indentures supplemental thereto, reference is hereby made for
a description of the property mortgaged and pledged as security for said bonds,
the nature and extent of the security, and the rights, duties and immunities
thereunder of the Trustee, the rights of the holders of said bonds and of the
Trustee and of the Company in respect of such security, and the terms upon
which said bonds may be issued thereunder.
[This bond will not be subject to any sinking fund.](2)
This bond may be subject to repayment at the option of the holder on the
Optional Repayment Date(s), if any, indicated on the face hereof. If no
Optional Repayment Dates are set forth on the face hereof, this bond may not be
so repaid at the option of the holder hereof prior to maturity. On any
Optional Repayment Date this bond shall be repayable in whole or in part in
increments of $1,000 (provided that any remaining principal hereof shall be at
least $100,000) at the option of the holder hereof at a repayment price equal
to 100% of the principal amount to be repaid, together with interest thereon
payable to the date of repayment. For this bond to be repaid in whole or in
part at the option of the holder hereof, this bond must be received, with the
form entitled "Option to Elect Repayment" below duly completed, by the Trustee
at 140 Broadway, New York, New York 10015-1180, or such address which the
Company shall from time to time notify the holders of the bonds, not more than
60 nor less than 20 days prior to an Optional Repayment Date. Exercise of such
repayment option by the holder hereof shall be irrevocable.
This bond may be redeemed by the Company on any date on and after
__________________________________
(2) If any bond to which this Supplemental Indenture relates includes a
sinking fund, the provision thereof will be set forth in such bond.
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10
the Initial Regular Redemption Date, if any, indicated on the face hereof. If
no Initial Regular Redemption Date is set forth on the face hereof, this bond
may not be redeemed prior to maturity, except as provided in the second
succeeding paragraph. On and after the Initial Regular Redemption Date, if
any, this bond may be redeemed at any time in whole or from time to time in
part in increments of $1,000 (provided that any remaining principal hereof
shall be at least $100,000) at the option of the Company at the applicable
Regular Redemption Price (as defined below) together with interest thereon
payable to the date of such redemption, on notice given not more than 90 nor
less than 30 days prior to such date. Any date on which Bonds are to be
redeemed is herein called a "Redemption Date".
The "Regular Redemption Price" shall initially be the Initial Regular
Redemption Percentage, shown on the face hereof, of the principal amount of
this bond to be redeemed and shall decline at each anniversary of the Initial
Regular Redemption Date, shown on the face hereof, by the Annual Regular
Redemption Percentage Reduction, if any, shown on the face hereof, of the
principal amount to be redeemed until the Regular Redemption Price is 100% of
such principal amount.
The Bonds may be redeemed prior to maturity as a whole at any time or in
part from time to time (in increments as specified in the second preceding
paragraph) in the instances provided in the Indenture by the application of
proceeds of the sale or disposition substantially as an entirety of the
Company's electric properties at Portland, Oregon, upon payment of the
principal amount thereof, together with interest accrued to the date of such
redemption, on notice given as provided in such second preceding paragraph.
[Interest payments on this bond will include interest accrued to but
excluding the Interest Payment Date or the Maturity Date, as the case may be.
Interest payments for this bond will be computed and paid on the basis of a
360-day year of twelve 30-day months.](1)
If this bond or any portion thereof ($1,000 or an integral multiple
thereof) is duly called for redemption and payment duly provided for as
specified in the Indenture, this bond or such portion thereof shall cease to be
entitled to the lien of the Indenture from and after the date payment is so
provided for and shall cease to bear interest from and after the redemption
date fixed for such redemption.
__________________________________
(1) Bracketed material may be added, deleted, or changed to reflect
whether the Bonds of the series to which this Supplemental Indenture relates
are to bear interest at a rate which may change during the life of such Bonds
or at a rate which is to be fixed during the life of such Bonds.
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11
In the event of the selection for redemption of a portion only of the
principal of this bond, payment of the redemption price will be made only upon
surrender of this bond in exchange for a bond or bonds (but only of authorized
denominations) for the unredeemed balance of the principal amount of this bond.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than seventy-five percent in
principal amount of the bonds (exclusive of bonds disqualified by reason of the
Company's interest therein) at the time outstanding, including, if more than
one series of bonds shall be at the time outstanding, not less than sixty
percent in principal amount of each series affected, to effect, by an indenture
supplemental to the Indenture, modifications or alterations of the Indenture
and of the rights and obligations of the Company and of the holders of the
bonds and coupons; provided, however, that no such modification or alteration
shall be made without the written approval or consent of the holder hereof
which will (a) extend the maturity of this bond or reduce the rate or extend
the time of payment of interest hereon or reduce the amount of the principal
hereof or reduce any premium payable on the redemption hereof, (b) permit the
creation of any lien, not otherwise permitted, prior to or on a parity with the
lien of the Indenture, or (c) reduce the percentage of the principal amount of
the bonds upon the approval or consent of the holders of which modifications or
alterations may be made as aforesaid.
This bond is transferable by the registered owner hereof in person or by
his attorney duly authorized in writing, at the corporate trust office of the
Trustee in the Borough of Manhattan, City and State of New York, upon surrender
of this bond for cancellation and upon payment of any taxes or other
governmental charges payable upon such transfer, and thereupon a new registered
bond or bonds of the same series and of a like aggregate principal amount will
be issued to the transferee or transferees in exchange therefor.
The Company, the Trustee and any paying agent may deem and treat the person
in whose name this bond is registered as the absolute owner hereof for the
purpose of receiving payments of or an account of the principal hereof and
interest due hereon, and for all other purposes, whether or not this bond shall
be overdue, and neither the Company, the Trustee nor any paying agent shall be
affected by any notice to the contrary.
Bonds of this series are issuable only in fully registered form without
coupons in denominations of $100,000 or integral multiples of $1,000 in excess
thereof. The registered owner of this bond at his option may surrender the
same for cancellation at said office of the Trustee and receive in exchange
therefor the same aggregate principal amount of registered bonds
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of the same series and with the same terms and provisions, including the same
issue date, maturity date, and redemption provisions, if any, and which bear
interest at the same rate, but of other authorized denominations, upon payment
of any taxes or other governmental charges payable upon such exchange and
subject to the terms and conditions set forth in the Indenture.
If an event of default as defined in the Indenture shall occur, the
principal of this bond may become or be declared due and payable before
maturity in the manner and with the effect provided in the Indenture. The
holders, however, of certain specified percentages of the bonds at the time
outstanding, including in certain cases specified percentages of bonds of
particular series, may in the cases, to the extent and as provided in the
Indenture, waive certain defaults thereunder and the consequences of such
defaults.
No recourse shall be had for the payment of the principal of or the
interest on this bond, or for any claim based hereon, or otherwise in respect
hereof or of the Indenture, against any incorporator, shareholder, director or
officer, past, present or future, as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or such
predecessor or successor corporation, under any constitution or statute or rule
of law, or by the enforcement of any assessment or penalty, or otherwise, all
such liability of incorporators, shareholders, directors and officers, as such,
being waived and released by the holder and owner hereof by the acceptance of
this bond and as provided in the Indenture.
The Indenture provides that this bond shall be deemed to be a contract made
under the laws of the State of New York, and for all purposes shall be
construed in accordance with and governed by the laws of said State.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Company
to repay this bond (or portion hereof specified below) pursuant to its terms at
a price equal to the principal amount hereof together with interest to the
repayment date, to the undersigned, at..........................................
................................................................................
(Please print or typewrite name and address of the undersigned)
For this bond to be repaid, the Trustee must receive at 140 Broadway, New
York, New York 10015-1180, or at such other place or places of which the
Company shall from time to time notify the holder of this bond, not more than
60 nor less than 20 days prior to an Optional Repayment Date, if any, shown on
the face of this bond, this bond with this "Option
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to Elect Repayment" form duly completed.
If less than the entire principal amount of this bond is to be repaid,
specify the portion hereof (which shall be in increments of $ 1,000) which the
holder elects to have repaid and specify the denomination or denominations
(which shall be $100,000 or an integral multiple of $1,000 in excess of
$100,000) of the bonds to be issued to the holder for the portion of this bond
not being repaid (in the absence of any such specification, one such bond will
be issued for the portion not being repaid).
$........................
........................................
Date..................... NOTICE: The signature on this Option to
Elect Repayment must correspond with the
name as written upon the face of this bond
in every particular, without alteration
or enlargement or any change whatever.
