20201014Application.pdf

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1407 W. North Temple, Suite 330
salt Lake city, utah 84116
October 14,2020
VU ELECTRONIC DELIWRY
Idaho Public Service Commission
I l33l W. Chinden Blvd
Building 8 Suite 20lA
Boise,Idaho 83714
Attention: Jan Noriyuki
Commission Secretary
RE: CASE NO. PAC-E-20-15'
IN THE MATTER OF THE APPLICATION OF ROCKY MOT'NTAIN POWER
FOR AUTHORITY TO ISST]E AND SELL OR EXCHANGE NOT MORE THAN
$3,000,000,000 oF DEBT, AND ENTER INTO CREDIT SUPPORT
ARRANGEMENTS
Please find for filing with the Idaho Public Utilities Commission Rocky Mountain Power's
Application in the above referenced matter. Please note that the Company's Application Fee in the
amount of $1,000 is being submitted under separate cover.
Please contact Ted Weston directly at [phone] if you have any further questions.
"^-D
Vice President, Regulation
Enclosures
Emily L. Wegener (pro hac vice)
Rocky Mountain Power
1407 West North Temple, Rm 320
salt Lake city, Utah 84116
Telephone: [phone]
Email : Emily.Wegener@pacifi corp.com
Attorneyfor RoclE Mountain Power
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION
OF ROCKY MOUNTAIN POWER FOR
AUTHORITY TO ISSUE AND SELL OR
EXCTIANGE NOT MORE THAN
$3,OOO,OOO,OOO OF DEBT, AND ENTER INTO
CREDIT SUPPORT ARRANGEMENTS
APPLICATION
CASENO. PAC.E.aO.I5
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Pursuantto Idaho Code $61-901 -904 and the Rules of Procedure of the Idaho Public
Utilities Commission, Rule l4l, PacifiCorp, doing business as Rocky Mountain Power
(the "Comp&try"), hereby files an application (the "Application") with the Idaho Public Utilities
Commission ("Commission") requesting authorization to issue and sell or exchange, in one or
more public offerings or private placements, fixed or floating rate debt ("Debt"). The aggregate
principal amount of Debt not to exceed $3,000,000,000 or, if the Debt is issued at an original issue
discount, such greater amount as shall result in an aggregate offering price of not more than
$3,000,000,000. In addition to entering into letter of credit arrangements with one or more banks
or such other agreements or alrangements as may be necessary or appropriate, from time to time,
to provide additional credit support for the payment of the principal oe the interest on, and the
premium of the Debt.
I. REQUEST FOR RELIEF
The Company respectfully requests that such authority remain in effect through
September 30,2025, so long as the Company maintains a BBB- or higher senior secured debt
rating, as indicated by Standard & Poor's Rating Services, and a Baa3 or higher senior secured
debt rating, as indicated by Moody's Investors Service, Inc.
APPLICATION OF ROCKY MOUNTAIN POWER I
This Application is intended to amend and supersede OrderNo .34205 issued on December
7, 2Ol8 in Case No. PAC-E-18-10. The Application seeks authorization to issue up to
$3,000,000,000 of long-term debt through September 30,2025 on the same terms and conditions
contained in Order No. 34205.
The Company respectfully requests that the Commission issue an order by December 15,
2020, and submits the following information in support of this Application:
(a.) The offrcial name of the applicant and address of its principal business office:
PacifiCorp, doing business as Rocky Mountain Power
825 N.E. Multnomah, Suite 2000
Portland, OR97232
(b.) The state and date of incorporation: each state in which it operates as a utilitv:
The Company was incorporated under Oregon law in August 1987 for the purpose of
facilitating consummation of a merger with Utah Power & Light Company, a Utah
corporation, and changing the state of incorporation of PacifiCorp from Maine to Oregon.
The Company currently serves customers as Rocky Mountain Power in Idaho, Utah and
Wyoming and as Pacific Power in California, Oregon and Washington.
II. COMMT'NICATIONS
(c.) The name. address. and telephone number of persons authorized to receive notices and
communications:
Nikki L. Kobliha,
Vice President, CFO and Treasurer
PacifiCorp
825 N.E. Multnomah, Suite 1900
Portland, OR 97232
Telephone: [phone]
E-mail: [e-mail]
Emily Wegener,
Senior Attorney
Rocky Mountain Power
1407 WestNorth Temple, Rm 320
Salt Lake city, uT 84116
Telephone: [phone]
E-mail : Emily.Weeener@f'acifi corD.com
APPLICATION OF ROCKY MOIJNTAIN POWER 2
Joelle Steward, Vice President
Vice President, Regulation
Rocky Mountain Power
1407 WestNorth Temple, Rm 330
salt Lake city, uT 84116
Telephone: [phone]
E-mail: [e-mail]
Ted Weston
Manager, Regulation
Rocky Mountain Power
1407 WestNorth Temple, Rm 330
salt Lake city, uT 841t6
Telephone : [phone]
E-mail: ted.weston@f acifi corp.com
It is respectfully requested that all formal correspondence and Staffrequests regarding this
material be addressed to:
By e-mail (preferred): [e-mail]
By regular mail: Data Request Response Center
PacifiCorp
825 NE Multnomah, Suite 2000
Portland, Oregon 97232
By fax: [phone]
Informal questions should be directed to Nikki Kobliha at [phone].
(d.) A full description of the securities oroposed to be issued:
(l) Type and nature ofsecurities:
Debt to be issued in one or more transactions as conditions permit. The Debt may
be secured or unsecured.
(2) Amount of securities:
Not more than $3,000,000,000 aggregate principal amount or, ifthe Debt is issued
at an original issue discount, such greater amount as shall result in an aggregate
offering price of not more than $3,000,000,000.
(3) Interest Rate:
If the Debt bears a fixed rate, the interest rate will be set at the time of issuance. If
the Debt bears a floating-rate, the interest rate will be set periodically based upon a
published or quoted index ofshort-term rates.
APPLICATION OF ROCKY MOI.JNTAIN POWER 3
(4)Dates of issuance and maturity:
The Company expects to issue the Debt from time to time in either public offerings
or private placements for cash or in exchange for its outstanding securities.
Maturities will be established at the time of issuance.
Institutional rating of the securities. or if not rated an explanation:(5)
The Company's debt is rated, as of the date of this filing, as follows
Security Moody's S&P
Senior Secured Debt Al A+
Senior Unsecured Debt A,3 A
(6) Stock Exchange on which listed:
The Company has generally not listed its bonds, but has in the past listed certain
unsecured debt on The New York Stock Exchange. If the Debt is issued publicly
in an overseas market, the Debt may be listed, if appropriate, on one or more foreign
exchanges.
(7) Additionaldescriptiveinformation:
Alternatives currently available to the Company include: (l) conventional first
mortgage bonds placed publicly orprivately in the domestic or foreign markets; (2)
unsecured debt securities placed publicly or privately in the domestic or foreign
markets; and (3) floating-rate debt placed publicly or privately in the domestic or
foreign markets. A brief description of these transactions is set forth below.
i. First Mortsaee Bonds - First mortgage bonds have been the traditional debt
financing vehicle utilized by utilities in the United States, and are typically
offered in public offerings but may be privately placed. First mortgage
bonds are secured by a mortgage on the fixed assets of the utility.
The bonds are typically redeemable through a make-whole call at
the Company's option at redemption prices dependent upon U.S. Treasury
APPLICATION OF ROCKY MOUNTAIN POWER 4
yields. This type of redemption feature does not typically require the issuer
to pay a higher coupon rate. The Company may determine that a call
provision is appropriate to provide financial flexibility in changing interest
rate environments, and the bonds may be redeemable at a premium over the
principal amount, with the premium declining to zero nearthe final maturity
ofthe bonds.
The Company's first mortgage bonds are issued as First Mortgage
Bonds under the PacifiCorp Mortgage. The Commission has previously
authorized the Company to incur the lien of the PacifiCorp Mortgage in
Case No. U-I046-15, Order No. 221 57.
The underwriting fee for First Mortgage Bond issuances varies by
the maturity of the debt but is not expected to exceed 0.875 percent of the
principal amount, and issuance fees in total are not expected to exceed 1.0
percent of the principal amount.
Unsecured Debt Securities - Unsecured debt securities will be subordinated
to the Company's First Mortgage Bonds. These securities may be issued in
one or more separate series or in a single series and placed publicly or
privately in the domestic or foreign markets. Principal amount, maturity,
interest rate and redemption terms are fixed at the time of sale.
Compensation to the agents varies by the maturity of each tranche
of securities issued, but is not expected to exceed one percent of the
principal amount of securities placed.
Floatine-Rate Debt - Floating-rate debt is a security with variable coupon
rates that reset periodically, such as daily, weekly, monthly, quarterly, semi-
annually or annually at the option of the Company. Common indices used
APPLICATION OF ROCKY MOUNTAIN POWER 5
ll.
lll.
for pricing floating-rate debt could be based upon U.S. Dollar LIBOR
(Eurodollar rates) or successor benchmark rates, federal funds rates or U.S.
Treasury rates.
Refunding provisions for floating-rate debt vary from transaction to
transaction depending upon the structure of the agreement. Should the
Company subsequently fix the interest rate through an interest rate swap or
cap, the cost of refunding would include the cost of unwinding the swap or
cap.
Floating-rate debt could be more advantageous than fixed-rate debt.
First, it can provide the Company with an occasional source of long-term
funding at attractive rates compared to the fixed-rate market. Second, it
allows the Company access to the short end of the yield curve when short-
term rates are attractive. Should rates begin to increase, the Company could
execute an interest rate swap or cap to secure a fixed rate.
The fees associated with a floating-rate debt arrangement are not
expected to exceed one percent of the principal amount of the debt.
Credit Support Arrangements - tn addition, the Company may find it
advantageous to enter into letter of credit arrangements with one or more
banks or such other agreements or arrangements as may be necessary or
appropriate, from time to time, to provide additional credit support for the
payment of the principal of the interest on and the premium of the Debt.
Such credit support arrangements could result in a lower all-in cost of debt.
APPLICATION OF ROCKY MOUNTAIN POWER 6
lv
(e.) A description of the method of issuance and sale or procedure by which any obligation as
suarantor will be assumed:
The Company proposes to issue the Debt from time to time in either public
offerings or private placements, domestically or overseas, for cash or in exchange for its
outstanding securities. The financial markets have become increasingly global and, as
such, foreign sources of capital compete directly with domestic sources for investment
opportunities. The Company anticipates that issuances will be primarily fixed-rate First
Mortgage Bonds, but it is requesting authority for a variety of borrowing options in order
to provide the financial flexibility to pursue the most attractive markets at the time of
issuance and to produce the most competitive cost for the Company.
Underwriters or placement agents will be selected after negotiations with a group
of potential candidates. The firm or firms selected to lead an offering under this authority
will be determined by the Company's assessment of their ability to assist the Company in
meeting its objective of having the lowest total cost for the Debt to be issued. This
assessment is based upon the level of underwriting or placement fees, their knowledge of
the Company and its varied operations, the Company's parent company and its affiliates,
and their ability to market the Debt to achieve the Company's financing and capital
structure objectives.
(f.) (1) (i) The name and address of an), person receivins a fee (other than a fee for technical
services) for negotiatine. issuing. or selling the securities or for securing an
underwriter. sellers. or purchasers of securities except as related to a competitive
bid:
Other than for technical services, the only fees payable by the Company will be
fees and expenses to the underwriters and agents. The Company may also incur an
annual fee for credit support which is not expected to exceed one percent on the
principal amount of the Debt.
APPLICATION OF ROCKY MOUNTAIN POWER 7
(iD The fee amount:
Subject to final negotiations, the fee is not expected to exceed 3.0 percent of the
aggregate principal amount of the Debt if the Debt is issued overseas. If issued
domestically, the fee is not expected to exceed 1.0 percent ofthe aggregate principal
amount ofthe Debt. The level ofthe fee is only one factor in determining the overall
cost of the Debt to be issued and, as such, is not the sole basis of the financing
decision.
(iii) The facts showing the reason for and reasonableness of the fee:
The aforementioned compensation levels to the agents or underwriters are
consistent with the usual and customary fees prevailing currently in the market.
These fees are reasonable given the services provided by the agents or underwriters.
The agents and the underwriters will be familiar with the Company, its parent
company and affiliates and their long-term financing needs. They will be available
for consultation on these matters and will assist the Company in evaluating market
conditions and in formulating the exact terms of the transactions. See subsection (f)
supra.
(g.) The purposes of the issuance:
The purposes for which the Debt is proposed to be issued in this matter are: (l) the
acquisition of property; (2) the construction, completion, extension or improvement of
utility facilities; (3) the improvement of service; (4) the discharge or lawful refunding of
obligations which were incurred for utility pulposes; or (5) the reimbursement of the
Company's treasury for funds used for the foregoing purposes.
The Company keeps its accounts in a manner which enables the Commission to
ascertain the amount of money expended and the purposes for which the expenditures were
made. If the funds to be reimbursed were used for the discharge or refunding of obligations,
APPLICATION OF ROCKY MOUNTAIN POWER 8
those obligations or their precedents were originally incurred in furtherance of the utility
purposes listed above.
To the extent that the funds to be reimbursed were used for the discharge or
refunding of obligations, those obligations or their precedents were originally incurred in
furtherance of utility purposes (1), (2) and (3) supra.
The results of the offerings are estimated to be:
(r)
Total Percent of Total
Gross Proceeds $ 3,000,000,000 100.000%
Less: AgentsAJnderwritersCompensation(r) 26.250.000 0.875%
Proceeds Payable to Company $2,973,750,000 99.125%
Less: Other Issuance Expenses 3.750.000 0.125%
Net Proceeds $2P7!*000J00
(l) Assumes the issuance of 30 year first mortgage bonds.
Other Issuance Expenses
Regulatory agency fees $ 1,000
SEC fees 327,300
Company counsel fees 560,000
Accounting fees 240,000
Printing and engraving fees 80,000
Rating agency fees 2,250,000
Trustee/Indenture fees 220,000
3909!%
Miscellaneous expenses 7r.700
TOTAL s 3.750.000
APPLICATION OF ROCKY MOUNTAIN POWER 9
(h.) Statement that applications for authority to finance are required to be filed with state
governments:
In addition to this Application, the Company is filing an application with the Oregon Public
Utility Commission and a nptice to the Washington Utilities and Transportation
Commission in connection with each issuance pursuant to Washington law. The California
Public Utilities Commission, the Utah Public Service Commission and the Wyoming
Public Service Commission have exempted the Company from their respective securities
statutes.
(i.) A statement of the facts relied upon to show that the issuance is appropriate:
As a public utility, the Company is expected to acquire, construct, improve and
maintain sufficient utility facilities to serve its customers adequately and reliably at
reasonable cost. The proposed issuances ofthe Debt are part ofa program to finance the
Company's facilities taking into consideration prudent capital ratios, earnings coverage
tests, market uncertainties and the relative merits of the various types of securities the
Company could sell or other financing it could arrange.
Accordingly, the proposed issuances: (1) are for lawful objects within the corporate
purposes of the Company; (2) are compatible with the public interest; (3) are necessary or
appropriate for or consistent with the proper performance by the Company of its service as
a public utility; (4) will not impair its ability to perform that service; and (5) are reasonably
necessary or appropriate for these purposes.
CI.) Statement. as of the date of the balance sheet submitted with this application. showing for
each class and series of capital stock: brief descriotion: the amount authorized (face value
and number of shares): the amount outstandins (exclusive of an), amount held in the
treasury). held amount as reacquired securities: amount pledqed by the Compan)r: amount
owned by affiliated interests. and amount held in any fund.