(End of Form of Bond of the Medium Term Note Series ___)
and
WHEREAS, all acts and proceedings required by law and by the charter or
articles of incorporation and bylaws of the Company necessary to make the Bonds
of the Medium Term Note Series ___ to be issued hereunder, when executed by the
Company, authenticated and delivered by the Trustee and duly issued, the valid,
binding and legal obligations of the Company, and to constitute this
Supplemental Indenture a valid and binding instrument, have been done and
taken; and the execution and delivery of this Supplemental Indenture have been
in all respects duly authorized;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH, that, in order to
secure the payment of the principal of, premium, if any, and interest on all
Bonds at any time issued and outstanding under the Original Indenture as
supplemented and modified by the ____________ supplemental indentures
hereinbefore described and as supplemented and modified by this Supplemental
Indenture, according to their tenor, purport and effect, and to secure the
performance and observance of all the covenants and conditions therein and
herein contained, and for the purpose of confirming and perfecting the lien of
the Original Indenture on the properties of the Company hereinafter described,
or referred to, and for and in consideration of the premises and of the mutual
covenants herein contained, and acceptance of the Bonds of the Medium Term Note
Series ___ by the holders thereof, and for other valuable consideration, the
receipt whereof is hereby acknowledged, the Company has executed and delivered
this Supplemental Indenture and by these presents does grant, bargain, sell,
warrant, alien, convey, assign, transfer,
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mortgage, pledge, hypothecate, set over and confirm unto the Trustee the
following property, rights, privileges and franchises (in addition to all other
property, rights, privileges and franchises heretofore subjected to the lien of
the Original Indenture as supplemented by the ___________ supplemental
indentures hereinbefore described and not heretofore released from the lien
thereof), to wit:
CLAUSE I
Without in any way limiting anything hereinafter described, all and
singular the lands, real estate, chattels real, interests in land, leaseholds,
ways, rights-of-way, easements, servitudes, permits and licenses, lands under
water, riparian rights, franchises, privileges, electric generating plants,
electric transmission and distribution systems, and all apparatus and equipment
appertaining thereto, offices, buildings, warehouses, garages, and other
structures, tracks, machine shops, materials and supplies and all property of
any nature appertaining to any of the plants, systems, business or operations
of the Company, whether or not affixed to the realty, used in the operation of
any of the premises or plants or systems or otherwise, which have been acquired
by the Company since the execution and delivery of the Original Indenture and
not heretofore included in any indenture supplemental thereto, and now owned or
which may hereafter be acquired by the Company (other than excepted property as
defined in the Original Indenture).
CLAUSE II
All corporate, Federal, State, municipal and other permits, consents,
licenses, bridge licenses, bridge rights, river permits, franchises, grants,
privileges and immunities of every kind and description, owned, held, possessed
or enjoyed by the Company (other than excepted property as defined in the
Original Indenture) and all renewals, extensions, enlargements and
modifications of any of them, which have been acquired by the Company since the
execution and the delivery of the Original Indenture and not heretofore
included in any indenture supplemental thereto, and now owned or which may
hereafter be acquired by the Company.
CLAUSE III
Together with all and singular the plants, buildings, improvements,
additions, tenements, hereditaments, easements, rights, privileges, licenses
and franchises and all other appurtenances whatsoever belonging or in any wise
pertaining to any of the property hereby mortgaged or pledged, or intended so
to be, or any part thereof, and the reversion and reversions, remainder and
remainders, and the rents, revenues, issues, earnings, income, products and
profits thereof, and every part and parcel thereof, and
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all the estate, right, title, interest, property, claim and demand of every
nature whatsoever of the Company at law, in equity or otherwise howsoever, in,
of and to such property and every part and parcel thereof.
TO HAVE AND TO HOLD all of said property, real, personal and mixed, and all
and singular the lands, properties, estates, rights, franchises, privileges and
appurtenances hereby mortgaged, conveyed, pledged or assigned, or intended so
to be, together with all the appurtenances thereto appertaining and the rents,
issues and profits thereof, unto the Trustee and its successors and assigns,
forever:
SUBJECT, HOWEVER, to the exceptions, reservations, restrictions,
conditions, limitations, covenants and matters contained in all deeds and other
instruments whereunder the Company has acquired any of the property now owned
by it, and to permitted encumbrances as defined in Subsection B of Section 1.11
of the Original Indenture;
BUT IN TRUST NEVERTHELESS, for the equal and proportionate use, benefit,
security and protection of those who from time to time shall hold the Bonds and
coupons authenticated and delivered under the Original Indenture and the
___________ supplemental indentures hereinbefore described or this Supplemental
Indenture, and duly issued by the Company, without any discrimination,
preference or priority of any one bond or coupon over any other by reason of
priority in the time of issue, sale or negotiation thereof or otherwise, except
as provided in Section 11.28 of the Original Indenture, so that, subject to
said Section 11.28, each and all of said Bonds and coupons shall have the same
right, lien and privilege under the Original Indenture and the ___________
supplemental indentures hereinbefore described, or this Supplemental Indenture,
and shall be equally secured thereby and hereby and shall have the same
proportionate interest and share in the trust estate, with the same effect as
if all of the Bonds and coupons had been issued, sold and negotiated
simultaneously on the date of delivery of the Original Indenture;
AND UPON THE TRUSTS, USES AND PURPOSES and subject to the covenants,
agreements and conditions in the Original Indenture and the ___________
supplemental indentures hereinbefore described and herein set forth and
declared.
ARTICLE ONE.
BONDS OF THE MEDIUM TERM NOTE SERIES ___ AND
CERTAIN PROVISIONS RELATING THERETO.
SECTION 1.01. Certain Terms of Bonds of the Medium Term Note Series ___.
The aggregate principal amount of the Bonds of the Medium
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Term Note Series ___ shall be limited to $______________, excluding, however,
any Bonds of the Medium Term Note Series ___ which may be executed,
authenticated and delivered in exchange for or in lieu of or in substitution
for other Bonds of such Series pursuant to the provisions of the Original
Indenture or of this Supplemental Indenture.
The definitive Bonds of the Medium Term Note Series ___ shall be issuable
only in fully registered form without coupons in the denomination of $100,000,
or any amount in excess thereof that is a multiple of $1,000. Notwithstanding
the provisions of Section 2.05 of the Original Indenture, each Bond of the
Medium Term Note Series ___ shall be dated as of the date of its
authentication, and shall mature on such date not less than nine months nor
more than thirty years from such date, shall bear interest from such date,
shall bear interest at such rate or rates, which may be fixed or variable, and
have such other terms and conditions not inconsistent with the Original
Indenture as the Board of Directors of the Company, or any officer of the
Company acting pursuant to authority granted by the Board of Directors may
determine (the execution of any bond of the Medium Term Note Series ___ by any
authorized officer of the Company being, with regard to any holder of such
bond, conclusive evidence of such approval). Interest on Bonds of the Medium
Term Note Series ___ shall be payable on the dates established on the date of
first authentication of such Bond ("Original Issue Date"). The person in whose
name any Bond of the Medium Term Note Series ___ is registered at the close of
business on the applicable record date with respect to any interest payment
date shall be entitled to receive the interest payable thereon on such interest
payment date notwithstanding the cancellation of such Bond upon any transfer or
exchange thereof subsequent to such record date and prior to such interest
payment date, unless the Company shall default in the payment of the interest
due on such interest payment date, in which case such defaulted interest shall
be paid to the person in whose name such Bond is registered on a subsequent
record date fixed by the Company, which subsequent record date shall be fifteen
(15) days prior to the payment of such defaulted interest. Such interest
payments shall be made in such manner and in such places as provided on the
Form of Bonds of the Medium Term Note Series ___ set forth in this Supplemental
Indenture. The principal of the Bonds of the Medium Term Note Series ___ shall
be payable in any coin or currency of the United States of America which at the
time of payment is legal tender for the payment of public and private debts at
the office or agency of the Company in the Borough of Manhattan, City and State
of New York, and interest and premium, if any, on such Bonds shall be payable
in like coin or currency at said office or agency.
The definitive Bonds of the Medium Term Note Series ___ may be issued in
the form of Bonds, engraved, printed or lithographed on steel engraved borders.
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Upon compliance with the provisions of Section 2.06 of the Original
Indenture and as provided in this Supplemental Indenture, and upon payment of
any taxes or other governmental charges payable upon such exchange, Bonds of
the Medium Term Note Series ___ may be exchanged for a new Bond or Bonds of
different authorized denominations of like aggregate principal amount.
The Trustee hereunder shall, by virtue of its office as such Trustee, be
the registrar and transfer agent of the Company for the purpose of registering
and transferring Bonds of the Medium Term Note Series ___.
Notwithstanding the provisions of Section 2.11 of the Original Indenture,
no service charge shall be made for any exchange or transfer of Bonds of the
Medium Term Note Series ___, but the Company at its option may require payment
of a sum sufficient to cover any tax or other governmental charge incident
thereto.
SECTION 1.02. Redemption Provisions for Bonds of the Medium Term Note
Series ___. The Bonds of the Medium Term Note Series ___ shall be subject to
redemption prior to maturity as a whole at any time or in part from time to
time, including by operation of a sinking fund, as the Board of Directors of
the Company, or any officer of the Company acting pursuant to authority granted
by the Board of Directors may determine, and as set forth on the Form of Bonds
of the Medium Term Note Series ___ set forth in this Supplemental Indenture.
The Bonds of the Medium Term Note Series ___ which are redeemable on the
payment of a Regular Redemption Price as provided for in this Section 1.02 may
be redeemed at such Regular Redemption Price through the application of cash
deposited with the Trustee pursuant to Section 6.04 of the Original Indenture
upon the taking, purchase or sale of any property subject to the lien hereof or
thereof in the manner set forth in said Section.
The Bonds of the Medium Term Note Series ___ are also subject to redemption
through the application of proceeds of the sale or disposition substantially as
an entirety of the Company's electric properties at Portland, Oregon, which
proceeds are required by the provisions of Section 7.01 of the Original
Indenture to be applied to the retirement of Bonds, upon payment of the
principal amount thereof together with interest thereon payable to the date of
redemption.
SECTION 1.03. Notwithstanding the provisions of Section 4.07 of the
Original Indenture, the provisions of Sections 4.04, 4.05, and 4.06 of the
Original Indenture shall remain in full force and effect and shall be performed
by the Company so long as any Bonds of the Medium Term Note Series ___ remain
outstanding. The Bonds of the Medium Term Note
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Series ___ which are redeemable on the payment of a Regular Redemption Price as
provided for in Section 1.02 of this Supplemental Indenture may be redeemed at
such Regular Redemption Price with moneys remaining in the replacement fund
provided for in said Section 4.04 of the Original Indenture.
SECTION 1.04. The requirements which are stated in the next to the last
paragraph of Section 1.13 and in Clause (9) of Paragraph A of Section 3.01 of
the Original Indenture to be applicable so long as any of the Bonds of the 1975
Series are outstanding shall remain applicable so long as any of the Bonds of
the Medium Term Note Series ___ are outstanding.
SECTION 1.05. Notwithstanding the provisions of Section 2.06 or Section
2.10 of the Original Indenture, the Company shall not be required (i) to issue,
register, discharge from registration, exchange or transfer any Bond of the
Medium Term Note Series ___ for a period of fifteen (15) days next preceding
any selection by the Trustee of Bonds of the Medium Term Note Series ___ to be
redeemed or (ii) to register, discharge from registration, exchange or transfer
any Bond of the Medium Term Note Series ___ so selected for redemption in its
entirety or (iii) to exchange or transfer any portion of a Bond of the Medium
Term Note Series ___ which portion has been so selected for redemption.
SECTION 1.06. So long as any Bonds of the Medium Term Note Series ___
remain outstanding, all references to the minimum provision for depreciation in
the form of certificate of available additions set forth in Section 3.03 of the
Original Indenture shall be included in any certificate of available additions
filed with the Trustee, but whenever Bonds of the Medium Term Note Series ___
shall no longer be outstanding, all references to such minimum provisions for
depreciation may be omitted from any such certificate.
SECTION 1.07. I. Each holder of any Bond of the Medium Term Note Series
___ by acceptance of such Bond shall thereby consent that, at any time after
the requisite consents, if any, of the holders of Bonds of other series shall
have been given as hereinafter provided, Subsections A and G of Section 1.10 of
the Original Indenture be amended so as to read as follows:
"A. The term `bondable public utility property' shall mean and comprise
any tangible property now owned or hereafter acquired by the Company and
subjected to the lien of this Indenture, which is located in the States of
Oregon, Washington, California, Arizona, New Mexico, Idaho, Montana, Wyoming,
Utah and Nevada and is used or is useful to it in the business of furnishing or
distributing electricity for heat, light or power or other use, or supplying
hot water or steam for heat or power or steam for
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other purposes, including, without limiting the generality of the
foregoing, all properties necessary or appropriate for purchasing, generating,
manufacturing, producing, transmitting, supplying, distributing and/or
disposing of electricity, hot water or steam; provided, however, that the term
`bondable public utility property' shall not be deemed to include any
nonbondable property, as defined in Subsection B of this Section 1.10, or any
excepted property."
"G. The term `minimum provision for depreciation' for the period from
March 31, 1945 through December 31, 1966, as applied to bondable public utility
property, whether or not subject to a prior lien, shall mean $35,023,487.50.
"The term `minimum provision for depreciation' for any calendar year
subsequent to December 31, 1966, as applied to bondable public utility
property, shall mean the greater of (i) an amount equal to 2% of depreciable
bondable public utility property, as shown by the books of the Company as of
January 1 of such year, with respect to which the Company was as of that date
required, in accordance with sound accounting practice, to make appropriations
to a reserve or reserves for depreciation or obsolescence, or (ii) the amount
actually appropriated by the Company on its books of account to a reserve or
reserves for depreciation or obsolescence in respect of depreciable bondable
public utility property for such calendar year, in either case less an amount
equal to the aggregate of (a) the amount of any property additions which during
such calendar year were included in an officers' certificate filed with the
Trustee as the basis for a sinking fund credit pursuant to the provisions of a
sinking fund for Bonds of any series, and (b) 166 2/3% of the principal amount
of Bonds of any series which shall have been delivered to the Trustee as a
credit, or which the Company shall have elected to apply as a credit, against
any sinking fund payment due during such calendar year for Bonds of any series,
or which shall have been redeemed in anticipation of, or out of moneys paid to
the Trustee on account of, any sinking fund payment due during such calendar
year for Bonds of any series. Bonds delivered to the Trustee as, or applied
as, a credit against any sinking fund payment and Bonds redeemed in
anticipation of any sinking fund payment, regardless of the time when they were
actually delivered, applied or redeemed, for purposes of the preceding sentence
shall be deemed to have been delivered, applied or redeemed, as the case may
be, on the sinking fund payment date when such sinking fund payment was due.
Bonds redeemed out of moneys paid to the Trustee on account of any sinking fund
payment shall, regardless of the date when they were redeemed, for purposes of
the second preceding sentence, be deemed to have been redeemed on the later of
(i) the date on which such moneys were paid to the Trustee or (ii) the sinking
fund payment date when such sinking fund payment was due.
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"The minimum provision for depreciation for any calendar year subsequent to
December 31, 1966, as applied to bondable public utility property not subject
to a prior lien, shall be determined as set forth in the paragraph immediately
preceding, except that all references therein to `depreciable bondable public
utility property' shall be deemed to be `depreciable bondable public utility
property not subject to a prior lien'.
"The minimum provision for depreciation as applied to bondable public
utility property and the minimum provision for depreciation as applied to
bondable public utility property not subject to a prior lien for any period
commencing subsequent to December 31, 1966 which is of twelve whole calendar
months' duration but is other than a calendar year or which is of less than
twelve whole calendar months' duration shall be determined by multiplying the
number of whole calendar months in such period by one-twelfth of the
corresponding minimum provision for depreciation for the most recent calendar
year completed prior to the end of such period, and fractions of a calendar
month shall be disregarded.
"The aggregate amount of the minimum provision for depreciation as applied
to bondable public utility property and the aggregate amount of the minimum
provision for depreciation as applied to bondable public utility property not
subject to a prior lien from March 31, 1945 to any date shall be the sum of the
corresponding minimum provision for depreciation for each completed calendar
year between December 31, 1966 and such date, plus the corresponding minimum
provision for depreciation for the period, if any, from the end of the most
recent such completed calendar year to such date, in each case determined as
set forth above, plus $35,023,487.50.