APPLICATION OF ROCKY MOI.INTAIN POWER IO
The capital stock as of June 30.2020 is as follows:
Outstanding
Shares
Cumulative Preferred Stock:
Serial Preferred, $100 stated value
(3,500,000 shares authorized)
6.O0Yo Series 5,930
7.00% Series 18,046
The lone-term debt as of June 30.2020 is as follows:
Description Authorized
First Mortgage Bonds:
3.85% Series due June 15,2021 $400,000,000
2.95% Series due February 1,2022 $450,000,000
2.95% Series due June 1,2023 $300,000,000
3.60% Series due April 1,2024 $425,000,000
3.35% Series due July 1,2025 $250,000,000
3.50% Series due June t5,2029 $400,000,000
2.70% Series due September 15,2030 $400,000,000
7.70Yo Series due November 15,2031 $300,000,000
5.90% Series due August 15,2034 $200,000,000
5.25% Series due June 15,2035 $300,000,000
6.10% Series due August 1,2036 $350,000,000
5.75% Series due April 1,2037 $600,000,000
6.25% Series due October 15,2037 $600,000,000
APPLICATION OF ROCKY MOUNTAIN POWER 11
Stated
Amount
$593,000
$1,804,600
57o Preferred, $100 stated value
(126,5 53 shares authorized)
No Par Serial Preferred
(1 6,000,000 shares authorized)
Total Preferred Stock 23,976 $2,397,600
Common Stock*:
No Par Value
(75 0,000,000 shares authorized)357,060,915
xAll shares of outstanding common stock are owned by PPW Holdings LLC, a wholly owned subsidiary oJ
Berlrshire Hathaway Energt C ompany.
(k.) Statement. as of the date of the balance sheet submitted with this application. showing for
each class and series of long-term debt or notes: brief description (amount" interest rate and
maturitv): amount authorized: amount outstanding (exclusive of anv amount held in the treasury):
amouni held as reacquired securities: amount pledged by the Company: amount held by affiliated
interest and amount in sinking and other funds.
Outstandins
$400,000,000
$450,000,000
$300,000,000
$425,000,000
$250,000,000
$400,000,000
$400,000,000
$300,000,000
$200,000,000
$300,000,000
$350,000,000
$600,000,000
$600,000,000
Description
First Mortgage Bonds:
6.35% Series due July 15,2038
6.00% Series due January 15,2039
4.10% Series due February 1,2042
4.l25%o Series due January 15,2049
4.15% Series due February 15,2050
3.300 Series due March 15,2051
8.53% MTN Series C due December 16,2021
8.375% MTN Series C due December 31,2021
8.26% MTN Series C due January 7,2022
8.27% MTN Series C due January 10,2022
8.05% MTN Series E due September 1,2022
8.07% MTN Series E due September 9,2022
8.ll% MTN Series E due September 9,2022
8.12% MTN Series E due September 9,2022
8.05% MTN Series E due September 14,2022
8.08% MTN Series E due October 14,2022
8.23% MTN Series E due January 20,2023
8.23% MTN Series E due January 20,2023
7.26% MTN Series F due July 21,2023
7.23% MTN Series F due August16,2023
7.24% MTN Series F due August 16,2023
6.72% MTN Series F due September 14,2023
6.75% MTN Series F due September 14,2023
6.75% MTN Series F due October26,2023
Pollution Control Revenue Bonds:
Converse County, Wyoming:
Y ariable%o Series 1992 due December l, 2020
Yariable%o Series 1994 due November 1,2024
Yaiableo/o Series 1995 dueNovember 1,2025
Sweetwater County, Wyoming :
YariableYo Series 1992A due December 1,2020
YariableYo Series 19928 due December 1,2020
YaiableYo Series 1994 due November I,2024
6.71% MTN Series G due January 15,2026 $100,000,000
Total First Mortgage Bonds
Authorized
$300,000,000
$650,000,000
$300,000,000
$600,000,000
$600,000,000
$600,000,000
$15,000,000
$5,000,000
$5,000,000
$4,000,000
$15,000,000
$8,000,000
$12,000,000
$50,000,000
$10,000,000
$51,000,000
$5,000,000
$4,000,000
$38,000,000
$15,000,000
$30,000,000
$2,000,000
$7,000,000
$48,000,000
$22,485,,000
$8,190,000
$5,300,000
$9,335,000
$6,305,000
$21,260,000
Outstanding
$300,000,000
$650,000,000
$300,000,000
$600,000,000
$600,000,000
$600,000,000
$15,000,000
$5,000,000
$5,000,000
$4,000,000
$15,000,000
$8,000,000
$12,000,000
$50,000,000
$10,000,000
$51,000,000
$5,000,000
$4,000,000
$38,000,000
$15,000,000
$30,000,000
$2,000,000
$7,000,000
$48,000,000
$100,000,000
$8,449,000,000
$22,485,000
$8,190,000
$5,300,000
$9,335,000
$6,305,000
$21,260,000
APPLICATION OF ROCKY MOUNTAIN POWER 12
Description
First Mortgage Bonds:
Lincoln County, Wyoming:
YariableYo Series 1994 due November 1,2024
YariableYo Series 1995 dueNovember 1,2025
Emery County, Utah:
Variableo/o Series 1994 due November 1,2024 $121,940,000
$256,250,000
$8,705,250,000
Description
Third Restated Articles of Incorporation effective
November 20, 1996, as amended effective
November 29,1999, (available upon request)
Bylaws, as amended effective May 23,2005, (available
upon request)
Resolutions of the Board of Directors authorizing the
proposed issuances
Balance Sheet, actual and pro forma, dated June 30,2020
Income Statement, actual and pro forma, for the 12
months ended June 30, 2020
SEC Registration Statement on Form S-3
Public invitation for proposal to purchase or underwrite
the proposed issuance 0lql-appligable.)
Copies of each proposal received for a negotiated
placement of the offering, a summary tabulation, a list of
prospective underwriters from whom no proposal was
received, and a justification of the accepted underwriting
proposal Nql_applicable)
Source and Uses of Treasury Funds, actual and pro forma,
dated June 30,2020
Authorized
$15,060,000
$22,000,000
Outstanding
$15,060,000
$22,000,000
$121,940,000
Total Pollution Control Revenue Bonds
Total Long-Term Debt
(1.) Anv other applicable exhibits:
The following exhibits are made apart of this Application:
Incorporated by
reference to:
Exhibit
A-l
Case Exhibit
PAC-E. A
02-4
A-2 PAC.E. A-2
07-02
APPLICATION OF ROCKY MOUNTAIN POWER 13
B
C
D
E
F
G
H
I A statement of the bond indenture or other limitations on
interest and dividend coverage, and the effects of those
limitations on this issuance
J** Prospectus
K** Underwriting Agreement or Agency Agreement
** Exhibit or supplement to the Exhibit is to be filed as soon as available.
III. MODIFIED PROCEDURE
Rocky Mountain Power believes that a technical hearing is not necessary to consider the
issues presented herein and respectfully requests that this Application be processed under Modified
Procedure, i.e., by written submissions rather than by hearing, in accordance with RP 201 et seq.
WHEREFORE, Rocky Mountain Power respectfully requests that the Commission issue
an order in this matter on or before December 15,2020, to be effective upon issuance, authorizing
Rocky Mountain Power to issue, sell, or exchange, in one or more public offerings or private
placements, fixed or floating rate Debt in the aggregate principal amount of not more than
$3,000,000,000 or, if the Debt is issued at an original issue discount, such greater amount as shall
result in an aggregate offering price of not more than $3,000,000,000, and enter into letter of credit
affangements with one or more banks or such other agreements or arrangements as may be
necessary or appropriate, from time to time, to provide additional credit support for the payment
of the principal of, the interest on, and the premium (if any) on the Debt. The Company requests
that such authority remain in effect until September 30, 2025, so long as the Company maintains
a BBB- or higher senior secured debt rating, as indicated by Standard & Poor's Rating Services,
and a Baa3 or higher senior secured debt rating, as indicated by Moody's Investors Service, Inc.
The Company agrees to continue to file with the Commission on a quarterly basis debt
reports including any Debt authorized by the requested order and, to the extent not otherwise an
obligation of the Company pursuant to Commitment I20 approved by Order No. 29998 in Case
No. PAC-E-05-8, all credit rating agency reports related to the Company issued during the quarter.
APPLICATION OF ROCKY MOUNTAIN POWER 14
RESPECTFULLY SUBMITTED this 14th day of October 2020.
ROCKY MOTINTAIN POWER
By:
Emily L.egener
Attorney for PacifiCorp
APPLICATION OF ROCKY MOUNTAIN POWER 15
YERIFICATION
I, Nikki L. Kobliha, declare, under penalty of perjury, that I am the duly appointed Vice
President, CFO and Treasurer of PacifiCorp and am authorized to make this verification. The
application and the attached exhibits were prepared at my direction and were read by me. I know
the contents of the application and the attached exhibits, and they are true, correct, and complete
of my own knowledge except those matters stated on information or belief which I believe to be
true.
WITNESS my hand and the seal of PacifiCorp on this 14ft day of October 2020
N L. Kobliha
(Seal)
Exhibit A
PROVIDED UPON REQUEST
Exhibit B
IINAI\IIMOUS WRITTEN CONSENT
OT TIIE BOARD OT DIRBCTORS
OF PACIIilCORP
Resolution No. 2020-003
Pursuant to ORS $60.341, the undersigped, constituting all of the current directors of
PacifiCorp, an Oregon corporation (the 'Company''), hereby adopt and consent to the
following resolutions as of September 15, 2020:
I.
tr. Searrities Attthori=ations
A. First Mortgaqe. aod Collateral Trust Bonds
WHEREAS, the Board of Directors of PacifiCorp (the 'Compan '), by
resolutions adopted Augrrst 14, 2018 (the "Prior Resolutions') authorized the
issuance and sale or excha.ge by the Company from time to time of up to
$2,000,000,000 (or the equivalent thereof at the time of issuance in foreigur
currencies) in agpgegate principal amormt of one ormore new series of its First
Mortgage and Collateral Trust Bonds, to be issued rmder and secured by the
Company's Mortgage and Deed of Trust dated as of Jamrary 9, 1989 to the
tnrstee thereunder (the "Tnrstee"), as heretofore amended and supplemented
and as it may be fiuther anrended and supplemented (the "PacifiCorp
Mortgage'); and
WHEREAS, it is now desirable to provide for the issuance of additional bonds
and restate the tmused authority of the Prior Resolutions; now, therefore, be it
RESOLVED, that the Board of Directors of the Company hereby authorizes
the issuance and sale or exchange by the Company, from time to time, of up to
$3,000,000,000 (or the equivalent thereof at the time of issuance in foreign
currencies) in aggregate principal amount of one or more new series of its First
Mortgage and Collateral Trust Bonds (the "Bonds"), to be issued under and
secured by the PacifiCorp Mortgage; and further
RESOLVED, that the Bonds may be sold, or may be exchanged for other
outstanding securities of the Company, publicly or in private transactions, in
such amounts, at such times, at such prices, may bear interest at such variable,
floating, or fixed rates, may be redeemable at such redemption prices, mature
at such date or dates, and have such other terms and characteristics as shall be
fixed by an Authorizing Officer (as defined below); provided, however, that
the issuance and sale or exchange by the Company of the Bonds shall be
subject to (1) the Company's first having obtained all necessary authorizations
therefor from the federal and state regulatory authorities having jurisdiction
over such issuance and sale or exchange and (2) the Company's compliance
with the registation requirements of all applicable federal and state securities
laws in connection with such issuance and sale or exchange; and further
RESOLVED, that in accordance with Section 2.03 of the Pacificorp
Mortgage, any of the Chief Executive Oflicer of the Company, the President
of the Company, any Vice President of the Company and the Chief Financial
Officer of the Company (each, an "Authorizing Officer"), acting jointly with
either the Treasurer or any Assistant Treasurer of the Company, is hereby
authorized and empowered, in the Company's name and on its behalf, to
establish one or more series of Bonds, and to approve one or more
Supplemental lndentures; and further
RESOLVED, that an Authorizing Officer, acting alone, is authorized to
execute (by manual or facsimile or electronic signature) and deliver Bonds in
such form and containing such terms, not inconsistent with Section 2.03 of the
PacifiCorp Mortgage (including, without limitation, the amounts thereof, the
rate or rates of interest, which may be floating or fixed, the maturity, sinking
fund and redemption or repurchase provisions, if any, and the currency
denomination of any such series), as an Authoizng Officer shall approve,
such approval to be conclusively evidenced by execution thereof by an
Authorizing Officer or by a certificate of an Authorizing Officer or by
transmittal of the terms of such series by any person designated in a certificate
of an AuthoizingOfficer as having the authority to transmit such approval to
the Trustee under the PacifiCorp Mortgage by computer or other electronic
means; provided that each such series of Bonds shall be a) in registered form
only, and b) shall have maturities at the time of issuance of not less than nine
months and not more than 31 years provided further, that an Authorizing
Officer shall not be authorized to approve the issuance of any series of Bonds
with fixed interest rates or initial floating interest rates exceeding 10 percent
per annum unless specifically authorized by the Board of Directors; and further
Resolution No. 2020-003
September 2020
Page2 of7
RESOLVED, that the Authorizing Officer executing any said series of Bonds
is hereby authorized and directed to deliver the Bonds to the Trustee for
authentication; and that the Trustee under the PacifiCorp Mortgage is hereby
requested to authenticate up to $3,000,000,000 in aggregate principal amount
of Bonds (or the equivalent thereof at the time of issuance in foreign
currencies), and to deliver the same upon the written order or orders of an
Authorizing Officer or upon instructions given under an automated issuance
system as described more fully in the PacifiCorp Mortgage or a supplement to
the PacifiCorp Mortgage; and further
RESOLVED, that the offrcers of the Company are hereby authorized and
directed to take or cause to be taken, in the Company's name and on its behalf,
any and all such further action as in their judgment may be desirable or
appropriate to cause the execution, authentication and delivery of said Bonds
as specified in the immediately preceding resolution; and further
RESOLVED, that The Bank of New York Mellon Trust Company, N.A., or
any successor trustee under the PacifiCorp Mortgage be and it hereby is
appointed:
1) as agent ofthe Company upon whom notices, presentations and demands
to or upon the Company in respect of First Mortgage and Collateral Trust
Bonds of each such series of Bonds, or in respect of the PacifiCorp
Mortgage, may be given or made;
2) as agent of the Company in respect of the payment of the principal of,
and the interest and any premium on, the Bonds of said series; and
3) as agent of the Company in respect of the registration, transfer and
exchange of said Bonds; and further
RESOLVED, that, in connection with the issuance and sale of any series of
Bonds denominated in foreign currencies, the Company shall enter into a
curency exchange, on such terms and conditions as shall be approved by any
Authorizing Officer, in order to fix the obligation of the Company to repay the
amount of said series and interest thereon in United States dollars; and further
RESOLVED, that, each of the Authorizing Officers is hereby authorized and
empowered, in the Company's name and on its behalf (i) to select one or more
underwriters or agents for the placement of the Bonds, (ii) to negotiate, execute
and deliver one or more underwriting, sales agency or interest rate swap
agreements or amendments, in one or more counterparts, including within such
agreements such terms and conditions (including terms concerning discounts,
fees, or indemnification) as the officer or officers executing such agreements
shall approve, his, her or their execution thereof to be conclusive evidence of
such approval; and further
Resolution No. 2020-003
September 2020
Page 3 of7
RESOLVED, that the Company is hereby authorized to enter into such credit
support or enhancement agreements or arrangements, and any amendments
thereto or renewals thereof, in connection with the issuance and sale or
exchange of the Bonds as an Authorizing Officer shall approve after first
determining that such agreements or alrangements are necessary or appropriate
in the circumstances.