"All Bonds credited against any sinking fund payment due subsequent to
December 31, 1966 for Bonds of any series and (except as provided in Section
9.04 with respect to Bonds on which a notation of partial payment shall be
made) all Bonds redeemed in anticipation of or out of moneys paid to the
Trustee as a part of any sinking fund payment due subsequent to December 31,
1966 for Bonds of any series, shall be canceled and no such Bonds, nor any
property additions which, subsequent to December 31, 1966, shall have been
included in an officers' certificate filed with the Trustee as the basis for a
sinking fund credit pursuant to the provisions of a sinking fund for Bonds of
any series, shall be made the basis of the authentication and delivery of Bonds
or of any other further action or credit hereunder."
II. Each holder of any Bond of the Medium Term Note Series ___, by
acceptance of such Bond shall thereby consent that, at any time after the
requisite consents, if any, of the holders of Bonds of other series shall have
been given as hereinafter provided:
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(1) Subsection A of Section 1.10 of the Original Indenture, as the same
may be amended as hereinabove in this Section 1.07 provided, be further
amended by replacing the word "and" between the words "Utah" and
"Nevada" with a comma and by adding after the word "Nevada" the words
"and Alaska";
(2) Subsection G of Section 1.10 of the Original Indenture, as the same
may be amended as hereinabove in this Section 1.07 provided, be further
amended by amending the second paragraph thereof to read as follows:
"The term `minimum provision for depreciation' for any calendar
year subsequent to December 31, 1966, as applied to bondable public
utility property, shall mean the greater of (i) an amount equal to 2% of
depreciable bondable public utility property, as shown by the books of
the Company as of January 1 of such year, with respect to which the
Company was as of that date required, in accordance with sound
accounting practice, to make appropriations to a reserve or reserves for
depreciation or obsolescence, or (ii) the amount actually appropriated
by the Company on its books of account to a reserve or reserves for
depreciation or obsolescence in respect of depreciable bondable public
utility property for such calendar year, in either case less an amount
equal to the aggregate of (a) the amount of any property additions which
during such calendar year were included in an officers' certificate
filed with the Trustee as the basis for a sinking fund credit pursuant
to the provisions of a sinking fund for Bonds of any series and which as
a result of having been so included have been deemed, either without
time limit or only so long as any Bonds of such series are outstanding,
to have been `included in an officers' certificate filed with the
Trustee as the basis for a sinking fund credit' and to have been `made
the basis for action or credit hereunder' as such term is defined in
Subsection H of Section 1.10 of the Original Indenture, and (b) 166 2/3%
of the principal amount of Bonds of any series which shall have been
delivered to the Trustee as a credit, or which the Company shall have
elected to apply as a credit, against any sinking fund payment due
during such calendar year for Bonds of any series, or which shall have
been redeemed in anticipation of, or out of moneys paid to the Trustee
on account of, any sinking fund payment due during such calendar year
for Bonds of any series and which as a result of having been so made the
basis of a credit upon a sinking fund payment and/or so redeemed by
operation of a sinking fund shall have been disqualified, either without
time limit or only so long as any Bonds of such series are outstanding,
from being made the basis of the authentication and delivery of Bonds or
of any other further action or credit under the Original Indenture or
any supplemental indenture. Bonds delivered
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to the Trustee as, or applied as, a credit against any sinking fund
payment and Bonds redeemed in anticipation of any sinking fund payment,
regardless of the time when they were actually delivered, applied or
redeemed, for purposes of the preceding sentence shall be deemed to have
been delivered, applied or redeemed, as the case may be, on the sinking
fund payment date when such sinking fund payment was due. Bonds
redeemed out of moneys paid to the Trustee on account of any sinking
fund payment shall, regardless of the date when they were redeemed, for
purposes of the second preceding sentence, be deemed to have been
redeemed on the later of (i) the date on which such moneys were paid to
the Trustee or (ii) the sinking fund payment date when such sinking fund
payment was due."
(3) Subsection G of Section 1.10 of the Original Indenture, as the same
may be amended as hereinabove in this Section 1.07 provided, be further
amended by deleting therefrom the last two paragraphs thereof and
inserting therein a new last paragraph to read as follows:
"The aggregate amount of the minimum provision for depreciation as
applied to bondable public utility property and the aggregate amount of
the minimum provision for depreciation as applied to bondable public
utility property not subject to a prior lien from March 31, 1945 to any
date shall be the sum of the corresponding minimum provision for
depreciation for each completed calendar year between December 31, 1966
and such date, plus (1) the corresponding minimum provision for
depreciation for the period, if any, from the end of the most recent
such completed calendar year to such date, in each case determined as
set forth above, plus (2) $35,023,487.50, plus (3) an amount equal to
the aggregate of (a) the amount of any property additions which, between
December 31, 1966 and such date, became property additions of the
character described in clause (a) of the second paragraph of this
Subsection G and which, thereafter, also between December 31, 1966 and
such date, became `available additions' as a result of the fact that all
Bonds of such series ceased to be outstanding, and (b) 166 2/3% of the
principal amount of Bonds of any series which, between December 31, 1966
and such date, become Bonds of the character described in clause (b) of
the second paragraph of this Subsection G and which, thereafter, also
between December 31, 1966 and such date, became `available Bond
retirements' as a result of the fact that all Bonds of such series
ceased to be outstanding."
III. Each holder of any Bond of the Medium Term Note Series ___, by
acceptance of such Bond shall thereby consent that, at any time after the
requisite consents, if any, of the holders of Bonds of other series shall have
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been given as hereinafter provided:
(1) the subparagraph numbered (3) of the third paragraph of
Section 1.03 of each of the Sixteenth and the Eighteenth through the
Twenty-first Supplemental Indentures and the third paragraph of Section
1.03 of the Twenty-second Supplemental Indenture be amended by inserting
before the words "any available additions thus shown as a credit" the
phrase "provided, however, that so long as any Bonds of the ...........
Series are outstanding" and inserting in the blank space of such phrase
the applicable designation of the series of Bonds created by such
supplemental indenture;
(2)(i) the fifth paragraph of Section 1.03 of the Ninth through
the Sixteenth Supplemental Indentures and the Eighteenth through the
Twenty-second Supplemental Indentures, which begins with the words "All
Bonds made the basis of a credit upon any sinking fund payment for
Bonds", (ii) Section 1.03 of the Seventeenth, Twentythird and
Twenty-fourth Supplemental Indentures, (iii) the last sentence of the
fourth paragraph of Section 1.03 of the First, Third, Fifth, Sixth and
Seventh Supplemental Indentures, which begins with the words "All Bonds
delivered to the Trustee as part of or to anticipate any sinking fund
payment" and (iv) the last sentence of the fourth paragraph of Section
4.03 of the Original Indenture, which begins with the words "All Bonds
delivered to the Trustee as part of or to anticipate any sinking fund
payment", each be amended so as to read as follows:
"All Bonds made the basis of a credit upon any sinking fund
payment, and/or (except with respect to Bonds on which a notation of
partial payment shall be made as permitted by any provision of the
Original Indenture, of any supplemental indenture or of any agreement
entered into as permitted by the Original Indenture or by any
supplemental indenture) redeemed (whether on any sinking fund payment
date or in anticipation of any such sinking fund payment) by operation
of the sinking fund, for Bonds of the 1975 Series, or for Bonds of the
1977 Series, or for Bonds of the 1977 Second Series, or for Bonds of the
1984 Series, or for Bonds of the 1986 Series, or for Bonds of the 4 7/8%
Series due 1987, or for Bonds of the 1990 Series, or for Bonds of the
1991 Series, or for Bonds of the 4 5/8% Series due 1993, or for Bonds of
the 4 3/4% Series due 1993, or for Bonds of the 1994 Series, or for
Bonds of the 1995 Series, or for Bonds of the 1996 Series, or for Bonds
of the 1997 Series, or for Bonds of the 2000 Series, or for Bonds of the
2001 Series, or for Bonds of the 2002 Series, or for Bonds of the 2003
Series, or for Bonds of the 2003 Second Series if not theretofore
canceled shall be canceled and, except as otherwise provided in the
supplemental
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indenture creating such series of Bonds, or in another supplemental
indenture amending such supplemental indenture, so long as any Bonds of
such series are outstanding shall not (but without limiting the use of
the principal amount thereof in calculating any minimum provision for
depreciation pursuant to the provisions of Subsection G of Section 1.10
of the Original Indenture as the same may be amended in accordance with
the provisions of any supplemental indenture) be made the basis of the
authentication and delivery of Bonds or of any further action or credit
under the Original Indenture or any supplemental indenture.
"To the extent that
(a) in any given year the principal amount of Bonds made the basis of a
credit upon any sinking fund payment, and/or redeemed (whether on a
sinking fund payment date or in anticipation of a sinking fund
payment) by operation of the sinking fund, for Bonds of the 1975
Series, or for Bonds of the 1977 Series, or for Bonds of the 1977
Second Series, or for Bonds of the 1984 Series, or for Bonds of the
1986 Series, or for Bonds of the 4 7/8% Series due 1987, or for
Bonds of the 1990 Series, or for Bonds of the 1991 Series, or for
Bonds of the 4 5/8% Series due 1993, or for Bonds of the 4 3/4%
Series due 1993, or for Bonds of the 1994 Series, or for Bonds of
the 1995 Series or for Bonds of the 1996 Series,
does not exceed
(b) an amount equal to 1% of the greatest aggregate principal amount of
Bonds of such Series theretofore at any one time outstanding, after
deducting from said aggregate principal amount the sum of the
following amounts, in the event that such sum would equal $500,000
or more, namely, (1) the aggregate principal amount of Bonds of
such Series theretofore redeemed by the application of the proceeds
of property released from the lien of the Original Indenture or
taken or purchased pursuant to the provisions of Article Six of the
Original Indenture, and (2) the aggregate principal amount of Bonds
of such Series theretofore redeemed and retired and made the basis
for the withdrawal of such proceeds pursuant to Section 7.03 of the
Original Indenture or certified pursuant to Section 6.06 of the
Original Indenture in lieu of the deposit of cash upon the release
or taking of property; and
to the extent that
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(c) in any given year the principal amount of Bonds made the basis of a
credit upon any sinking fund payment, and/or redeemed (whether on a
sinking fund payment date or in anticipation of a sinking fund
payment) by operation of the sinking fund, for Bonds of the 1997
Series, or for Bonds of the 2000 Series, or for Bonds of the 2001
Series, or for Bonds of the 2002 Series, or for Bonds of the 2003
Series, or for Bonds of the 2003 Second Series,
does not exceed
(d) an amount equal to (1) 1% of the greatest aggregate principal
amount of Bonds of such Series theretofore at any one time
outstanding, after making the deductions from said aggregate
principal amount referred to in clause (b) of this paragraph, minus
(2) 60% of the amount of available additions made the basis of a
credit against such sinking fund payment,
the principal amount of Bonds so made the basis of a credit upon a sinking
fund payment and/or so redeemed by operation of the sinking fund for Bonds
of such Series shall not (but without limiting the use of the principal
amount thereof in calculating any minimum provision for depreciation
pursuant to the provisions of Subsection G of Section 1.10 of the Original
Indenture as the same may be amended in accordance with the provisions of
any supplemental indenture) be made the basis of the authentication and
delivery of Bonds or of any other further action or credit under the
Original Indenture or any supplemental indenture; and
to the extent that
(e) in any given year the amount of available additions made the basis
of a credit against any sinking fund payment for Bonds of the 1997
Series, or for Bonds of the 2000 Series, or for Bonds of the 2001
Series, or for Bonds of the 2002 Series, or for Bonds of the 2003
Series, or for Bonds of the 2003 Second Series,
does not exceed
(f) an amount equal to one and sixty-six and two-thirds one hundredths
per cent (1.66 2/3%) of the greatest aggregate principal amount of
Bonds of such Series theretofore at any one time outstanding, after
making the deductions from said aggregate principal amount referred
to in clause (b) of this paragraph,
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the amount of available additions so made the basis of a credit against a
sinking fund payment shall (but without limiting the use of the amount
thereof in calculating any minimumprovision for depreciation pursuant to
the provisions of Subsection G ofSection 1.10 of the Original Indenture as
the same may be amended in accordance with the provisions of any
supplemental indenture) be deemed to have been `included in an officers'
certificate filed with the Trustee as the basis for a sinking fund credit'
and to have been `made the basis for action or credit hereunder' as such
term is defined in Subsection H of Section 1.10 of the Original Indenture.
"From and after the time when all Bonds of any of the Series referred to
in (a) of the paragraph immediately preceding shall cease to be
outstanding, a principal amount of Bonds equal to the excess of
(i) the aggregate principal amount of Bonds made the basis of a credit
upon all sinking fund payments and/or redeemed by operation of the
sinking fund for Bonds of such Series as set forth in said (a) in
all years, over
(ii) the aggregate amounts set forth in (b) of the paragraph immediately
preceding with reference to Bonds of such Series for all years,
shall become `available Bond retirements' as such term is defined in
Section 1.10.J. of the Original Indenture and may thereafter be included in
Item 4 of any `certificate of available Bond retirements' thereafter
delivered to and/or filed with the Trustee pursuant to Section 3.02 of the
Original Indenture; and from and after the time when all Bonds of any of
the Series referred to in (c) of the paragraph immediately preceding shall
cease to be outstanding, a principal amount of Bonds equal to the excess of
(iii) the aggregate principal amount of Bonds made the basis of a credit
upon all sinking fund payments and/or redeemed by operation of the
sinking fund for Bonds of such Series as set forth in said (c) in
all years, over
(iv) the aggregate amounts set forth in (d) of the paragraph immediately
preceding with reference to Bonds of such Series for all years,
shall become `available Bond retirements' as such term is defined in
Section 1.10.J. of the Original Indenture and may thereafter be included
27
27
in Item 4 of any `certificate of available Bond retirements' thereafter
delivered to and/or filed with the Trustee pursuant to Section 3.02 of the
Original Indenture, and an amount of available additions equal to the
excess of
(v) the amount of available additions made the basis of a credit
against all sinking fund payments for Bonds of such Series as set
forth in (e) of the paragraph immediately preceding in all years,
over
(vi) the aggregate amounts set forth in (f) of the paragraph immediately
preceding with reference to Bonds of such Series for all years,
shall become `available additions' as such term is defined in Section
1.10.I. of the Original Indenture and may thereafter be included in Item 5
of any `certificate of available additions' thereafter filed with the
Trustee pursuant to Section 3.01 of the Original Indenture.";
(3) subsection H of Section 1.10 of the Original Indenture be
amended by inserting before the semicolon preceding clause (ii) thereof,
and as a part of clause (1) thereof, the words "if, to the extent that, and
so long as, the provisions of this Indenture or any supplemental indentures
creating or providing for any such fund or any supplemental indentures
amending the provisions creating or providing for any such fund shall
preclude the use of property additions so included in an officers'
certificate as the basis for further action or credit hereunder";
Subsection I of Section 1.10 of the Original Indenture be amended by
changing the reference therein from "Item 5" to "Item 7"; and Subsection J
of Section 1.10 of the Original Indenture be amended by changing the
reference therein from "Item 4" to "Item 5";
(4) paragraph (3) of Section 3.01(A) of the Original Indenture be
amended by changing the period at the end thereof to a comma and adding the
following words thereto: "except to the extent otherwise provided in this
Indenture or in any supplemental indenture";
(5) the Certificate of Available Additions set forth in Section
3.03.A. of the Original Indenture be amended by
(i) adding new paragraphs (5) and (6) thereto immediately
preceding existing paragraph (5) thereof, as follows:
"(5) The aggregate amount, if any, of available additions
28
28
included in Item 4 above which were so included
because the same were made the basis of a credit upon
any sinking fund payment for Bonds of any series and
which have subsequently again become `available
additions' as a result of the fact that all Bonds of
such series ceased to be outstanding,is
$...............
"(6) The aggregate amount of available additions
heretofore made the basis for action or credit under
said Indenture of Mortgage and which have not
subsequently again become `available additions' as
set forth in Item 5 above, namely Item 4 above minus
Item 5 above is $.............