B. Rezulatory Approvals for Financine
RESOLVED, that the officers of the Company are hereby authorized, in the
Company's name and on its behalf, to prepare and file with the Federal Energy
Regulatory Commission, California Public Utilities Commission, the Idaho
Public Utilities Commission, the Public Utility Commission of Oregon, the
Public Service Commission of Utah, the Washington Utilities and
Transportation Commission and the Wyoming Public Service Commission
and any other public service commission or federal or state regulatory
authority, as may be appropriate or necessary, applications for orders of said
regulatory authorities authorizing, notifying as to, or exempting, the issuance
and sale or exchange by the Company of the Bonds, together with any and all
amendments to such applications and with any and all exhibits, data requests
or other documents pertaining to such applications or any amendments thereto,
as in the judgment of such offrcers may appear desirable or appropriate; and
further
RESOLVED, that the acts of the officers in frling applications (and
amendments and supplements to such applications) with the regulatory
authorities named in the immediately preceding resolution, together with the
various exhibits to such applications (and such amendments and supplements),
for orders authorizing, notifuing as to, or exempting the issuance and sale or
exchange of the Bonds are hereby approved, ratified and confirmed; and
further
RESOLVED, that the officers of the Company are hereby authorized and
directed, in the Company's name and on its behalf, to make any and all such
further filings with, and to take any and all such fuither action in the
proceedings before, federal and state regulatory authorities as in the judgment
of the officer or officers taking such action may appear desirable or appropriate
for the purpose of obtaining any and all such further regulatory approvals,
authorizations or consents, or making any notifications, as may be required to
be obtained by the Company in connection with the consummation of the
issuance and sale or exchange by it of the Bonds; and further
RESOLVED, that each of the Authorizing Officers of the Company is hereby
authorized, in the Company's name and on its behalf, to prepare and execute,
and to file or cause to be filed, with the Securities and Exchange Commission,
Resolution No. 2020-003
September 2020
Page4 ofl
an appropriate Registration Statement or Statements, each including a
Prospectus, for the registration of the Bonds or any exchange of Bonds under
the Securities Act of 1933 and the rules and regulations promulgated
thereunder, in such form as they or any of them shall approve, together with
any and all such amendments to each such Registration Statement, and with
any and all such exhibits, statements or other documents pertaining to the
subject maffer thereof as in the judgment of such officers may appear desirable
or appropriate; and further
RESOLVED, that each of the Chief Financial OfIicer, the Treasurer, the
Assistant Treasurer(s) and the Corporate Secretary and any Assistant
corporate secretary is hereby appointed as the true and lawful attorney of the
Company with full power to act with or without the other and with full power
of substitution, to sign each such Registration Statement for the registration of
the Bonds under the Securities Act of 1933 for and on behalf of the company,
that each director of the Company, and each officer of the Company who may
be required to sign any such Registration Statement and any amendments
thereto, is hereby authorized to appoint the Chief Financial Officer, the
Treasurer, the Assistant Treasurer(s) and the Corporate Secretary and any
Assistant Corporate Secretary, and each of them severally, as the true and
lawful attorney or attorneys of each such director or officer of the Company,
with full power to act with or without the other and with full power of
substitution, to sign each such Registration Statement and any amendments
thereto for or on behalfofeach such director or officer in his or her capacity
or capacities as such, and that the President, any Vice President and each
director of the company and each offrcer ofthe company who may be required
to sign any such Registation Statement and any amendments thereto, is hereby
authorized and empowered to execute an appropriate power of affomey to
evidence such appointments as aforesaid; and further
RESOLVED, that the Chief Financial Officer, the Treasurer, the Assistant
Treasurer(s) and the Corporate Secretary and any Assistant Corporate
Secretary or any other officer designated by an Authorized Officer, be and
hereby is appointed as the agent for service named in each such Registration
Statement with all the powers incident to that appointment; and further
RESOLVED, that it is desirable and in the best interests of the Company that
its securities be qualified or registered for sale in variousjurisdictions, that any
officer is authorized to determine the states in which appropriate action shall
be taken to quali$ or register or maintain the qualification or registration for
sale of all or such part of the securities of the Company as said officers may
deem advisable, that said officers are hereby authorized to perform on behalf
of the Company any and all such acts as they may deem necessary or advisable
in order to comply with the applicable laws of any such jurisdiction, and in
connection therewith to execute and file all requisite papers and documents,
including, but not limited to, applications, reports, surety bonds, irrevocable
Resolution No. 2020-003
September 2020
Page 5 of7
consents, and appointments of attorneys for service of process and the
execution by such officers of any such paper or document or the doing by them
of any act in connection with the foregoing matters shall conclusively establish
their authority therefor from the Company and the approval and ratification by
the Company of the papers and documents so executed and the action so taken;
and further
RESOLVED, that each of the Authorizing offrcers of the company is hereby
authorized, in the Company's name and on its behalf, to negotiate with agents,
underwriters or other purchasers with respect of the terms of the issuance and
sale or exchange of each offering of the Bonds, and to execute and deliver, in
the Company's name and on its behalf, an agreement or agreements with such
agents, underwriters or purchasers providing for such issuance and sale or
exchange and containing such other terms and provisions (including, without
limitation, provisions for compensation, discounts or indemnification of such
parties) as shall be approved by the officer or officers executing such
agreement or agreements, his, her or their execution thereof to be conclusive
evidence of such approval.
C. Effect on Prior Resolutions
RESOLVED, that the foregoing resolutions shall supersede the Prior
Resolutions with respect to the Bonds, but the foregoing resolutions shall not
affect the validity of any actions taken in reliance on such previously adopted
resolutions and shall not affect the authorization of the issuance of bonds
issued prior to the date hereof issued pursuant to supplemental indentures
(which shall remain authorized pursuant to applicable prior resolutions).
ru. General Authorization
RESOLVED, that the officers and the Board of the Company be, and hereby
are, authorized, empowered and directed, in the name and on behalf of the
Company, to make all such arrangements, to take all such further action, to
cause to be prepared and filed any documents, to make all expenditures and
incur all expenses and to execute and deliver, in the name of and on behalf of
the Company, ffiy agfeements, instruments, certificates and documents
(including without limitation officers' certificates) as they may deem
necessary, appropriate or advisable in order to fully effectuate the purpose of
each and all of the foregoing resolutions, and the execution by such officers of
any such agreement, instrument, document or certificate or the payment of any
such expenditures or expenses or the doing by them of any act in connection
with the foregoing matters shall conclusively establish their authority therefor
from the Company and the approval and ratification by the Company of the
agreement, insffument, document or certificate so executed, the expenses or
expenditures so paid and the action so taken; and be it further
Resolution No. 2020-003
September 2020
Page 6 ofl
RESOLVED, that any and all actions heretofore taken by the officers or the
Board of the Company in connection with the matt,ers contemplated by the
foregoing resolutions, including without limitation the actions and matters
authorized herein and all related documents, insffurments and agreements, be,
and hereby are, approved, confirmed and ratified in all respects.
IN WITNESS WHEREOF, the directors of the Company have executed this written
consent as of the date written above.
maghL
Wittiu* J. F#rman Calvin D. Haack
Stefan A. Bird Gary W. Hoogeveen
Natalie L. Hocken Nikki L. Kobliha
Resolution No ,2020-003
September 2020
Page 7 of7
RESOLVED, that any and all actions herctofore taken by the offrcers or the
Board of the Company in connection with the matters contemplated by the
foregoing resolutions, including without limitation the actions and rnatters
authorized herein and all related docurnents, instuments and agrcements, be,
and hereby are, approved, confirmed and ratified in all respects.
IN WTINESS WHEREOF, the directors ofthe Company have executed this written
consent as of the date written above.
\
William J. Fehrman Calvin D.
Stefan A. Bird Gary W. Hoogeveen
Natalie L. Hocken Nikki L. Kobliha
Resolution No. 2020-003
Septrmber 2020
Page 7 of7
RESOLVED, that any and all actions heretofore taken by the officers or the
Board of the Company in connection with the matters contemplated by the
foregoing resolutions, including without limitation the actions and matters
authorized herein and all related documents, instruments and agreements, be,
and hereby are, approved, confirmed and ratified in all respects.
IN WITNESS WHEREOF, the directors of the Company have executed this written
consent as of the date written above.
William J. Fehrman Calvin D. Haack
Stefan A.GaryW.Hoogeveen
Natalie L. Hocken Nikki L. Kobliha
Resolution No. 2020-003
September 2020
PageT of7
RESOLVED, that any aod all ac'tions hcrctoforp taken by the offioers or the
Boand of the Compury in onwtion with the mafiers @ot€mplded by the
foregoing rpsolutions, including without limitation the actions ad marers
authorizod b€rein rnd all related aoqnnats, insnments md eglcam€nts, bG,
md her*y are, approvd oonfirmed and ratified in all rcspccts.
IN WITNESS WHEREOF, the directon of the Cornpany have exeq*ed tLis wrifi€o
oonsmt as of thc date written above.
William J. F€hrman CalvinD. Haack
Stefan A. Bird
Natalie L. Hockcn Nikki L. Kobliha
Resolution No. 2020-003
Scpt 0bcr2020
?agc7 of7
RESOLVED, $at any and all actions heretofore taken by the officers or theBoard of the Company in conncction with the matters contemplatcd by theforegoing resolutions, including without limitation the actions and mattersauthorizd herein and all related documents, insfiuments and agreements, be,
and hereby are, approved, confirmd and ratified in all respects.
IN WITNESS WHEREOF, the directors of the Company have executed this written
consemt as of the date written above.
William J. Fehrman Calvin D. Haack
Stefan A. Bird
Resolution No. 2020-003
Septembo2020
Page 7 of7
GaryW.Hoogeveen
Nikki L. Kobliha
RESOLVED, that any and all actions hmetofore taken by the officers or the
Bsard of the Company in connection with the matters contemplated by the
folpgoing resolutions, including x,ithout limitation the actions and matters
authorized herein and all related documents, insfium€nts and agreements, be,
and hereby are, ap'proved, confirmed and ratified in all respects.
IN W1INESS WHEREOF, the directors ofthe Company have executed this wlitten
consent as of the date written above.
William J. Fehnnan CalvinD. Haack
Stefan A. Bird Gary W. Hoogween
Nikki Kobl i ha ffi9ffi,?#Hfflr$.
Natalie L. Hocksr Nikki L. Kobliha
Resolution No. 2020-003
Scptembcr 2020
Page 7 of?
Exhibit C
PacifiGorp
Pro Foma lreuance of 13.0 bllllon of Long-term Debt
Propolcd Joum.l Entrlcs for th. l2ilonth P.dod End.d Jun. 30, 2020
Tcmporery Csh lnv.stments 131
Unamorttscd Debt Expcnse 181Bonds 22'l
Pnc..t . ol lr..il tg tt O bilild h rongfim.hbl
128 t2',t6
18'l
427 I 216
131
107
432 I 216
409 I 216
109 t216
236
2,970,000,(x)0
30,qn,m0
1,000,m0
99,000,000
3l:},lo5,932
2,371,891
537.'t68
3,000,000,000
1,0m,m0
99,(xx),mo
1,937,125,m0
78,425,955.00
1.012,300,955
33,405,932
2,909,s9
Bond3 221 1'937,125,m0
Cssh 131
Pre.Jt o,boil,b.u.Mua.d'Enm6tong:tuttd(il,nairrdE(lor.chdutdnrailttLtdt taBAN
,nowh&;tu:U)
Cash 131
lnteroclonLongFTcrmDebt 127 1216
Rdw.t lz.ff.rtlom nr/dilrrg bon t ,tpi,E d by nu L.ancF
78,425,955
Conltruciion wo* ln Progrrss 'lo7
cesh 131
Ramtntng pBcaarta o, bond Lauancs u.d foflNrc..ddliloill caplbt rPqdlrlg
1.012,3(x),955
Amortization of Debt Expcnsc
Unamonized Dcbt Exp€nse
Amrl/,,adon d a,,' area.. ror N Lauam
lnt€r.st on Long.T.rm Dcbt
Cash
,rrt'n'{ q t .o bll,b.n bN brunc.
Construction Work ln Progrcs3
AFUOC - bono\rcd fund3
C.pt&,IE d tun,drnm htfr..d catuP
lncomr TaxC3 - Fcdoral
lncomc Taxca - Statc
Taxe3A6rucd
NJa',x dLclol abon m.nd uP.m tmout',
Pro Formr A3lumptloN:
l) ProcaGd3 of longFtE m debt Esuance u3od to rrpk maturing bngFtarm dGbt and to ftnanca
capilal cxp.nditurrs.
2) Assumcd 30 yaar longitorm debt issuancc at 3.3006 mcr€3t rdc wlth 1.(M i$uancs cost8.
3) For purpoqca of pro forma rtatrmGnt!, thc rale ior lhc pro forma longFtom dGbl is3uancc urod to finance
nrw capilalspcnding B ssumcd as thc aioranc. for bonowld fun& u3cd during comtrudion r8ta.
4) SdEduled longFtcrm debt metudtics through 6/3(y24:
Annud morasl ror
l2-ilo P.fird Endcd
Jus3g.3QAS
$182,373
Amnt RdG
9,335,(xr0 Vrrhtrlr
22,45,000 vrtht c
6,3C5,000 V.ri.Hr
,(,0,000,000 3.850%
15,000,000 8.530%
5,000,000 E.375%
5,(x10,000 8260%
,1,000,000 6.270%
450,000,000 2.950%
15,m0,000 8.050%
8,000,000 E.070%
s0,000,000 8.120%
12,mO,OOo 6.110%
10,(x)0,000 8.050%
5t,mo,(xro 8.080%
9,000,000 6.230%
3qr,000,000 2.950%
38,000,m0 7.260%
15,000,000 7.2307o
30,000,000 7.2/t0%
2,000,m0 6.720%
7,000,000 5.750%
46,000,000 6.75070
425,000,000 3.600%
M.tun.vD.lc
Qtolno
12N1t20fn1l20
06/15/21
12J18t21
't2t31t21
01lo7li2,oltluin
o2N1ti22
@n1n2
@Dgm
o9n9tn
@t@n2
@1111122
1U11n2
01nu23
06t01123
07121123
0E/16/23
06/16/23
@t11n3
oot14t23
10r$t23
un1t21
$43E,149 '
$123,363 '
11s,,100,000
0'!,279,s00
ia16,750
t4r3,000
$330,800q13,27s,000
31,207,500
14t5,600
14.060,m0
t973,200
0E05,000
$/t,120,t00
$7t0,700
t8,650,000
u,758,800
$1,0E4,500
42,172,W
$134,400
t472,500
8s,2,10,000
$r5,300,000
$1,937,12s,fl,0 $7E,,125,9ss
*Th6 .nn[l intcrcst uplnsG for va]iabl}nt! PCRB obtg.tion is u astimt! tor thc pcriod, which u!43 thc
12-Month rndGd Drsmbcr 31. 2otg intsEct rmunb lor qlch of thc$ bond sri€s I dilclosld in lhc Companys
2019 FERC Fom'|, pagc 257.2, colum(i).
5) Efective foderal incomc tax rate of 20.0466% and €ffoc{ive state tax ratc of 4.9t0%.