(ii) renumbering existing paragraph (5) as paragraph (7) and
changing the references in renumbered paragraph (7) from
"Item 3 above minus Item 4 above" to "Item 3 above minus
Item 6 above",
(iii) renumbering existing paragraphs (6) and (7) as paragraphs
(8) and (9) and changing the references in renumbered
paragraph (9) from "Item 5 above minus Item 6 above" to
"Item 7 above minus Item 8 above", and
(iv) deleting "Item 7 above" in the second line of the
paragraph immediately succeeding renumbered paragraph (9)
and substituting "Item 9 above" therefor; and
(6) the Certificate of Available Bond Retirements set forth in
Section 3.03.B. of the Original Indenture be amended by
(i) adding a new paragraph (4) thereto immediately preceding
the existing paragraph (4) thereof, as follows:
"(4) The aggregate amount, if any, of Bonds previously
made the basis of a credit upon any sinking fund
payment for Bonds of any series, and/or redeemed
(whether on a sinking fund payment date or in
anticipation of sinking fund payment) by operation
of the sinking fund for Bonds of such series,
which have subsequently become `available Bond
retirements' as a result of the fact that all
Bonds of
29
29
such series ceased to be outstanding is $........"
(ii) renumbering the existing paragraph (4) as paragraph (5)
and revising the same to read as follows: "The amount of
presently available Bond retirements, namely the sum of
Items (1), (2), (3) and (4) above, is $..........."
(iii) renumbering the existing paragraphs (5) and (6) as (6) and
(7), respectively, and changing the reference in
renumbered paragraph (7) from "Item 4 minus Item 5" to
"Item 5 minus Item 6".
IV. The amendments of Subsections A, G, H, I and/or J of Section 1.10 of
the Original Indenture, of Sections 3.01, 3.03 and/or 4.03 of the Original
Indenture and/or of Section 1.03 of the First, Third, Fifth, Sixth, Seventh and
Ninth through Twenty-fourth Supplemental Indentures set forth above shall,
subject to the Company and the Trustee, in accordance with the provisions of
Section 17.02 of the Original Indenture, entering into an indenture or
indentures supplemental to the Original Indenture for the purpose of so
amending said Subsections A, G, H, I and/or J, Sections 3.01, 3.03 and/or 4.03
and/or Section 1.03, become effective at such time as the holders of not less
than 75% in principal amount of Bonds then outstanding or their
attorneys-in-fact duly authorized, including the holders of not less than 60%
in principal amount of the Bonds then outstanding of each series the rights of
the holders of which are affected by such amendment, shall have consented to
such amendment. No further vote or consent of the holders of Bonds of the
Medium Term Note Series ___ shall be required to permit such amendments to
become effective and in determining whether the holders of not less than 75% in
principal amount of Bonds outstanding at the time such amendments become
effective have consented thereto, the holders of all Bonds of the Medium Term
Note Series ___ then outstanding shall be deemed to have so consented.
SECTION 1.08. This Article shall be of force and effect only so long as
any Bonds of the Medium Term Note Series ___ are outstanding.
ARTICLE TWO.
TRUSTEE.
SECTION 2.01. The Trustee hereby accepts the trust hereby created. The
Trustee undertakes, prior to the occurrence of an event of default and after
the curing of all events of default which may have occurred, to perform such
duties and only such duties as are specifically set forth in the
30
30
Original Indenture as heretofore and hereby supplemented and modified, on and
subject to the terms and conditions set forth in the Original Indenture as so
supplemented and modified, and in case of the occurrence of an event of default
(which has not been cured) to exercise such of the rights and powers vested in
it by the Original Indenture as so supplemented and modified, and to use the
same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Supplemental Indenture or the
Bonds issued hereunder or the due execution thereof by the Company. The
Trustee shall be under no obligation or duty with respect to the filing,
registration, or recording of this Supplemental Indenture or the re-filing,
re-registration, or re-recording thereof. The recitals of fact contained
herein or in the Bonds (other than the Trustee's authentication certificate)
shall be taken as the statements solely of the Company, and the Trustee assumes
no responsibility for the correctness thereof.
ARTICLE THREE.
MISCELLANEOUS PROVISIONS.
SECTION 3.01. Although this Supplemental Indenture, for convenience and
for the purpose of reference, is dated ____________, the actual date of
execution by the Company and by the Trustee is as indicated by their respective
acknowledgments hereto annexed.
SECTION 3.02. This Supplemental Indenture is executed and shall be
construed as an indenture supplemental to the Original Indenture as heretofore
supplemented and modified, and as supplemented and modified hereby, the
Original Indenture as heretofore supplemented and modified is in all respects
ratified and confirmed, and the Original Indenture as heretofore and hereby
supplemented and modified shall be read, taken and construed as one and the
same instrument. All terms used in this Supplemental Indenture shall be taken
to have the same meaning as in the Original Indenture except in cases where the
context clearly indicates otherwise.
SECTION 3.03. In case any one or more of the provisions contained in this
Supplemental Indenture or in the Bonds or coupons shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Supplemental Indenture, but this Supplemental Indenture shall be
31
31
construed as if such invalid or illegal or unenforceable provision had never
been contained herein.
SECTION 3.04. This Supplemental Indenture may be executed in any number of
counterparts, and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts, or as many of them as the Company
and the Trustee shall preserve undestroyed, shall together constitute but one
and the same instrument.
IN WITNESS WHEREOF, Portland General Electric Company has caused this
Supplemental Indenture to be signed in its corporate name by its President or
one of its Senior Vice Presidents or one of its Vice Presidents and its
corporate seal to be hereunto affixed and attested by its Secretary or one of
its Assistant Secretaries, and in token of its acceptance of the trusts created
hereunder, Marine Midland Bank (formerly The Marine Midland Trust Company of
New York) has caused this Supplemental Indenture to be signed in its corporate
name by one of its Vice Presidents or one of its Assistant Vice Presidents or
one of its Corporate Trust Officers and its corporate seal to be hereunto
affixed and attested byone of its Corporate Trust Officers, all as of the day
and year first above written.
PORTLAND GENERAL ELECTRIC
COMPANY
By: ____________________________________
Title: _________________________________
Attest:
___________________________________
Title: ____________________________
(Seal)
MARINE MIDLAND BANK
By: ____________________________________
Title: _________________________________
Attest:
___________________________________
Title: ____________________________
(Seal)
32
32
State of Oregon )
) ss.:
County of Multnomah )
The foregoing instrument was acknowledged before me on this _____ day of
__________ by ____________________________, a _____________________________ of
PORTLAND GENERAL ELECTRIC COMPANY, an Oregon corporation, on behalf of said
corporation.
_________________________________________
Notary Public for Oregon
My Commission Expires ___________________
[NOTARIAL SEAL]
33
33
State of New York )
) ss.:
County of _________________ )
The foregoing instrument was acknowledged before me on this _____ day of
___________ by _____________________, a(an) _____________________ of MARINE
MIDLAND BANK, a New York banking corporation and trust company, on behalf of
said corporation.
_________________________________________
Notary Public, State of New York
No. ______________
Commission Expires ______________________
[NOTARIAL SEAL]
34
34
State of Oregon )
) ss.:
County of Multnomah )
____________________________ and _________________________, a
________________________and ________________________________, respectively, of
PORTLAND GENERAL ELECTRIC COMPANY, an Oregon corporation, the mortgagor in the
foregoing mortgage named, being first duly sworn, on oath depose and say that
they are the officers above named of said corporation and that this affidavit
is made for and on its behalf by authority of its Board of Directors and that
the aforesaid mortgage is made by said mortgagor in good faith, and without any
design to hinder, delay or defraud creditors.
Subscribed and sworn to before me this _____ day of __________.
_________________________________________
Notary Public for Oregon
My Commission Expires ___________________
[NOTARIAL SEAL]
1
EXHIBIT 5
September 11, 1995
Portland General Electric Company
121 SW Salmon Street
Portland, Oregon 97204
Ladies and Gentlemen:
I refer to the proposed issue and sale of up to $250,000,000 principal
amount of Debt Securities ("Debt Securities") to be issued from time to time or
all at one time, by Portland General Electric Company (the "Company") with
respect to which the Company proposes to file a Registration Statement on Form
S-3 with the Securities and Exchange Commission ("Commission") under the
Securities Act of 1933, as amended, and Rule 415 thereof.
I am Deputy General Counsel to Portland General Corporation, the parent
corporation to the Company. I have general responsibility for legal matters
regarding corporate, financial and securities matters for the Company. As
such, I am generally familiar with the organization, history and affairs of
Portland General Corporation and the Company. I have examined the proposed
Registration Statement, including exhibits (the "Registration Statement"), to
which this opinion is attached as an exhibit, and such other corporate
documents, proceedings and questions of law as I have considered necessary.
Based on the foregoing, I am of the opinion that when (a) the
Registration Statement, and any amendments thereto, have become effective under
the Securities Act of 1933, as amended, (b) the indentures applicable to the
Debt Securities have been qualified under the Trust Indenture Act of 1939, as
amended, (c) an appropriate order or orders have been obtained from the Public
Utility Commission of Oregon, (d) the Company has authorized the issuance and
sale of the Debt Securities, (e) one or more prospectus supplements have been
filed with the Commission, (f) the Underwriting Agreement and/or the
Distribution Agreement has been duly executed by the parties thereto, (g) the
applicable indentures, and any indentures supplemental thereto, have been
executed by the Company and the trustee thereto and have been delivered by the
Company to the trustee, and (h) the Debt Securities have been duly executed,
authenticated, issued and delivered, the Debt Securities will be duly
authorized and will constitute legal, valid and binding obligations of the
Company, subject to the application of bankruptcy, insolvency, reorganization,
moratorium or similar laws and equitable principles relating to or limiting
creditors rights.
2
Portland General Corporation
September 11, 1995
Page 2
The statements made in the Registration Statement as to matters of law
and legal conclusions contained under the heading "Description of Debt
Securities" have been prepared under my supervision and have been reviewed by
me and such statements as to matters of law and legal conclusions are, in my
opinion, correct.
I hereby consent to filing of this opinion with the Registration
Statement and to the use of my name under the caption "Experts" included
therein.
Sincerely,
/s/ Steven F. McCarrel
---------------------------------------
Steven F. McCarrel
cc: Leonard A. Girard
Ronald W. Johnson
1
EXHIBIT 12
PORTLAND GENERAL ELECTRIC COMPANY
EARNINGS TO FIXED CHARGES - SEC BASIS
THE YEARS ENDED 12/31/94 - 12/31/90
and the Twelve Months Ended 6/30/1995
(Thousands of Dollars) 06/30/95 12/31/94 12/31/93 12/31/92 12/31/91 12/31/90
---------------------------- -------- -------- -------- -------- -------- --------
NET INCOME $ 81,831 $106,118 $ 99,744 $105,562 $ 74,075 $121,949
INCOME TAXES 63,134 74,937 75,492 70,629 48,235 85,875
-------- -------- -------- -------- -------- --------
INCOME BEFORE CUMULATIVE EFFECT $144,965 $181,055 $175,236 $176,191 $122,310 $207,824
ITEMS AND INCOME TAXES
FIXED CHARGES, EXCLUDING PREFERRED
DIVIDEND REQUIREMENT 90,552 84,650 82,156 84,899 93,079 98,177
-------- -------- -------- -------- -------- --------
EARNINGS BEFORE INCOME TAXES
AND FIXED CHARGES $235,517 $265,705 $257,392 $261,090 $215,389 $306,001
-------- -------- -------- -------- -------- --------
FIXED CHARGES:
INTEREST EXPENSE (long & short-term) 73,183 67,281 65,260 67,472 75,338 79,948
INTEREST ON LONG-TERM POWER
CONTRACTS (PUD'S) 9,679 9,679 9,591 9,438 9,700 9,485
INTEREST FACTOR IN LONG-TERM LEASES 7,690 7,690 7,305 7,989 8,041 8,744
-------- -------- -------- -------- -------- --------
TOTAL FIXED CHARGES $ 90,552 $ 84,650 $ 82,156 $ 84,899 $ 93,079 $ 98,177
======== ======== ======== ======== ======== ========
RATIO OF EARNINGS TO FIXED CHARGES
BEFORE INCOME TAXES 2.60 3.14 3.13 3.08 2.31 3.12
======== ======== ======== ======== ======== ========
1
EXHIBIT 24
POWER OF ATTORNEY
The undersigned director(s) of Portland General Electric Company
hereby appoint(s) Leonard A. Girard, Joseph M. Hirko, Steven N. Elliott and
Steven F. McCarrel, and each of them severally, as the attorney-in-fact of the
undersigned, to sign in the name(s) and behalf of the undersigned, in any and
all capacities stated therein, and to file with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, a Registration
Statement on Form S-3 with respect to an aggregate principal amount of up to
$250 million of secured and unsecured debt, and any and all amendments and
supplements thereto.
Dated: July 11, 1995
Portland, Oregon
/s/ Gwyneth Gamble Booth /s/ Jerry E. Hudson
---------------------------------------- -------------------------------------------------
Gwyneth Gamble Booth Jerry E. Hudson
/s/ Peter J. Brix
---------------------------------------- -------------------------------------------------
Peter J. Brix Warren E. McCain
/s/ Carolyn S. Chambers /s/ Jerome J. Meyer
---------------------------------------- -------------------------------------------------
Carolyn S. Chambers Jerome J. Meyer
/s/ John W. Creighton, Jr. /s/ Randolph L. Miller
---------------------------------------- -------------------------------------------------
John W. Creighton, Jr. Randolph L. Miller
/s/ Ken L. Harrison /s/ Richard G. Reiten
---------------------------------------- -------------------------------------------------
Ken L. Harrison Richard G. Reiten
/s/ Bruce G. Willison
-------------------------------------------------
Bruce G. Willison
1
EXHIBIT 25(a)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
----------------------
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
--------------------
MARINE MIDLAND BANK
(Exact name of trustee as specified in its charter)
New York 16-1057879
(Jurisdiction of incorporation (I.R.S. Employer
or organization if not a U.S. Identification No.)
national bank)
140 Broadway, New York, N.Y. 10005-1180
(212) 658-1000 (Zip Code)
(Address of principal executive offices)
PORTLAND GENERAL ELECTRIC COMPANY
(Exact name of obligor as specified in its charter)
Oregon 93-0256820
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
121 S.W. Salmon Street
Portland, Oregon 97204
(503) 464-8000 (Zip Code)
(Address of principal executive offices)
FIRST MORTGAGE BONDS
(Title of Indenture Securities)
2
General
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory
authority to which it is subject.
State of New York Banking Department.
Federal Deposit Insurance Corporation, Washington, D.C.
Board of Governors of the Federal Reserve System,
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe
each such affiliation.
None
3
Item 16. List of Exhibits.
Exhibit
-------
T1A(i) * - Copy of the Organization Certificate of Marine Midland Bank.
T1A(ii) * - Certificate of the State of New York Banking Department dated December
31, 1993 as to the authority of Marine Midland Bank to commence business.
T1A(iii) - Not applicable.
T1A(iv) * - Copy of the existing By-Laws of Marine Midland Bank as adopted on January
20, 1994.
T1A(v) - Not applicable.
T1A(vi) * - Consent of Marine Midland Bank required by Section 321(b) of the Trust
Indenture Act of 1939.
T1A(vii) - Copy of the latest report of condition of the trustee (March 31,
1995), published pursuant to law or the requirement of its
supervisory or examining authority.
T1A(viii) - Not applicable.
T1A(ix) - Not applicable.
* Exhibits previously filed with the Securities and Exchange
Commission with Registration No. 33-53693 and incorporated
herein by reference thereto.
4
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
Marine Midland Bank, a banking corporation and trust company organized under
the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York and State of New York on the 16th day
of June, 1995.
MARINE MIDLAND BANK
By: /s/ RICHARD G. PITTIUS
------------------------------------
Richard G. Pittius
Assistant Vice President
5
Exhibit T1A(vii)
This form is for use by State Banks only. It should be used for
publication purposes only, and should not be returned to the FDIC.
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Federal Reserve Bank
Administrator of State Banks
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
REPORT OF CONDITION
Consolidated Report of Condition of Marine Midland Bank of Buffalo, New York
and Foreign and Domestic Subsidiaries, a member of the Federal Reserve Sytem,
at the close of business on March 31, 1995, published in accordance with a call
made by the Federal Reserve Bank of this District pursuant to the provisions of
the Federal Reserve Act.