SEE PACINCORFS 2OI9 FERC FORM NO. I AND Q2-2020 FERC FORM 3.Q FOR TTIE NOTES TO THE TINANCIAL STATEMENTS
E](}IIBIT C
PAGE I OF 3
ASSETS AND OTHER DEBITS
IUIAL
CORPORATION
rKUrfr!Eu
FINANCING
1\,tru
PROFOR}IA
UTILII-
29.038.700.836 29.038.700.836
2.446.343.695 1.(N5.706.867 3.492.050.582
31.485.044.531 't.()l[5.706.887 32.530.751.416
1 0.945.E6E.536 10 945 868.536
20 539.175_995 1.045.706.667 21.5U.882.8E2
VESTMENTS
12.335.331 12_335_331
OF 3.204.912 3.208.512
69.928 69,928
117099330 't't7.099.330
101 050 143 101.060.143
OTHER SPECIqL FUNDS (128)39.700.074 39.700.074
!I PORTION OF DERM'TIVE INSTRUMENT ASSETS (175)6.649.129 6.649.129
&273.705.O23 273.705.023
CURRENT iTs
GASH (131 '15.529,581 15_52S.581
34.824 u.424
IY CASH IIWESTMENT 1135'l 693.761.361 693 761.361
NOTES REI 'l 371 492 't.371.852
_F (1.121 376.559.660 376.559.660
28.144.239 28.144.239
PROV -LECTIBLE ACCOUNTS (1/t4)CR 13,816.835 1 3.816.835
389 389
isoctATED CoMPANIES (146)638.049 638.(N9
FUEL STOCK (151-152)217.950.020 217.950.020
256.490.251 256.490.251
PREPAYMENTS {165)62 994 452 62.954.492
i/ABLE (171)31.044 31.O44
756.256 756.256
259.852.000 259.852.000
ANDACCRUED 5.260.51 0 5.260.510
PORTION : INSTRUMENT ASSETS (175)11.559,633 1 1.569.633
OF 6.649.129 6.649.r29
TOTAL AND I ASSETS 1.510.478.237 1_910_478.237
DEFERRED
EXPENSE 38.962.1 62 29.000,000 67.962.142
1 130 968.647 't.130.96E.647
SURVEY &}ATION CHARGES (183)625.225 625.225
(1 3.256)(13.25e
rs (186)87,823,654 87.823.654
ON iD DEBT (189)3,679,943 3.679.943
766.802.175 766.802.175
TOTAL DEFERRED DEBITS 2.028.848.550 20 000.000 2.057.848.550
TOTAL ASSETS AND rs 24.752.207.805 't.o74.706.AA7 25.826.9'.t4.652
EXHlBlrC
PAC!FICORP
UNCONSOLIDATED BALAI{CE SHEET
JUNE 30, 2O2O
SEE PACIFICOP.P'S 2OI9 FERC FORM NO. I AND Q2.2O2O FERC FORM 3.Q FOR TTIE NOTES TO T}IE FINANCIAL STATEMENTS
E)GIIBIT C
PAGE 2 OF 3
LIABIUTIES AND OI}IER CREDITS
I9IAL
CORPORANON
TI{[,PIJI,EU
FINANCING
I(,IAL
PROFORIIA
CAPITAL
COMMON EAUITY
3.417.945.E96 3.417.945.E96
1 102 063 956 't 'toz (]63 955
:APITAL STI 41 101 061 41 101 06i
4.251.095.923 a.922.82a 4_260.018.75'l
21 6.1 63.099.327 63.O99.327
ACCUMULA .EO OTHER COMPREHENSIVE INCOME (21S}(15 523 506)t15 5?3
8.777.580.535 a_922.424 8.786.503.363
2 397 600 2.s97.600
LONG.TERM DEBT
BONDS (221 8.705.275.000 1.062.875.000 9.768.'t50.000
19.483 19.4E3
1A 599 ?35 1A 599 735
TOTAL LONG-TERM DEBT 8.586_695.248 1.062_875.O00 9.719.570.214
17.466.673.3E3 1.O71.797.424 18.53E.471.211
OTHER NI INCURRENT LIABILIT
24.12'1.061 24.'.t21.61
1 2.053.756 12.O53.756
15 t?1 547 15.421.537fi7 404 557 117 104 457
32.571.255 32.571.259
?'t 141 279 21 111 279
234 ',t72 327 234'.t72327
4E6.889.776 4E6.6E9.r/6
ACCOUNTS I 657.756.0E6 657.756.086
I 36 957 S29 136 957 S29
42.972.465 42.972.465
116.547.760 2.909.059 1 19.456.E1 9
1)B ALt !41 126.W.4E1
40 475 10 175
20.191.617 20.'t91.617
MISCELLAN ,ED LIABILITIES (242 92.660.570 92_660.670
5.926.951 5.928.951
DER]VATIVE 40 14C 31 1 .10.149.31 1
2',t 141 279 21.111 279
1 214 9{l4 455 2.909.059 1.221.E17.925
113.974.294 113.974.294
12.794.721 12.794.721.196 569 363 196,569.363
OTHER REGULATORY LIABILITIES 1 479 557 526 1.879 557 526
162 165 400 162.165 400
2.913.296.743 2.913.296.743
3r)1 37-7 -733 301.377.733
TOTAL DEFERRED CREDITS 5.579.735.780 5.579.735 780
TOTAL LIA ILITIES AND OTHER C;REDITS 24.752.207.805 1.O74.706.E47 25.426.g',t4.692
EXHIBIT C
PACIFICORP
UNCONSOLIDATED BAI.ANCE SHEET
JUNE 30, 2O2O
SEE PACIFICORP'S 2OI9 FERC FORM NO. I AND Q2-2020 FERC FORM 3.Q FOR THE NOTES TO THE FINANCIAL STATEMENTS
EXHIBITC
PAGE 3 OF 3
Exhibit D
TOTAL
CORPORATIOl{
PROPOSED
FINANCING
TOTAL
PROFORIiA
UTILIry OPERATING INCOME
OPERATING 4.967.505.773 4.967.505.773
OPERATION AND MAINTENANCE EXPENSE
2.U8.378.072 2.W.378.072
MAINTENANCE (402)389.360.802 389.360.802
TOTAL OPERATION AND MAINTENANCE EXPENSE 2.737.738.874 2.737.738.874
928,930,1 36 928,930,136
54,098,550 54.098.550
REGULATORY DEBITS(CREDITS) (407.3.407.4)(743.689)
TA/\ES OTHER THAN 200.164.897 200.'t64.897
tNcoME TA)GS (409.1 137.510.269 2.S09.059 't40.419.328
(139.045,681)(139.M5.681)
INVESTMENT TA)( CREDIT ADJUSTMENTS - NET (41 1.4)e.520.148\e.520.1481
DISPOSITION OF ALLOWANCES I 62 62
UTILITY OPERATING INCOME 't.o51.372.627 (2.909.059)1.M7_719.879
OTHER INCOME AND DEDUCTIONS
INCOME FROM MERCHANDISING (41 5-416)(58.010)(58.010)
Q12.8',t7\t212.817l
NONOPERATING RENTAL INCOME (418)198 508 198,508
EOUITY IN EARNING 8.310.174 8.310.174
INTERESTAND DIVIDEND INCOME (419)13.614.325 13.614.325
FOR FUNDS USED DURING 86.774.430 86.774.430
M 4.',134.575 4.13/-.575
GAIN ON DISPOSITI(2j22,558 2.122.558
TOTAL OTHER INCOME 114.883.743 114.883.743
OTHER INCOME DEDUCTIONS
LOSS ON DISPOSITION OF PROPERW (4 204.738 204.738
MISCELLANEOUS 't .330.613 't .330.6't 3
MISCELI.ANEOUS INCOME DEDUCTIONS I
TOTAL OTHER INI 32.327,110 32.327.1'.to
TA)(ES APPLIC TO OTHER INCOME & DEDUCTIONS
TAXES OTHER THAN INCOME TMES (408.2)361.615 361.615
INCOME TAXES (4.800.559){4.800.55S)
PROVISION FOR DEFERRED INCOME TAXES (410.2 &411.2\651.2S't 551_291
1.7U.'.132\(.7U.132\
(2.003.521)(2.003.521)
NET OTHER INCOME AND DEDUCTIONS 84.560.154 84.560.154
INCOME BEFORE INTEREST CHARGES 1.'t35.932.781 {2.909.059)1.132.280.033
INTEREST CHARGES
INTEREST ON LONG-TERM DEBT {42N 381.802,612 20.574.045 402.376.657
DISCOUNTAND EXPENSE 4,134.519 1.000.000 5.134.519
TION OF LOSS ON 582.467 582.467
AMORTIZATION OF PREMIUM ON DEBT- CREDIT 11.026 11.026
1
INTEREST ON DEBT T(109,076 109.076
OTHER INTEREST EXPENSE (431)26.092.873 26.092.873
ALLOW FOR BORROWED 42.942.871 33.405.932 76_348.803
NET INTEREST CHARGES 369.767.6s0 (11.831.88n 357.935.763
INCOME BEFORE EXTRAORDINARY ITEMI 766,165.1 31 8.922.828 774.W.270
EXTRAORDINARY ITEMS. NET OF INCOME TN(
INCOME TA)( ON CUM. EFFECT OF CHG IN ACCT. PRINC
CUMULATIVE EFFECT OF CHANGE IN ACCT. PRINCIPLE
NET INCOME 766.'t65.131 8.922.828 774.W.270
D 161,902 161.902
STOCK 766.003.229 8.922.828 774.182.368
EXHIBIT D
PACIFICORP
UilCONSOLIDATED STATEIIENT OF IIiICOiIE
12 MONTHS ENDED JUNE 30, 2O2O
SEE PACIFICORPS 2OI9 FERC FORM NO. I AND Q2.2O2O FERC FORM 3.Q FOR THE NOTES TO T}IE FINANCI.AL STATEMENTS
EXHtsMD
PAGE 1 OF I
Exhibit E
As fil€d with the Securities snd Exch.nge Commission on S€pt€mber 25' 2020
Registration No.33&.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington' D.C.20549
F'ORM S.3
RDGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
PACIFICORP
(Exact name ofregistrant as specified in its charter)
Oregon
(State or other jurisdiction of incorporation or organization)
Jeffery B. Erb
Corporate Secretary, PaciliCorp and ChiefCorporate Counsel &
Corporate Secretary of Berkshire Hathaway
Energy Company
E25 N.E. Multnomah Street' Suite 2000
Portland, Oregon97232
(s03) 8r3-s372
934246090
(IRS Employer Identification Number)
825 N.E. Multnomah Street
Portland, Oregon91232
888-221-7070
(Address, including zip code, md telephone nmber, including rea code, of registrilt's principal executive offices)
Nikki L. Kobliha
Director, Vice President, Chief Financial OIficer and Treasurer, PacifiCorp
825 N.E. Multnomrh Street' Suite 1900
Portland, Orcgon97232
888-221-7070
(Nme, address, inctuding zip code, md telephone nmber, including aea code, of agent for seruice)
Copy to:
M. Christopher Hall
Kffe Tetman
Perkins Coie LLP
1120 N.W. Couch Street, Tenth Floor
Portland, Oregon 97209
(s03) 727-2000
Approximate date of commencement of proposed sale to the public: From time to time after the ellective date of this registration statement as determined
by market conditions and other factors.
Ifthe only securities being registered on this Form are to be offered pursuant to dividend or interest reinvestnent plans, please check the following box: tr
Ifany ofthe 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,
as amended (the "securitiesAci"), other than securities offered only in connection with dividend or interest reinvestnent plans, check the following box: E
Ifthis Form is filed to register additional secwities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number ofthe earlier effective registration statement for the trlg 6ffe1ing. EI
Ifthis Form is a post-ef;Gctive amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act
registration statement number ofthe earlier effective registration statement for the same offering. E
If this Form is a registation statement pursuant to General Instuction I.D. or a post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. El
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or
additional classes ofsecurities pursuant to Rule 413(b) ofthe Securities Act, check the following box. tr
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an
emerging growth company. See the definitions of"large accelerated filer," "accelerated filer," "smaller reporting company" and "emerging grollth company"
in Rule l2b-2 ofthe Securities Exchange Act of 1934, as amended (the "Exchange Act").
Large accelerated frler E Accelerated filer El
Non-accelqated filer E Smaller reporting company E
Emugiag growth company E
Ifan emerging grolrth company, indicate by check mark ifthe registant has elected not to use the extended tansition period for complying with any new or
revised financial accounting standards provided pursuant to Section 7(a)(2)(B) ofthe Securities Act. tr
CALCULATION OT' REGISTRATION ['EE
(l)An indeterminate amount and number of securities are being registered as may from time to time be offered at indeterminate prices.
In accordance with Rules 456(b) and 457(r) under the Securities Act, the registant is deferring payment ofthe entire registation fee.(2)
Title ofeach class of
securities to be resistercd
Amount to be
registered
Proposed maximum
olfering price per unit
Proposed mrximum
eqgregate offering price
Amount of
registration fee
First Mortgage Bonds (l)(2)
PROSPECTUS
PACIFICORP
FIRST MORTGAGE BONDS
pacifiCorp, an Oregon corporation, may Aom time to time offer First Mortgage Bonds ("securities" or the "bonds") in one or more issuances or
series at prices and on terms to be determined at the time of sale.
We will provide specific terms of the securities, including, as applicable, the amount offered, offering prices, interest rates, maturities and redemption
or repgrchase provisions, in supplements to this prospectus. The supplements may also add, update or change information contained in this prospectus. You
should read this prospectus and any supplements carefirlly before you invest.
We may sell the securities direcfly or through agents designated from time to time or through underwriters or dealers. The supplements to this
prospectus will describe the terms ofany pa.ti.utar ptan ofdistribution, including any underwriting arrargements. The "Plan ofDistribution" section in this
prospectus provides more information on this topic.
This prospectus may not be used to consummate sales ofsecurities unless accompanied by a prospectus supplement relating to the securities offered.
Invrsting in our securities involves risks. See the "Risk f,'actors" section beginning on page 2 of this prospectus for information on certain
matters you should consider before buying our securities.
Neither the Securitics and Exchange Commission nor ony strte securities commission has rpproved or disapproved of these securities or
pessed upon the adequacy or accuracy of this prospectus. Any representttion to the contrary is a criminel offense.
The date ofthis prospectus is September 25,2020.
TABLE OTCONTENTS
ABOUT THIS PROSPECTUS 1
I
a
2
1
J
1
2
ll
ll
ll
t2
FORWARD-LOOKING STATEMENTS
THE COMPANY
RISK FACTORS
USE OF PROCEEDS
DESCRIPTION OF BONDS
BOOK.ENTRY. DELIVERY AND FORM
PLAN OF DISTRIBUTION
WHERE YOU CAN FIND MORE INFORMATION
INCORPORATION BY REFERENCE
LEGAL MATTERS
E)(PERTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we have filed with the U.S. Securities and Exchange Commission (the "SEC") using the
"shelf' registration process. Under this shelfregistration ptocess, we may from time to time sell the securities described in this prospectus in one or more
offerings. This prospectus provides a general description ofthe securities. Each time we sell securities, we will provide a prospectus supplement that will
contain specifiC information about the terms ofthat offering. That prospectus supplement may include or incorporate by reference a detailed and current
discussion of any risk factors and will discuss any special considerations applicable to those securities. The prospectus supplement may also ad4 update or
change informaiion contained in this prospectus. You should read both this prospectus and any prospectus supplement together with additional information
described under "Where You Can Find More Information." If there is any inconsistency between the information in this prospectus and any prospectus
supplement related to offered securities, you should rely on the information contained in that prospectus supplement.
Unless otherwise indicated or unless the context otherwise requires, in this prospectus, tle words "PacifiCorp," "Company," "we," "our" and'lrs"
refer to PacifiCorp, an Oregon corporation, and its subsidiaries.
For more detailed information about the securities, you can read the exhibits to the registration statement. Those exhibits have been either filed with
the registration statement or incorporated by reference to earlier SEC filings listed in the registration statement. See "Where You Can Find More Information'
and "Incorporation by Reference."
You should rely only on the information contained in, or incorporated by reference in, this prospectus and any prospectus supplement. We have not,
and any underwriters, agents or dealers have not, authorized anyone else to provide you with different information. Wc are not, and any underwriters, agents
or dealirs are not, making an offer of these securities in any state where the offer or sale is not permitted. You should not assume that the information
contained in this p.orp".tos and any prospectus supplement is accurate as ofany date other than the date on the Aont ofthe prospectus supplement or that the
information incorporated by reference in ihis prospectus is accurate as of any date other than the date on the font ofthose documents. Our business, financial
condition and results ofoperations may have changed since that date.
FORWARD-LOOKING STATEMENTS
This prospectus, any accompanying prospectus supplement and the additional information refened to under the heading "Where You Can Find More
Information" may contain "forwara-to-oting statements" within the meaning of Section 27A of the Securities Act of 1933, as amended (the "Securities Act")
and Section 2lE ofthe Securities Exchange Act of 1934, as amended (the "Exchange Act'), which are subject to the safe harbor created by the Private
Securities Litigation Reform Act of 1995. All statements other than statements ofhistorical fact are "forwardJooking statements" for purposes ofthese
provisions. Examples include discussions as to our expectations, beliefs, plans, goals, objectives and future financial or other performance or assumptions
conceming matteis discusse4 including through incorporation by reference, in this prospectus. This infomration, by its nature, involves estimates, projections,
forecasts, risks and uncertainties that could cause actual results or outcomes to differ substantially from those expressed in the forward-looking statements
found in this prospectus and the documents incorporated by reference in this prospectus.
Our business is influenced by many factors that are difficult to predict, involve uncertainties that may materially affect actual results and are often beyond
our ability to control. We have identified a number of these factors in our lilings with the SEC, including the Form 10-K, the Forms lO-Q and the Forms 8-K
incorporated by reference in this prospectus, and we refer you to those reports for further information.
Any forwardJooking statement speaks only as ofthe date on which it is made, and we undertake no obligation to update any forward-looking statement
to refleit events or circumstances after the date on which it is made. The forward-looking statements in this prospectus and the documents incorporated by
reference in this prospectus are qualified in their entirety by the preceding cautionary statements.
THECOMPANY
PacifiCorp, an indirect wholly owned subsidiary of Berkhire Hathaway Energy Company C'BHE), is a United States regulated electric utility company
headquartered in Oregon that serves retail electric customers in portions of Utah, Oregon, Wyoming, Washington, Idaho and Califomia. We are principally
engaged in the business ofgenerating, transmitting, distributing and selling electricity. Our combined service territory includes diverse regional economies
across six states. No single segment of the economy dominates the combined service territory, which helps mitigate our exposure to economic fluctuations. In
the eastern portion of the service territory, consisting of Utah Wyoming and southeastem Idaho, the principal industries are manufacturing, mining or
extraction ofnatural resowc,es, agriculture, technology. recreation and govenrment. In the westem portion ofthe service territory, consisting ofOregon.
southem Washington and northern Califomia, the principal industries are agriculture, manufacturing, forest products, food processing, technology,
govemment and primary metals. In addition to retail sales, we buy and sell electricity on the wholesale market with other utilities, energy marketing
companies, financial institutions and other market participants to balance and optimize the economic benefits ofelectricity generation, retail customer loads
and existing wholesale transactions.
Our operations are conducted under numerous franchise agreements, certificates, permits and licenses obtained from federal, state and local authorities.
Several ofthese franchise agreemeDts allow the municipality the right to seek amendment to the franchise agreement at a specified time during the term. We
generally have an exclusive right to serve electric customers within our sewice territories and, in tum, have an obligation to provide electric service to those
customers. In return, the state utility commissions have established rates on a cost-of-service basis, which are designed to allow us an opportunity to recover
our costs of providing services and to eam a reasonable return on our inveshents.
We were incorporated under the laws of the state of Oregon in 1989 and our principal executive offices are located at 825 N.E. Multnomah Street,
Portland, Aegon97232, our telephone number is [phone] and our intemet address is www.pacificorp.com. We deliver electricity to customers in
Utah, Wyomilg and Idaho under the trade name Rocky Mountain Power and to customers in Oregoq Washington and California under the trade name Pacific
Power.
All shares of our common stock are indirectly owned by BHE. We also have shares of preferred stock outstanding that are subject to voting rights in
certain limited circumstances.
For additional information conceming our business and affairs, including our capital requirements, external financing arrangements and pending legal and
regulatory proceedings, including descriptions ofthose laws and regulations to which we are subject, prospective purchasers should refer to the documents
incorporated by reference into this prospectus as described in the sections entitled "Where You Can Find More Information" and "Incorporation by
Reference."
RISKFACTORS
Investing in our securities involves risk. Before purchasing any securities we offer, you should carefirlly consider the risk factors described in our
periodic reports filed with the SEC and the following risk factors related to the securities, as well as the other information contained in this prospectus, any
prospecfus supplement and the information incorporated by reference herein in order to evaluate an investnent in our securities. See "Forward-Looking
Statements", "Where You Can Find More lnformation" and "Incorporation by Reference" in this prospectus. Additional risks and uncertainties that are not yet
identified or that we currently believe are immaterial may also materially harm our business, operating results and financial condition and could result in a loss
on your investnent.
We have not appraised the collalerul subjecl to lhe mortgage securlng our bonds ('Mortgage) and, if there is a default or a foreclosure sale, the value of
the collsteral ma! not be sulyiclent to repay the holders of any bonds.
We have not made any formal appraisal ofthe value of the collateral subject to the Mortgage, which will secure any bonds we may offer along with
other bonds issued under the Mortgage. The value ofthe collateral in the event ofa liquidation or foreclosure will depend on market and economic conditions,
the availability ofbuyers, the timing ofthe sale ofthe collateral and other factors. We cannot assure you that the proceeds from a sale ofall ofthe collateral
would be sufficient to satis$ the iunounts outstanding under our fust mortgage bonds or that such payments would be made in a timely manner. If the
proceeds were not sufficient to repay amounts outstanding under the bonds, then holders ofthe bonds, to the extent not repaid from the proceeds ofthe sale of
the collateral, would only have an unsecured claim against our remaining assets.
)
There is no *isting marhetfor the bonds, and we cannol assurc you thal an active trading ma*etfot the bonds will develop,
We do not intend to apply for listing ofthe bonds on any securities exchange or automated quotation system. There can be no assurance as to the
liquidity ofany market that miy Oevetop for the bonds. Accordingly, the ability ofholders to sell the bonds that they hold or the price at which holders will be
able to se[ the bonds may be limited. Future trading prices of the bonds will depend on many factors, including, among other things, prevailing interest rates,
our operating results and the market for similar securities.
We do not know whether an active trading market will develop for the bonds. To the extent that an active trading market does develop, the price at
which a holder may be able to sell the bonds that iiholds, if at all, may be less than the price paid for them. Consequently, a holder may not be able to
liquidate its inveshent readily, and the bonds may not be readily accepted as collateral for loans.
The terms of the Mortgage ond the supplemenlal indentures do not prohibit us from incurring oddllional indebtedness, which could adversely affect our
financial condition.
The terms of the Mortgage and the supplemental indentures do not prohibit us from incurring indebtedness in addition to the bonds we may issue.
Accordingly, we could ent& tto financings, acquisitions, refinancings, iecapitalizations or other highly leveraged transactions that could significantly
increase our total amoutrt ofoutstandlng indebtedness. The interest pa).ments needed to service this inoeased level ofindebtedness could have a material
adverse effect on our operating resuls. A highly leveraged capital structure could also impair our overall credit quality, making it more difficult for us to
finance our operations, and coluld result in a downgrade in the ratings of our indebtedness, including any bonds we may issue, by credit rating agencies.
USE OF PROCEEDS
Unless otherwise indicated in a prospectus supplement, the net proceeds to be received by us from the issuance and sale ofthe bonds will initially
become part ofour general funds and will be used for capital expenditures or utility asset purchases, to repay all or a portion ofour short- or long-term
borrowings and for general corporate purposes.
DESCRIPTION OF BONDS
General
We may issue first mortgage bonds from time to time under our Mortgage and Deed of Trust, dated as of January 9, 1989, as amended and
supplemented (tire "Mortgage"), *it lr. Bank of New York Mellon Trust Company, N.A. (as successor trustee to JPMorgan Chase Bank, N.A.) (the
..Vtortg"g" Trustee"). fhe fouowing summary is subject to the provisions of and is qualified by reference to the Mortgage, a copy of which is incorporated by
reference as an exhibit to this Registration Statement. Whenever particular provisions or defined terms in the Mortgage are referred to in the following
summary, those provisions or deirned terms are found in the Mortgage. Section and Article references used below are references to provisions of the Mortgage
unless we otherwise note. When we refer to "bonds," we refer to all first mortgage bonds issued under the Mortgage, including any bonds that may be offered
pursuant to this prospectus.
We expect to issue bonds in the form of firlly registered bonds and, except as may be set forth in any prospectus supplement, in denominations of
$2,000 and any integral multiples of $ 1,000 in excesi thereof. The bonds may be transferred without charge, other than for applicable taxes or other
govemmental charges, at the offices of the Mortgage Trustee. See "Book-Entry, Delivery and Form."
Meturity and Interest Payments
The prospectus supplement relating to any bonds will set forth the date or dates on which those bonds will mature, the rate or rates per annum at
which those bonds will bear interest and the times at which any interest will be payable. Those terms, as well as other terms and conditions of the bonds,
including those related to redemption and purchase referred to under "Redemption or Purchase ofBonds" below, will be established by us at the time we issue
the bonds.
3
Redemption or Purchase ofBonds
The prospectus supplement relating to any particular series ofbonds will set forth the redemption or repurchase terms and other specific terms of
those bonds.
Ifwe elect or are required to redeem all or part ofthe bonds, we will provide a notice ofredemption in accordance with the Mortgage at least 30 days
prior to the redemption date unless otherwise provided in a supplemental indenture to the Mortgage. A failure to duly give notice to any bondholder will not
affect the validity ofthe redemption ofany other bond. A notice ofredemption may be subject to the receipt ofthe redemption amount by the Mortgage
Trustee on or before the date fixed for redemption and will be of no effect unless the redemption amount is received. If the redemption amount is held by the
Mortgage Trustee for redemption, on and after the redemption date the bonds subject to redemption will cease to bear interest and will cease to be entitled to
the lien of the Mortgage. (Section 12.02)
We may request that cash deposited under any provisions ofthe Mortgage be applied (with specific exceptions) to the redemption or repurchase of
bonds ofany series. (Section 7.03, Section 12.05 and Section 13.06)
There is no sinking or analogous fund in the Mortgage.
Security and Priority
The bonds will be issued under the Mortgage and secured by a first mortgage lien on certain utilrty property owned Aom time to time by us. Any
bonds issued will be equally and ratably secured with all other bonds issued under the Mortgage.
The Mortgage excepts from its lien, among others, all cash and securities (except as specifically deposited with the Mortgage Trustee in certain
circumstances); equipment, materials or supplies held for sale or other disposition; any fuel and similar consumable materials and supplies; automobiles, other
vehicles, aircraft, boats and vessels; timber, crops, minerals, mineral rights and royalties; receivables, general intangibles, conffacts, leases and operating
agreements (except those specifically pledged); electric energy, gas, water, steam and other products for sale, distribution or other use; natural gas wells and
leases; gas tansportation lines or other property used in the sale ofnatural gas to customers or to a natural gas distribution or pipeline company, up to the
point of connection with any distribution systeml and our interest in the Wyodak Facility. The lien of the Mortgage is also subject to Excepted Encumbrances,
including tax and construction liens, purchase money liens, certain rights ofand obligations to public authorities and others, certain easements, restrictions,
exceptions or reservations related to our property and rights ofway, and other specific exceptions. (Section 1.06) We have reserved the right, without any
consent or other action by holders ofbonds ofthe Ninth Series or any subsequently created series ofbonds, to amend the Mortgage in order to except from the
lien of the Mortgage allowances allocated to steam-electric generating plants owned by us, or in which we have interests, pursuant to Title IV of the Clean Air
Act Amendments of 1990, as now in effect or as hereafter supplemented or amended. (See Section 3.01 of the Thirty-First Supplemental Indenture)
The Mortgage subjects after-acquired property to the mortgage lien, generally subject to the exceptions discussed above. In addition, after-acquired
property may be subject and subordinate to a Class "A" Mortgage, purchase money mortgages and other liens or defects in title. A Class 'A" Mortgage is a
mortgage or similar indenture of a company that is merged into or consolidated with us and designated by us as a Class "A" Moftgage. (Section 1.02)
The Mortgage provides that the Mortgage Trustee shall have a lien on the mortgaged property, prior to the holders of bonds, for the payment of its
reasonable compensation and expenses and for indemnity against certain liabilities. (Section 19.09)
Issuence ofBonds
An unlimited principal amount ofbonds may be issued under the Mortgage. Bonds of any series may be issued from time to time on the basis of
(l) 70% of the cost or fair value of qualified Property Additions after certain adjustments, as detemlined in accordarce with the terms of the
Mortgage;
(2) Class "A" Bonds (which need not bear interest) issued under a Class "A" Mortgage delivered to the Mortgage Trustee;
(3) retirement ofbonds or certain prior lien bonds; and/or
(4) deposits ofcash.
4
With certain exceptions in the case ofclauses (2) and (3) above, the issuance ofbonds is subject to our Adjusted Net Eamings for 12 consecutive
months out ofthe preceding 15 months, before interest expense and income taxes, being at least twice the Annual Interest Requirements on all outstanding
bonds issued under the Mortgage. all outstanding Class "A" Bonds not held by the Mortgage Trustee, all other indebtedness secured by a lien prior to the lien
ofthe Mortgage and all bonds then applied for in pending bond issuance applications under the Mortgage. ln general, interest on variable interest bonds, if
any, is calculated using the rate then in effect. (Section 1.07 and Articles IV through VII)
Property Additions generally include property used in generating, transmitting, transporting, supplying and managing the use ofenergy or fuel in any
form, other than, generally, property excepted from the Mortgage as described above such as fuel, rolling stock, property which is chargeable as an operating
expense, and property used principally for the production or gathering ofnatural gas. (Section 1.04)
Release and Substitution of Property
Property subject to the Mortgage may be released generally on the basis of:
(l) the release ofthat property from a Qualified Lien;
(2) the deposit of cash, outstanding bonds or, to a limited extent, purchase money mortgages;
(3) Property Additions, after making adjustrnents for certain prior lien bonds outstanding against Property Additions; and/or
(4) a waiver ofthe right to issue bonds on the basis ofbond retirements.
Funded Cash, as defined in Section 1.05 ofthe Mortgage, may be withdrawn upon the bases stated in (3) and (4) above. The Mortgage contains
special provisions with respect to certain prior lien bonds deposited and disposition ofmoneys received in respect ofdeposited prior lien bonds. In addition,
the Mortgage provides an alternative provision (Section 13.04) for release ofproperty that does not cottstitute Funded hoperty (generally, "Funded Property"
is property that was used as the basis for bond issuances or other property releases). This altemative provision does not require any ofthe basis for release
described above and instead requires, among other conditions, the amount ofoutstanding bonds to not exceed 707o ofthe fair value ofthe then Funded
Property atthetime ofthe release. (Sections 1.05,7.02,9.05, 10.01 through 10.04 and 13.03 through 13.09)
Merger or Consolidation
We may consolidate or merge with any company carrying on a similar business as us, or convey, transfer or lease all or substantially all of our
property to another company, generally provided that the action fully preserves and does not impair the lien of the Mortgage or the rights of the Mortgage
lrustee and bondholders. (Section 18.01) In those circumstances, the Mortgage will not be required to become a lien upon any ofthe properties owned or
thereafter acquired by the successor company. (Section 18.03) The Mortgage further provides that in the event ofthe merger or consolidation ofanother
company with or into us or the conveyance or transfer to us by another company ofall or substantially all ofthat company's Foperty that is ofthe same
character as Property Additions, as defined in the Mortgage, an existing mortgage constituting a frst lien on operating properties ofthat other company may
be designated by us as a Class "A" Mortgage. (Section I 1.06) Bonds thereafter issued pursuant to the additional mortgage would be Class "A" Bonds and
could provide the basis for the issuance ofbonds under the Mortgage.
Certain Covenants
The Mortgage contains a number ofcovenants by us for the benefit ofthe holders ofthe bonds, including provisions requiring us to maintain the
mortgaged property as an operating system or systems capable ofengaging in all or any ofthe generating, transmission, distribution or other utility businesses
described in the Mortgage. (Article IX)
Dividend Restrictions
The Mortgage provides that we may not declare or pay dividends (other than dividends payable solely in shares ofour common stock) on any shares
ofour common stock if, after giving effect to the declaration or payment, we would not be able to pay our debts as they become due in the usual course of
business. (Section 9.07)
Foreign Currency Denominated Bonds
The Mortgage authorizes the issuance of bonds denominated in foreign currencies, provided that we deposit with the Mortgage Trustee a currency
exchange agreement with an entity having, at the time ofthe deposit, a financial rating at least as high as our financial rating tha! in the opinion ofan
independent accountant, appraiser or other expert, gives us at least as much protection against currency exchange fluctuation as is usually obtained by
similarly situated borrowers. (Section 2.03) We believe that this type of currency exchange agreement will provide effective protection against crurency
exchange fluctuations. However, ifthe other party to the exchange agreement defaults and the foreign currency is valued higher at the date ofmaturity than at
the date ofissuance ofthe relevant bonds, holders ofthose bonds would have a claim on our assets that is greater than the claim to which holders ofdollar-
denominated bonds issued at the same time would be entitled.