ASSETS
Thousands of dollars
Cash and balances due from depository institutions:
------------
Noninterest-bearing balances currency and coin . . . . . . . . . . . . . . . $974,096
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . . 897,640
Held-to-maturity securities . . . . . . . . . . . . . . . . . . . . . . . . . 2,095,379
Available-for-sale securities . . . . . . . . . . . . . . . . . . . . . . . . 43,753
Federal Funds sold and securities purchased under agreements to resell in
domestic offices of the bank and of its Edge and Agreement subsidiaries,
and in IBFs:
6
Federal funds sold . . . . . . . . . . . . . . . . . . . . . . . . . . . . 782,000
Securities purchased under agreements to resell . . . . . . . . . . . . . 317,383
----------
Loans and lease financing receivables:
Loans and leases net of unearned income . . . . . . . . . . . . . . . . . . 12,647,803
LESS: Allowance for loan and lease losses . . . . . . . . . . . . . . . . . 540,156
LESS: Allocated transfer risk reserve . . . . . . . . . . . . . . . . . . . 0
----------
Loans and lease, net of unearned income, allowance, and reserve . . . . . . 12,107,647
Trading assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 399,701
Premises and fixed assets (including capitalized leases) . . . . . . . . . . . 182,043
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . . . . 21,078
Investments in unconsolidated subsidiaries and associated companies . . . . . 0
Customers' liability to this bank on acceptances outstanding . . . . . . . . . 20,189
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61,282
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 656,014
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18,558,205
7
LIABILITIES
Deposits:
In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12,873,835
----------
Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,935,310
Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9,938,525
----------
In foreign offices, Edge, and Agreement subsidiaries, and IBFs . . . . . . . . 2,509,707
----------
Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,509,707
----------
Federal funds purchased and securities sold under agreements to repurchase
in domestic offices of the bank and its Edge and Agreement subsidiaries,
and in IBFs:
Federal funds purchased . . . . . . . . . . . . . . . . . . . . . . . . . . 412,770
Securities sold under agreements to repurchase . . . . . . . . . . . . . . . 325,438
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . . 94,586
Trading Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80,731
Other borrowed money:
With original maturity of one year or less . . . . . . . . . . . . . . . . .
8
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43,408
With original maturity of more than one year . . . . . . . . . . . . . . . . 0
Mortgage indebtedness and obligations under capitalized leases . . . . . . . . 38,288
Bank's liability on acceptances executed and outstanding . . . . . . . . . . . 20,189
Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . . . 225,000
Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413,450
Total liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17,037,402
Limited-life preferred stock and related surplus . . . . . . . . . . . . . . . 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus . . . . . . . . . . . . . . . . 0
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185,000
Surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,758,098
Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . . (422,295)
Net unrealized holding gains (losses) on available-for-sale securities . . . . 0
Cumulative foreign currency translation adjustments . . . . . . . . . . . . . 0
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,520,803
Total liabilities, limited-life preferred stock, and equity capital. . . . . . 18,558,205
____________
I, Gerald A. Ronning, Exec. Vice President & Controller of the above-named bank
hereby declare that (Name and title of officer authorized to sign report) this
Report of Condition has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true to
the best of my knowledge and belief.
/s/ Harold A. Ronning
Signature of officer authorized to sign report
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been preapared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
/s/ James H. Cleave
Director
/s/ B. J. Kennedy
Director
/s/ Henry J. Nowak
Director
1
EXHIBIT 25(c)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2) ____________
_________________
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(Jurisdiction of incorporation (I.R.S. Employer
if not a U.S. national bank) Identification No.)
48 Wall Street, New York, New York 10286
(Address of principal executive offices) (Zip code)
_________________
PORTLAND GENERAL ELECTRIC COMPANY
(Exact name of obligor as specified in its charter)
Oregon 93-0256820
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
17th Floor, One World Trade Center
121 SW Salmon Street
Portland, Oregon 97204
(Address of principal executive offices) (Zip code)
_________________
Debt Securities*
(Title of the indenture securities)
*Specific title to be determined in connection with sale of Debt Securities
2
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Superintendent of Banks of the 2 Rector Street, New York, N.Y. 10006
State of New York and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation 550 17th Street, N.W., Washington, D.C. 20429
New York Clearing House Association New York, N.Y.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 2.)*
ITEM 16. LIST OF EXHIBITS.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as an exhibit hereto, pursuant
to Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule 24 of
the Commission's Rules of Practice.
1. - A copy of the Organization Certificate of The Bank of
New York (formerly Irving Trust Company) as now in
effect, which contains the authority to commence
business and a grant of powers to exercise corporate
trust powers. (Exhibit 1 to Amendment No. 1 to Form
T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to
Form T-1 filed with Registration Statement No.
33-29637.)
4. - A copy of the existing By-laws of the Trustee.
(Exhibit 4 to Form T-1 filed with Registration
Statement No. 33-31019.)
6. - The consent of the Trustee required by
Section 321(b) of the Act. (Exhibit 6 to Form
T-1 filed with Registration Statement No.
33-44051.)
7. - A copy of the latest report of condition of
the Trustee published pursuant to law or to
the requirements of its supervising or
examining authority.
__________________________________
*Pursuant to General Instruction B, the Trustee has responded only to
Items 1, 2 and 16 of this form since to the best of the knowledge of the
Trustee the obligor is not in default under any indenture under which the
Trustee is a trustee.
3
NOTE
Inasmuch as this Form T-1 is being filed prior to the
ascertainment by the Trustee of all facts on which to base a responsive answer
to Item 2, the answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended
by an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank
of New York, a corporation organized and existing under the laws of the State
of New York, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in The City of New
York, and State of New York, on the 29th day of August, 1995.
THE BANK OF NEW YORK
By: /s/ VIVIAN GEORGES
-----------------------------------
Vivian Georges
Assistant Vice President
-2-
4
EXHIBIT 7
(Page 1 of 3)
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business June 30, 1995, published in accordance with a
call made by the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
------ ------------
Cash and balances due from
depository institutions:
Noninterest-bearing balances
and currency and coin . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 3,025,419
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . . . . 881,413
Securities:
Held-to-maturity securities . . . . . . . . . . . . . . . . . . . . . . . . . . 1,242,368
Available-for-sale securities . . . . . . . . . . . . . . . . . . . . . . . . . 1,774,079
Federal funds sold in domestic
offices of the bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,503,445
Securities purchased under
agreements to resell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200,634
Loans and lease financing
receivables:
Loans and leases, net of unearned
income. . . . . . . 26,599,533
LESS: Allowance for loan and
lease losses. . . . . . 516,283
Loans and leases, net of unearned
income and allowance . . . . . . . . . . . . . . . . . . . . . . . . . . . 26,083,250
Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . . . . . 1,455,539
Premises and fixed assets (including
capitalized leases) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 612,547
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79,667
Investments in unconsolidated subsid-
iaries and associated companies . . . . . . . . . . . . . . . . . . . . . . . . 198,737
Customers' liability to the bank on
acceptances outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,111,464
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105,263
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,237,264
---------
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $43,511,189
===========
LIABILITIES
-----------
Deposits:
In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $19,233,885
5
EXHIBIT 7
(Page 2 of 3)
Noninterest-bearing. . .7,677,954
Interest-bearing. . . .11,555,931
In foreign offices, Edge and
Agreement subsidiaries and IBFs . . . . . . . . . . . . . . . . . . . . . . . . 12,641,676
Noninterest-bearing. . . . 72,479
Interest-bearing. . . .12,569,197
Federal funds purchased and securities
sold under agreements to repurchase
in domestic offices of the bank and
of its Edge and Agreement subsid-
iaries, and in IBFs:
Federal funds purchased . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,747,669
Securities sold under agreements
to repurchase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73,553
Demand notes issued to the U.S.
Treasury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300,000
Trading liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 738,317
Other borrowed money:
With original maturity of one year or less . . . . . . . . . . . . . . . . . . 1,586,443
With original maturity of more than
one year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220,877
Bank's liability on acceptances
executed and outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . 1,113,102
Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . . . . . 1,053,860
Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,489,252
---------
Total liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40,198,624
----------
EQUITY CAPITAL
--------------
Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 942,284
Surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 525,666
Undivided profits and capital
reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,849,221
Net unrealized holding gains (losses)
on available-for-sale securities . . . . . . . . . . . . . . . . . . . . . . . ( 662)
Cumulative foreign currency
translation adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 3,944)
----------
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,312,585
---------
Total liabilities and equity capital . . . . . . . . . . . . . . . . . . . . . . $43,511,189
===========
I, Robert E. Kellman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Kellman
6
EXHIBIT 7
(Page 3 of 3)
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and to the best
of our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
is true and correct.
J. Carter Bacot )
Thomas A. Renyi ) Directors
Samuel F. Chevalier )