The Mortgage Trustee
The Bank ofNew York Mellon Trust Company, N.A. or its affiliates may act as a lender, tustee or agent under othor agreements and indentures
involving us and our affiliates.
Modilication
The rights ofbondholders may be modified with the consent ofholders ofat least 60% ofthe principal amount ofthe bonds outstanding, or, ifnot all
series ofbonds are adversely affecteq the consent ofthe holders ofat least 60% ofthe principal amount ofthe outstanding bonds adversely affected. In
general, no modiflcation of the terms ofpaymetrt of principal, premium, if any, or interest and no modification permitting the creation of a lien ranking prior
to or on a parity with the lien ofthe Mortgage or reducing the perc€ntage required for modification is effective against any bondholder without the consent of
the holder. (Section 21.07)
Unless we are in default in the payment of the interest on any bonds then Outstanding under the Mortgage or there is a Default under the Mortgage,
the Mortgage Trustee generally is required to vote Class "A" Bonds held by it with respect to any amendment of the applicable Class "A" Mortgage
proportionately with the vote ofthe holders ofall Class "A" Bonds then actually voting. (Section I 1.03)
Defaults and Notice Thercof
"Defaults" are defined in the Mortgage as:
(1) default in palment of principal;
(2) default for 60 days in payment ofinterest or an installment ofany fund required to be applied to the purchase or redemption ofany bonds;
(3) default in payment ofprincipal or interest with respect to certain prior lien bonds beyond any grace period;
(4) certain events in bankruptcy, insolvency or reorgadzation;
(5) default in other covenants for 90 days after notice; or
(6) the existence ofany default under a Class 'A" Mortgage that pennits the declaration ofthe principal ofall ttre bonds secured by the Class "A"
Mortgage and the interest accrued thereupon due and payable. (Section 15.01)
An effective default under any Class 'A" Mortgage or under the Mortgage will result in an effective default under all those mortgages. The Mortgage
Trustee may withhold notice of default (except in payment of principal, interest or funds for retirement of bonds) if it determines that it is not detrimental to
the interests ofthe bondholders. (Section 15.02)
6
The Mortgage Trustee or the holders of 25% of the principal amount of the bonds outstanding may declare the principal and interest d* T9 payable on
Def4ult, b-utl majority may annul the declaration if the Default has been cured. (Section 15.03) No holder of bonds may enforce the lien of the Mortgage
unle ss the Mortgage Trustee is given written notice of a Default and the Mortgage Trustee fails to act after the holders of 25% of the principal amount of the
bonds outstanding hure r.qr"rtid in writing the Mortgage Trustee to act, offered it reasonable opportunity to act and offered an indemnity satisfactory to it
against the costs,ixpenses and liabilities thit may be inJurred when enforcing the lien. (Section 15.16) The holders ofa majority ofthe bonds may direct the
tiire, method and place of conducting *y p.or.iding, for any remedy available to the Mortgage Trustee or exercising any trust or power conferred on the
Mortgage Trustee, although the Morigagi trustee has the right to decline to follow the direction if it involves personal liability or would be unjustifiably
p.quiiiat to nonassentin! bondholdeis,-among other reasons. (Section 15.07) The Mortgage Trustee is not required to risk its funds or incur personal liability
ifthere is reasonable ground for believing that repayment is not reasonably assured. (Section 19.08)
Defeasence
Under the terms ofthe Mortgage, we will be discharged from any and all obligations under the Mortgage in respect of the bonds of any series if we
deposit with the Mortgage Trustee, in trust, moneys or goverilnent obligations, in an amount sufficient to pay all the principal of, premium (if any) and
interest on, the bonds ofthose series or portions thereo{ on the redemption date or maturity date thereoi as the case may be. The Mortgage Trustee need not
accept the deposit unless it is accompanied by an opinion of counsel to the effect that (a) we have received from, or there has been published by, the Internal
Revinue Service a ruling or, (b) since the daie ofthe Mortgage, there has been a change in applicable federal income tax law, in either case to the effect that,
and based thereon the opinion ofcounsel shall confirm thai, the holders ofthe bonds or the right ofpayment ofinterest thereon (as the case may be) will not
recognize income, gain or loss for federal income tax purposes as a result ofthe deposit, and/or ensuing 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 the deposit and/or discharge had not occurred. (Section 20.02)
Upon the deposit, our obligation to pay the principal of (and premium, if any) and interest on those bonds shall cease, terminate and be completely
dischargedand the holders ofsuch bonds shall thereafter be entitled to receive payment solely from the funds deposited. (Section 20.02)
BOOK-ENTRY, DELIVERY AND FORM
Unless we indicate differenfly in a prospectus supplement, the bonds initially will be issued in book-entry form and represented by one or more
global bonds without interest *rponr. fne gtotA bonds will be deposited with, or on behalf o{ The Depository Trust Company, New York, New.York, as
iepositary, or DTC, and registered in the name of Cede & Co., the nominee of DTC. Unless and until it is exchanged for individual certificates evidencing
bonds under the limited circumstances described below, a global bond may not be transferred except as a whole by the depositary to its nominee or by the
nominee to the depositary, or by the depositary or its nominee to a successor depositary or to a nominee of the successor depositary.
DTC has advised us thal it is:
. a limited-purpose trust company organized under the New York Banking Law;
' a "banking organiTation" within the meaning of the New York Banking Law;
. a member of the Federal Reserve System;
. a "clearing corporation" within the meaning of the New York Uniform Commercial Code; and
. a"clearingagency"registeredpursuanttotheprovisionsofSection lTAoftheExchangeAct.
7
DTC holds securities that its participants deposit with DTC. DTC also facilitates the settlement among its participants ofsecurities transactions, such
as transfers and pledges, in deposited securities through electronic computerized book-entry changes in participanti accounts, thereby eliminating the needfor physical movement ofsecurities certificates. "Direct participants" in DTC include securities brokers and dialers, including underwriters, banti, tustcompanies, clearing corporations and other organizations. DTC is a wholly-owned subsidiary of The Depository Trust & Ctearing Corporation, or DTCC.DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of-whicir are registered clearingagencies. DTCC is owned by the users of its regulated subsidiaries. Access to the DTC system is also availabie to others, which we sometimes=refer to asindirect participants that clear tfuough or maintain a custodial relationship with a direct participant, either directly or indirectly. The rules applicable to DTC
and its participants are on file with the SEC.
Purchases of securities under the DTC system must be made by or through direct participants, which will receive a credit for the securities on DTC'srecords. The ownership interest ofthe actual purchaser ofa security, which we sometimes refer to as a beneficial owner, is in tum recorded on the direct andindirect participants' records. Beneficial owners ofsecurities will not receive written confirmation from DTC oftheir purchases. However, beneficial ownersare expected to receive written confirmations providing details oftheir transactions, as well as periodic statements oftheir holdings, from the direct or indirectparticipants through which they purchased securities. Transfers ofownership interests in globai securities are to be accomplished-by entries made on the booksofparticipants acting on behalfofbeneficial owners. Beneficial owners will not receive certificates representing their ownership inierests in the global
securities, except under the limited circumstances described below.
To facilitate subsequent transfers, all global bonds deposited by direct participants with DTC will be registered in the name ofDTC's partnershipnominee, Cede & Co., or such other name as may be requested by an authorized representative of DTC. The deposit of global bonds with DTC and theirregistation in the name of Cede & Co. or such other nominee will not change the beneficial ownership ofthe giobal UonAs. OfC ms no knowledge oftheactual beneficial owners ofthe global bonds. DTC's records reflect only the identity ofthe direct participants to whose accounts the global bonds-are credited,which may or may not be the beneficial owners. The participants are responsible for keeping account oftheir holdings on behalfoftheir customers.
So long as the bonds are in book-entry form, you will receive payments and may transfer the bonds only through the facilities ofthe depositary andits direct and indirect participants. We will maintain an office or agency in the location specified in the prospectus supplement for the applicable bonds, wherenotices and demands in respect ofthe bonds and the Mortgage may be delivered to us and where certificated securitiejmay be sunenderid for payment,
registration of transfer or exchange.
Conveyance ofnotices and other communications by DTC to direct participants, by direct participants to indirect participants and by direct
participants and indirect participants to beneficial owners will be governed by arrangements among them,iubject to any legal requirements in effect from timeto time.
Redemption notices will be sent to DTC. If less than all of the bonds of a particular series are being redeemed, DTC's practice is to determine by lotthe amount ofthe interest ofeach direct participant in the bonds of such series to be redeemed.
Neither DTC nor Cede & Co. (or such other DTC nominee) will consent or vote with respect to the bonds. Under its usual procedures, DTC will mailan omnibu5 p1s1y to us as soon as possible after the record date. The omnibus proxy assigns the consenting or voting rights ofcede A Co. to those directparticipants to whose accounts the bonds ofsuch series are credited on the record date, identified in a listing attached to the omnibus proxy.
So long as bonds are in book-entry form, we will make payments on those bonds to the depositary or its nominee, as the registered owner of such
bonds' by wire hansfer of immediately available funds. If bonds are issued in definitive certificated form under the limited circumstances described below, wewill have the option of making payments by check mailed to the addresses of the persons entitled to payment or by wire transfer to bank accormts in theUnited States designated in writing to the applicable trustee or other designated party at least 15 dayi before the applicable payment date by the persons
entitled to payment, unless a shorter period is satisfactory to the applicable tustee or other designaied party.
Redemption proceeds on the bonds will be made to Cede & Co., or such other nominee as may be requested by an authorized representative of DTC.
DTC,s practice is to credit direct participants' accounts upon DTC's receipt of funds and corresponding detail information from us on the payment date in
accordance with their respective holdinis shown on DTCrecords. eayments by participants to beneficial owners will be govemed by standing instructions and
customary practices, as ii the case with-securities held for the accouni of customirs in bearer form or registered in "sfieet name." Those payments will be the
responsltility of participants and not of DTC or us, subject to any statutory or regulatory requirements in effect from time to time. Payment of redemption
proceeds to ieae a co., or such other nominee as mayb. ,.qu"it d by an authorized representative ofDTC, is our responsibility, disbursement ofpayments
io direct participants is the responsibility ofDTC, anddisbursement oipayments to the beneficial owners is the responsibility ofdirect and indirect
participants.
Neither we, the Mortgage Trusteo nor any agent of ours or of the Mortgage Trustee has or will have any responsibility or liability for:
(l) any aspect ofDTC's records or any participant's or indirect participanfs records relating to, or payments made on account of, beneficial
ownership interesti ln ihe bonds or for maintaining, iupervising or reviewing uny oiDTC's records or any participant's or indirect participant's records
relating to the beneficial ownership interests in the bonds; or
(2) any other matter relating to the actions and practices ofDTC or any ofits participants or indilect participants.
Except under the limited circumstances described below, purchasers ofbonds will not be entitled to have such bonds registered in their names and
will not receivi physical delivery ofsuch bonds. Accordingly, each beneficial owner must rely on the procedures ofDTC and its participants to exercise any
rights under the bonds and the Mortgage.
The laws of some jurisdictions may require that some purchasers of securities take physical delivery of securities in definitive form. Those laws may
impair the ability to transfer or pledge beneficial interests in the bonds.
DTC may discontinue providing its services as securities depositary with respect to the bonds at any time by giving reasonable notice to us Under
such circumstances, in the .r.ri thut u siccessor depositary is not obiained, certificates representing the bonds are required to be printed and delivered'
As noted above, beneficial owners of a particular series ofbonds generally will not receive certificates representing their ownership interests in those
bonds. However, if
. DTC notifies us that it is unwilling or unable to continue as a depositary for the global security or securities representing such series of
bonds or ifDTC ceases to be a clJaring agency registered under the Exchange Act at a time when it is required to be registered and a
successor depositary is not appointed *itiio qb diys ofthe notification to uJ or ofour becoming aware ofDTC's ceasing to be so registered,
as the case maY be;
.
Ir.
determine, in our sole discretion and subject to DTC's procedures, not to have such bonds represented by one or more global securities;
. an Event ofDefault has occurred and is continuirg with respect to such series ofbonds,
we will prepare and deliver certificates for such bonds in exchange for beneficial interests in the global bonds. Any beneficial interest in a global bond that is
.*ch*giabl. under the circumstances described in the precedinfsentence will be exchangeable for bonds in definitive certificated form registered in the
names ilat the depositary directs. It is expected that these directiins will be based upon directions received by the depositary from its participants with respect
to ownership ofbeneficial interests in the global bonds
We have obtained the information in this section and elsewhere in this prospectus conceming DTC and DTC's book-entry system from sources that are
believed to be reliable, but we take no responsibility for the accuracy ofthis information.
PLAN OF'DISTRIBUTION
We may sell the securities through undervlriters, dealers or agents, or directly to one or more purchasers. The prospectus supplement with respect to
the securities being offered will set fortr lhe specific terms ofthe offering ofthose securities, including the name or names of any underwriters, dealers or
agents, the purchale price ofthose securities and the proceeds to us from the sale, any underwriting discounts, agency fees and other items- constituting
,ria.r*.it i., o. ug"ns' compensation, any initial pullic offering price and any discounts or concessions allowed or reallowed or paid to dealers.
9
If we use underwriters to sell securities, we will enter into an underwriting agreement with the undervvriters. Those securities will be acquired by the
underwriters for their own account and may be resold from time to time in one or more tansactions, at a lxed public offering price, at market prices
prevailing at the time ofsale, at prices related to such prevailing market prices or at negotiated prices. The underwriter or underwriters with respect to a
particular underwritten offering ofsecurities will be named in the prosp€ctus supplement relating to that offering and, ifan underwriting syndicate is used, the
managing underwriter or underwriters will be set forth on the cover page ofthe prospectus supplement. Any underwriting compensation paid by us to the
underu,riters or agents in connection with an offering ofsecurities, and any discounts, concessions or commissions allowed by underwriters to dealers, will be
set forth in the applicable prospectus supplement to the extent required by applicable law. Unless otherwise set forth in the prospectus supplement, the
obligations ofthe underwriters to purchase the securities will be subject to specific conditions, and the underwriters will be obligated to purchase all ofthe
offered securities ifany are purchased.
Ifa dealer is used in the sale ofany securities, we will sell those securities to the dealer, as principal. The dealer may then resell the securities to thepublic at varying prices to be determined by the dealer at the time ofresale. The name ofany dealer involved in a particular offering ofsecurities and any
discounts or concessions allowed or reallowed or paid to the dealer will be set forth in the prospectus supplement relating to that offering.
The securities may be sold directly by us or through agents designated by us from time to time. We will describe the terms of any direct sales in aprospectus supplement. Any agent, who may be deemed to be an underwriter as that term is defined in the Securities Act, involved in the offer or sale of any
of the securities will be named and any commissions payable by us to tle agent will be set forth, in the prospectus supplement relating to that offer or sale.
Unless otherwise indicated in the prospectus supplement, any agent will be acting on a reasonable best efforts basis for the period ofits appoinhnent.
In connection with a particular underwriuen offering of securities, and in compliance with applicable law, the underwriters may engage in
hansactions that stabilize, maintain or otherwise affect the prices ofthe classes or series ofsecurities offered, including stabilizing transactions and syndicate
covering transactions. These activities may stabilize, maintain or otherwise afilect the market price of the securities, which may be higher than the price that
might otherwise prevail in the op€n mark€t, and if commenced, may be discontinued at any time. A description of these activities, if any, will be set forth in
the prospectus supplement relating to that offering.
Underwriters, dealers or agents and their associates may be customers of, engage in transactions with or perform services for us and our affiIiates in
the ordinary course ofbusiness.
We will indicate in a prospectus supplement the extent to which we anticipate that a secondary market for the securities will be available. Unless weinform you otherwise in a prospectus supplement, we do not intend to apply for the listing ofany securities on a national securities exchange. Ifthe secwities
are sold to or through underwriters, the underwriters may make a market in such securities, as permitted by applicable laws and regulations. No underwriter
would be obligated, however, to make a market in the securities, and any market-making could be discontinued at any time at the sole discretion of the
tmderwriters. Accordingly, we cannot assure you as to the liquidity of, or trading makets for, the securities.
Underwriters, dealers and agents participating in the distribution of the securities may be deemed to be 'trnderwriters" within the meaning o{ and any
discounts and commissions received by them and any profit realized by them on resale ofthose securities may be deemed to be underwriting discounts and
commissions under, the Securities Act. Subject to some conditions, we may agree to indemni$ the several underwriters, dealers or agents and their controlling
persons against specific civil liabilities, including liabilities under the Securities Act, or to contribute to payments that person may be required to make in
respect thereof.
l0
During such time as we may be engaged in a disEibution of the securities covered by this prospectus we are required to comply with Regulation M
promulgated gider the Exchange Ait. Wifti..tui, .xceptions, Regulation M precludes us, any affiliated purchasers and any broker'dealer or other. person
who participates in such distrib:uting from bidding for oipurchasing, or atternpting to induce any person to bid for or purchasq any security which is the
subject oftie disfiibution until the intire distribuiion is complete. Regulation M also resricts bids or purchases made in order to stabilize the price ofa
r"cu.ity in connection with the distribution ofthat security. All ofthe foregoing may affect the marketability ofour securities.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of a registation statement filed with the SEC. The registation statem€nt contains additional infomration and exhibits not
included in thii prospectus and refers to documents that are fled as exhibits to other SEC filings. We file annual, quarterly and current reports 11d other
information with the SEC. Our SEC filings are available to the public over the Intemet at the SEC's web site at http://www.sec.gov. Our SE€ filings cm also
be accessed through our website at www.-pacificorp.com. The infonnation found on our website, other than any of our SEC filings that are incorporated by
reference herein, is not part ofthis prospectus.
INCORPORATION BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file with it, which means that we can disclose important information to you by
referring you to those documents. fni informition incorporated by reference is considered to be part ofthis prospectus and later information that we file with
Oe Sgiwilt automatically update or supersede this information. We incorporate by reference the documents listed below and any future filings made with the
SEC under Sections t:(a), fj(c), tn or iS(q oftne Exchange Act (but only to the extcnt the information therein is filed and not frrmished), until all ofthe
securities covered by this prospectus have been sold:
. Annual Reoort on Form I 0-K for the vear ended December 3 l. 20 I 9:
. Quartcrly Reports on Form 10Q for the quarters ended March 3 1. 2020 and June 30. 2020; and
. Current Reoort on l"orm 8-K fi1ed with the SEC on Aoril 8. 2020.
Upon written or oral request, we will deliver a copy ofthese filings (other than exhibits to such documents rmless such exhibits are specifically
incorporated by reference therein), at no cost to you, by nriting or telephoning us at the following address:
PacifiCorp
825 N.E. Multnomah Sreet Suite 1900
Portlan4 Oregon97232
Telephone: (88E) 22 l-7070
Attention: Treasury
LEGALMATTERS
The validity ofthe securities will be passed upon for us by Perkins Coie LLP, Portland, Oregon. Ifthe securities are being distributed in m
underwritten offering, certain legal matters will be passed upon for the underwriters by cormsel identified in the related prospectus supplement.
ll
EXPERTS
The consolidated financial statements incorporatcd in this prospectus by reference fiom PacifiCorp's Annual Reoort on Form l0-K for the vear endedDecember3l.2019havebeenauditedbyDeloitte&ToucheLLP,mindependentregisoeredpublicaccountingfirm,asstatedintheirrepo4whichis
incorporated herein by reference. Such consolidated finmcial stat€ments have been so incorporated in relianccupon the rcport ofsuch fnn given upon theirauthority as experts in accounting and auditing.
With respect to the unaudited intcrim consolidated financial information for the periods ended March 31, 2020 and 2019 and June 30, 2020 ,Irld20l9,which is incorporated herein by reference, Deloitte & Touche LIB m independent registered public accounting firm, havc apptied limited procedrnes in
accordance with the standards ofthe Public Company Accounting Ovenight Bord (Utrited States) for a revicw of such infonnation. Howwer, as stated intheir reports included in PacifiCorp's Quarterly Repofis on Form 10-Q for the quaters ended March 3 l. 2020 and June 30. 2020 md incorporated by
reference herein, they did not audit atrd they do not express an opinion on that ioterim consolidated financial inOrmatioa. eccordingty, the degree oirelimceon their reports on zuch information should be restricted in light of the limited nature of the review procedures applied" Deloitte & iouche LLF are not zubject
to the liability provisions ofSection I I ofthe Securities Act for their reports on the unaudited interim consolidated financial information because those reportsare not "reports" or a '!art" of the Registration Statcment prepared or c€rtifed by an accountmt within thc meaning of Scc.tions 7 and I I of the Securities Act.
t2
PART II
INFORMATION NOT REQTIIREI' IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Costs and expenses payable by us in connection with the issuance and distribution ofthe securities being registered are set forth as follows:
Registation fee
Legal fees and expenses
Accounting fees and exPenses
Trustee fees
Rating agency fees
Indenture recording fees
Printing and delivery ofregistation statement, prospectus, certificotes, etc.
Miscellaneous expenses
Total
$*
*+
l*
tt
$
by this prospectus.
** To be provided in an amendment or filing, or exhibit thereto, filed with the SEC, or reflected in the applicable prospectus supplement. These fees are
calculated basid on the securities offered and the number ofissuances and accordingly cannot be estimated at this time.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFT'ICERS.
The Company is incorporated under the laws of the State of Oregon and is subject to the Oregon Business Corporation Act (the "oBCA"). The
company,s Third itesiated articles of Incorporation ("Restated Articles'j, and Bylaws, as amended ("Bylaws"), require the company to rndemnifr directors
and officers to the fullest extent not prohibited by law. The right to and amount oi indemnification ultimately will be subject to determination by a court that
indemnification in the circumstances presented ii consistent rith public policy considerations and other provisions oflaw. It is likely, however, that the
Restated Articles would require indemnification at least to the extint ttrai indemnification is authorized by the oBCA. The effect of the oBCA is summarized
as follows:
(a) The OBCA permits the Company to grant a right ofindemnification in respect ofany pending, threatened or completed action, suit or
proceeding other than an action by or in the rigtrt oftre Co.furry, against reasonable expens€s (including attorneys' fees), judgments, penaltie-s, fines and
'amo,nts piid in settlement actually incuned piovided the poron *i..-"d acted rn good faith and in a manner the person reasonably believed to be in or not
opposed io the best interests ofthe Company,'and, with respect to any criminal action or proceedmg, had-no reasonable cause to believe the conduct was
unlawful. Indemnification is not permitted in connection with a proceeding in which a person is adjudged liable to the company or the person.is adjudged
liable on the basis that personal benefit was improped received unless indemnification is permitted by a court ulon a finding that the person is fairly and
reasonably entitled to indemnification in vlew ofatt oithe relevant circumstances. The termination ofa proceeding byjudgment, order, settlement, conviction
or plea ofiolo contendere or its equivalent is not, ofitselt determinative that the person did not meet the prescribed standard ofconduct.
O) The OBCA permits the Company to gant a right of indemnification in respect of any proceeding by or in the right of the Company against the
..*onubl. "*p.nses
(includinj attomeys' fees) incuieo, ifthi person concerned acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the beit interesis of the 'Company, except that no indemnification may be granted if that person is adjudged to be liable to the Company unless
indernnification is permitted by u.ou.t upo, finiing tlrat the person is fairly and reasonably entitled to indemnification in view ofall ofthe relevant
circumstances.
* In accordance with Rules 456(b) and457(r) under the Securities Act, the regisfant is deferring payment ofthe registration fee for the securities offered
II-1
(c) Under the OBCA, the Company may not indemnifu a person in respect of a proceeding described in (a) or (b) above unless one of the
following determines that indemnification is permissible because the person has met the prescribed standard of conduct:
(l) the Board of Directors of the Company (the "Board"), by majority vote of a quorum consisting of directors not at the time parties to the
proceeding;
(2) ifaquorumofdirectorsnotpartiestotheproceedingcannotbeobtained,byamajorityvoteofacommitteeoftwoormoredirectorsnotatthe
time parties to the proceeding;
(3) by special legal counsel selected by the Board or the committee thereot as described in (1) and (2) above;
(4) if special legal counsel cannot be selected as described in (3) above, then by special legal counsel selected by majority vote of the full Board,
including directors who are parties to the proceeding; or
(5) by the shareholders.
Authorization ofthe indemnification and evaluation as to the reasonableDess ofexpenses are to be detennined as specifred itr atry one of(l) through (5) above,
except that ifthe detennination ofthat indemnification's permissibility is made by special legal sorrnsel, then authorization ofindemnification and evaluation
as to the reasonableness ofthose exp€nses is to be made by those entitled to select special legal counsel. Indemnification can also be ordered by a court ifthe
court determines that indemnification is fair in view of all ofthe relevant circrrmstances. Notwithstanding the foregoing, every person who has been wholly
successflrl, on the merits or otherwise, in defense ofa proceeding described in (a) or (b) above is entitled to be indemnified as a matter ofright against
reasonable expenses incurred in connection with the proceeding.
(d) Under the OBCA, the Company may pay for or reimburse the reasonable expenses incurred in defending a proceeding in advance of the final
disposition thereofifthe director or officer receiving the advance fumishes (i) a written affirrnation ofthe director's or officer's good faith beliefthat he or she
has met the prescribed standard ofconduct and (ii) a written undertaking to repay the advance ifit is ultimately determined that that person did not meet the
standard ofconduct.
The rights ofindemnification described above are not exclusive ofany other rights ofindemnification to which officers or directors may be entitled
under any agreemert, vote ofshareholders, action ofdirectors or otherwise. Resolutions adopted by the Board require the Company to indemnifr directors and
officers ofthe Company to the trllest extent permitted by law and are intended to create an obligation to indemnify to the tillest extent a court may find to be
consistent with public policy considerations.
In addition, under the form ofunderwriting agreement that the Company expects to enter into in connection with any issuance ofthe securities, in
certain circumstances, the underwriters will agree to indemni$ the Company against certain liabilities, including liabilities under the Securities Act.
It-z
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
EXIIIBIT INDEX
Exhibit No.
l.l *
Description
Form of First Mortgage Bond Underwriting Agreement.
4l Mortsaee ard Deed of Trust dated as of Januarv 9. 1989. bet\^'een PacifiCorp and The Bank of New York Mellon Trust Cornpanv. N.A.- as
successor Trustee. incorporated bv reference to Exhibit 4-8. Form 8-B. File No. 1-5 I 52. as supplemented and modified bv 3 I
Supplemental lndentures. each incomoraled bv reference.
Exhibit No.Filc Tlpe Pcriod or File Dete File Number
(4Xb)(")
(aXa)(d
(4xa)(u)
(4Xa)(u)
(aXa)(d
(aXa)(d
(aXald
(4xa)(")
4G)
4Ib)
4&)
4G)
41b)
99(a)
4t
99
!
!
4.2
t
4.1
4.1
4.1
4.1
4.1
4.1
4.1
4.1
4t
4.1
4.1
SE
8-K
8-K
8-K
10-Q
l0-Q
8-K
l0-Q
l0-Q
l0-K
10-K
10-K
l0-K
8-K
l0-Q
8-K
8-K
8-K
8-K
8-K
8-K
8-K
8-K
8-K
8-K
8-K
8-K
8-K
8-K
8-K
8-K
November2, t989
January 9, 1990
September 11, t99l
lannwy 7,1992
Quarter ended March 31, 1992
Quarter ended September 30, 1992
April I, 1993
Quarter cnded September 30, 1993
Ouarter ended June 30. 1994
Year ended December 3 l. 1 994
Year ended December 3 1. 1995
Year ended Decernber 3I. I996
Year ended December 3 1. 1998
November21.2001
Ouarter ended.lune 30. 2003
September 8. 2003
Aueust 24.2004
June 13.2005
Auqust 14.2006
March 14.2007
October 3. 2007
.lulv 17. 2008
Januan, 8. 2009
Mav 12. 201 I
Januan' 6. 2012
June 6. 2013
March 13.2014
June 19.2015
Juh, 13.2018
March l.20l9
April 8.2020
33-3 I 86 I
l-5 152
t-5152
t-5152
1-5152
l-5 152
l-5 152
t-5152
l-5152
t-5152
l-5 I 52
l-5I52
l-5152
1-5 I 52
1-5152
1-5152
1-5 I 52
t-5152
1-5 I 52
1-5152
t-5I52
1-5 I 52
l-5 l 52
l-5 152
l-5I52
t-5152
1-5152
t-5t52
l-5 I 52
l-5152
t-5 I 52
II.3
4.2*Form of Additional Bond.
Opinion of Perkins Coie LLP.
Awareness Letter of Deloitte & Touche LLP.
Consent of Deloitte & Touche LLP.
Consent of Perkins Coie LLP (included in Exhibit 5. I ).
Porver of Altomev (rncluded on sie.nature oaqe hereto).
Statement of Elieibilltv under the Trust Indenture Act of 1939. as amended. of The Bank of New York Mellon Trust Companv. N.A.. as
Trustee. under the Morteaee and Deed ofTrust. dated as ofJanuarv 9. 1989. between the Comoanv and The Bank ofNew York Mellon
Trust Companv. N.A.
5l
. To be filed, ifneccssary, as an cxhibit to ,n amcndm€nt hereto or as an oxhibit to , docment to be incorporated by referene hercin.
(a) Not available electonically on thc SEC wcbsitc es it was filed in papcr previous to thc cleclronic system crrendy in plece.
ITEM 17. UNI'ERTAKINGS,
The undersigned registrant hereby undertakes:
(l) To file, during any period in which offers or sales are being made, a post-effective amendment to this registation statement:
(ii) To include any prospoctus required by Section l0(a)(3) ofthe Securities Act;
(iii) To reflect in the prospectus any facts or ev€nts arising after the effective date ofthe registation statement (or the most recent post-
effective amendurent thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in
the registration statement. Notwithstanding the foregoing, any increase or decrease in volume ofsecurities offered (ifthe total
dollar value ofsecurities offered would not exceed that which was registered) and any deviation from the low or high end ofthe
estimated maximum ofrering range may be reflected in the form ofprosp€ctus filed with the SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth
in the "Calculation ofRegistation Fee" table in the effective registration statement; and
(iv) To include any material information with respect to the plan ofdishibution not previously disclosed in the regisfration statement or
any material change to such information in the registration statement;
pro,rided, however, that paragraphs (aXlXi), (a)(lXii) and (aXlXiii) do not apply ifthe information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registant pursuant to section 13 or section l5(d) ofthe
Exchange Act that are incorporated by reference in the registration statement, or is contained in a form ofprospectus filed pursuant to Rule 424(b) that is part
of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Ac! each such post-effective amendment shall be deemed to be a new
registation statement relating to the securities offered therein, and the offcring ofsuch securities at that time shall be deemed to be the initial bona
fide ofrering thereof
(3) To remove from registation by means of a post-effective amendment any of the securities being registered which remain unsold at the termination
ofthe offering.
il4
t5.l
23.1
23.2
24 1
25.1
(4) That, for the purpose of determining liability under the Securities Act to any purchaser:
(B) Each prospectus filed by the registrant pursuant to Rule 42a@)(3) shall be deemed to be part ofthe registration statement as ofthe
date the filed prospectus was deemed part of and included in the registration statement; and
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (bxs), or (b)(7) as part of a registration statement in reliance on
Rule 4308 relating to an offering made pursuant to Rule 415(a)(l)(i), (vii), or (x) for the purpose ofproviding the information
required by section l0(a) ofthe Securities Act shall be deemed to be part ofand included in the registation statement as ofthe
earlier ofthe date such form ofprospectus is first used after effectiveness or the date ofthe first contract ofsale ofsecurities in the
offering described in the prospectus. As provided in Rule 430B, for liability purposes ofthe issuer and any person that is at that
date an underwriter, such date shall be deemed to be a new effective date ofthe registration statement relating to the securities in
the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof Provided, however, that no statement made in a registation statement or prospectus that is part of
the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement
or prospectus that is part ofthe registration statement will, as to a purchaser with a time ofcontact ofsale prior to such effective
date, supersede or modi$ any statement that was made in the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability ofthe registrant under the Securities Act to any pwchaser in the initial disribution ofthe securities:
The undersigned registrant undertakes that in a primary offering ofsecurities ofthe mdersigned registrant pursuant to this registation statement,
regardless ofthe underwriting method used to sell the securities to the purchaser, ifthe securities are offered or sold to such purchaser by means of
any of the following communications, the undersigned registant will be a seller to the pwchaser and will be considered to offer or sell such
securities to such purchaser:
(i) Any preliminary prospectus or prospectus ofthe undersigned registrant relating to the offering required to be filed pursuant to Rule
424;
(iD Any free writing prospectus relating to the offering prepared by or on behalfofthe undersigned registant or used or referred to by
the udersigred registant;
(iii) The portion ofany other free writing prospectus relating to the offering containing material information about the undersigned
registrant or its securities provided by or on behalfofthe undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser
(6) That, for purposes of determining any liability under the Securities Act, each filing ofthe registrant's annual report pursuant to Section l3(a) or
Section l5(d) ofthe Exchange Act (and, where applicable, each filing ofan employee benefit plan's annual report pursuant to Sectiotr l5(d) ofthe
Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the
securities ofered therein, and the offering ofsuch securities at that time shall be deemed to be the initial bona fide offering thereof
II-5
(7) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, oftcers and contolling persons ofthe
registant pursuant to the foregoing provisions, or otherwise, the registant has been advised that in the opinion ofthe SEC such indemnification is
against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant ofexpenses incurred or paid by a director, officer or controlling person ofthe registrant in the
successful defense ofany action, suit or proceoding) is asserted by such director, officer or contolling person in connection with the securities
being registered, the registrant will, unless in the opinion ofits counsel the matter has been settled by contolling precedent, submit to a court of
appropriatejurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will begovemed by the final adjudication ofsuch issue.
II-6
SIGNATURES
pursuant to the requirements ofthe Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all ofthe
requirements for filing on Form S-3 and has duly caused this registration siatement to be sigred on its behalfby the undersigned thereunto duly authorized, in
the City ofPortland, State ofOregon, on September 25,2020.
PACIFICORP
By: /s/ Nikki L. Kobliha
Nikki L. Kobliha
Director, Vice President, Chief Financial Officer
and Treasurer (principal financial and accounting officer)
POWEROFATTORNEY
KNOW ALL PERSONS By THESE PRESENTS, that each person whose signature appears below constitutes and appoints, jointly and severally,
Nikki L. Kobliha and Jeffery B. Erb, as his or her true and laufirl attorneys-in-fact and agents, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, or any related registration statement
that is to be effective upon fling pursuant to Rule i62O) und;r the Securities Act of 1933, as amended, and to flle the same, with all exhibits thereto and all
documents in connection thereiit, *itt tt " Securities and Exchange Commission, granting unto said attomeys-in-fact and agents full power and authority to
do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do il person'
hereby iatiffing and confirming all that said attorneys-in-fact and agents may lawfully do or cause to be done by virtue hereof
pursuant to the requirements ofthe Securities Act of 1933, this registration statement has b€en duly signed by the following persons in the capacities
and on the dates indicated.
Sisnature
/s/ William J. Fehrman Chairman of the Board of Directors and Chief
Executive Ofticer (principal executive officer)William J. Fehrman
/s/Nilrti L. Kobliha Director, Vice President, Chief Financial Officer and
Treasurer (principal financial and accounting ofncer)Nikki L. Kobliha
/s/ Stefan A. Bird
Title
Director
Director
Director
Director
Date
September 25, 2020
September 25, 2020
September 25, 2020
September 25, 2020
September 25, 2020
September 25, 2020
Stefan A. Bird
/s/ Gary W. Hoogeveen
Gary W.Hoogeveen
/s/ Calvin D. Haack
Calvin D. Haack
/s/ Natalie L. Hocken
Natalie L. Hocken
fi-7
Exhibit 4.1
ICONFORMED CoPYI
PACIFICORP,
An Oregon Corporation
TO
MORGAN GUABANTY TRUST COMPAI{T
OF NEWYORK,
A New York Corporation
Trustee
fllortgrge EilD DeeU of U,tunt
Doted. os of Jonuary 9, 1989
This Instrument Grauts a Security Interest
By a Transmitting Utility
This Instrument Contains After-Acquired
Property Provisions
PACIFICORP,
An Oregon Corporation
TO
MORGAN GUABANTY TRUST COMPANY OF NEW YORK
A New York Corporation, Trustee
Mortgage and Deed of Trust
TABLE OF CONTENTS.
PAGE
PARTIES
Rpcrrer,s
GnANTING CLAUSES
AcnrpupNr es ro AFIER-ACQUIRED PRoPERTY
PRoPERTIES EXCEPTED FROM LIEN OF INDENTURE
HABENDUM
GneNr rN Tnusr
DEFEASANCE CLAUSE
CowulNr cLAUSE
1
1
1
B
3
4
t)
D
b
Spc. 1.01
ARTICLE I
Definitions
Explanatory statement
Construction of accounting terms
Evidence of approval of signer
Requests and applications to be accompanied by certificates and opinions
'Ailjusted Net Earnings" defined in Section 1.07 hereof
"Annual Interest Requirements" defined in Section 1.07 hereof
6
6
6
6
6
6
Spc. 1.02
* The Table of Contents was not a part of the Mortgage and Deed of Trust as executed.
11
Sec. 1.03
'Authorized Executive OfEcer of the Company''
'Authorized Financial OfEcer of the Company"
'Authorized Purposes"
"Board of Directors"
"Class "lt'' Bonds"
"Class "lt" Mortgage"
"Company''
"Cost'defined in Section 1.04(III) hereof
"Daily Newspaper"
"Defaults" defined in Section 15.01 hereof
"Engineel'
"Engineer's Certificate"
"Excepted Encumbrances" defined in Section 1.06 hereof
"Federal Bankrup tcy Act"
"Fuel TYansportation Facilities"
"Funded Bonds" defined in Section 1.05 hereof
"Funded Cash" defined in Section 1.05 hereof
"Funded Property''defined in Section 1.05 hereof
"independenf,'
"Independent Engineer's Certificate"
"Investment Securities"
"Lien hereof' and "Lien of this Indenture"
"Mortgage" or "this Indenture"
"Mortgaged and Pledged Property''
"Net Earning Certificate" defined in Section 1.07 hereof
"Offrcers' Certificate"
"Opinion of Counsel'
"Original Trustee"
"Outstanding"
"Outstandingl' with respect to Class "ll' Bonds
"Outstandingl'with respect to Qualified Lien Bonds defined in Section 1.06 hereof
"Pacific Mortgage"
"Proceeds of Released Property"
"Property Additions" defined in Section 1.04 hereof
"Qualified Lien" defined in Section 1.06 hereof
"Qualified Lien Bonds" defined in Section 1.06 hereof
"Resolution"
"Responsible Officers"
"Retired Bonds"
PAGE
7
7
7
7
7
I
7
7
7
8
8
8
9I
9
9IIII
9
10
10
10
10
10
11
11
11
11
ll
11
11
12
12
L2
t2
t2
t2
Spc. 1.04
Src. 1.05
Snc. 1.06
Spc. 1.07
1U
"Space Satellites"
"Trust Indenture Act"
"I!ustee"
"underwriter" defrned in Section 19.12 hereof
"Utah Mortgage"
"Wyodak Facility''
Q "Property Additions"
(II) Provisions for netting Property Additions
(I[) "Cost'
"Funded Property"
"Funded Bonds"
"Funded Cash'
"Excepted Encumbrances"
"Qualified Lien'
"Qualified Lien Bonds"
"Outstandingf'
"Net Earning Certificate"
Construction ofphrases relating to property retirement
Interest payments in foreign coin or currency
ARTICLE II
Forms, Dxecution, Registration, Exchange and Other
General Provisions as to lssuance ofBonds
Aggregate principal amount of bonds unlimited
Company free to determine price and other terms of issuance of bonds
Bonds issuable in series; establishment of terms, conditions and provisions of each such series
One or more series may be expressed in one or more foreign languages-English text shall prevail
Kinds and denominations ofbonds
Date of and interest on fully registered bonds
Dates and designation of coupon bonds
Legends on bonds
Surrender of bonds upon exchange
Authentication and issuance of new bonds
Charges for exchanges and transfers of bonds
Registration and transfer books
PAGE
L2
t2
13
13
13
13
13
15
16
t7
19
19
20
2t
2t
2t
22
26
26
Soc.
Spc.
Snc.
Snc.
Spc.
Snc.
Snc.
Soc.
2.Ot
2.02
2.03
2.04
2.05
2.06
2.07
2.08
26
27
27
30
30
30
30
31
31
31
31
32Soc. 2.Og
lV
PAGE
Spc.
Src.
Soc.
Spc.
2.to
2,tt
2.t2
2.L3
Execution ofbonds
Matured coupons to be detached before authentication ofbonds
Temporary bonds
Replacement ofstolen, lost, destroyed or mutilated bonds
Indemnity and charges
Trustee's certificate on bonds
32
82
DO
33
33
s4
34
34
34
34
Suc. 3.01
ARTICLE III
First Series ofBonds
Bonds of the First Series
(I) Redemption of Bonds of the First Series
(I) Exchange of Bonds of the First Series(II) Delivery of Bonds of the First Series
Snc. 4.01
ABTICLE TV
Issuance ofBonds Upon Deposit of Class "A"
Bonds With Trustee
(I) Additional bonds issuable based upon deposit of Class "A" Bonds(I) No Net Earning Certificate required in certain cases
35
36
Soc.
Spc.
Soc.
5.01
5.02
5.03
ABTICLEV
Issuance ofBonds on the Basis
of Property Additions
Additional bonds issuable on basis of Property Additions
No bonds issuable under Article V on basis of Funded Property
Bonds issuable under Article V to specified percentage of Cost or fair value of Property Additions after
making certain deductions and additions
Qualified Liens on Property Additions deducted from principal amount of bonds otherwise
issuable-exception
Bonds issuable on Property Additions subject to Qualified Lien and Qualified Lien Bonds limited to
specified percentage of all bonds including Qualified Lien Bonds
Net Earning requirements for issue on Property Additions
Bond application papers for issue on Property Additions
Determination of Cost, fair value and fair market value
DT
37
37
D'
37
4t
4t
46
Spc. 5.04
Snc.
Ssc.
5.05
5.06
v
ARTICLE VI
Issuance of Bonds Upon Retirement of
Bonds Previously Outstanding Hereunder
Snc.
Spc.
6.01
6.02
Bond application papers for issues in refunding certain Retired Bonds
Net Earning Certificate in certain cases
No bonds may be issued under Section 6.01 in certain cases
PAGE
46
47
48
Src.
Spc.
Soc.
7.Or
7.02
7.03
ARTICLE VIT
lssuance of Bonds Upon Deposit of Cash With Trustee
Bond application papers for issues against deposited cash
Withdrawal of cash deposited under Section 7.01
Company may direct application ofcash deposit under Section 7.01 to purchase, pay or redeem bonds
48
49
49
50
51
51
51
51
51
51
52
52
EO
53
53
53
53
SBc. 8.01
ABTICLE VIII
Amendments to the Trust lndenture Act
Reservation of right to comply with or conform to the Trust Indenture Act
Spc. 9.01
ARTICLE D(
Particular Covenants of the Company
Possession
Maintenance of Lien
Right to mortgage
Payment of principal and interest
Cancellation of paid coupons
(a) Appointment of qualified Trustee
(b) Office or agency for presentation of bonds, coupons, notices, etc.
Results of failure to maintain such offices
(c) Duty of paying agent other than Trustee
(d) Duty of Company acting as paying agent
(e) Delivery to Tlustee of sums held by other paying agent
(f) All sums to be held subject to Section 22.03
Payments oftaxes, etc.
Spc.
Snc.
9.02
9.03
Snc. 9.04
vl
Q) Insurance on property
(II) Application of insurance proceeds
(III) Use of money not applied to rebuilding or renewal within eighteen months(IV) Deductible provision
@ Maintenance of Mortgaged and Pledged Property
(II) Permanent discontinuance of operation or reduction of capacity of any plants or property
QII) Independent Engineer's Certificate on maintenance ofMortgaged and Pledged Property(f$ Company objection in writing to findings of independent Engineer; arbitration
fl) Grace period regarding compliance
(trrl) Company shall cure deficiency; independent Engineer or arbitrators shall report to Trustee
fl/II) Company deemed to have defaulted in covenants of this Section unless Trustee advised deficiency
has been cured(\{II) Expenses
(IX) Relief of Company from certain covenants by order or regulation of regulatory authority
fr) Retirement from plant account of property no longer useful in business
Covenant as to dividends
Maintenance of corporate existence and franchises
Recording, filing, etc.
Annual Opinion of Counsel
Instruments of further assurance
(a) Company to furnish Trustee information as to names and addresses of bondholders
(b) Preservation by Tlustee of such information
(c) Trustee shall make such information available or mail communications to bondholders in certain
circumstances
(d) Trustee and paying agent not accountable by reason of disclosing or mailing material pursuant to
subdivision (c)
(1) Company agrees to file with Trustee copies of annual reports which the Company may be required to
file with the Securities and Exchange Commission
PAGESpc. 9.05
Spc. 9.06
54
ab
56
Dt)
56
ol
57
58
59
59
59
59
59
60
60
60
60
61
61
62
62
62
64
64
Snc.
Spc.
Spc.
9.07
9.08
9.09
Soc. 9.10
Snc. 9.11
Snc.
Snc.
9.t2
9.13
vll
(2) Company agrees to file with Trustee and Securities and Exchange Commission certain additional
information with respect to compliance with certain conditions and covenants of Indenture
(B) Company agrees to transmit to bondholders summaries of such information as may be required by
Securities and Exchange Commission
Books of record and account
Faithful performance of covenants, conditions, etc'
Company to advise Trustee promptly after any failure to pay principal of or interest on Qualified Lien
Bonds or Class "lt''Bonds
Upon cancellation of Qualified Lien Company will
(a) cause Qualified Lien Bonds to be cancelled or deposited hereunder
ft) deposit hereunder all Funded Cash, etc., held thereunder
Not permit the amount of Qualified Lien Bonds to be increased----exceptions
Disposition of cash received on discharge of prior liens
Annual Certificate of No Default
ARTTCLEX
Concerning Bonds Secured by Lien Prior to
the Lien Hereof Deposited with Trustee
Requirements upon deposit ofbonds secured by lien prior hereto
Disposition ofprincipal and interest on bonds secured by lien prior hereto
Surrender of bonds secured by lien prior hereto
Extension ofmaturity, etc., ofbond secured by lien prior hereto
Trustee's rights on Default hereunder as holder of bonds secured by lien prior hereto
ARTICLEXI
Concerning Class "A" Bonds and
Additional Class "A" Mortgages
Trustee to notify trustees of Class '?' Mortgages of Default and payments to be made on held Class "A"
Bonds
65
65
bD
65
bc
65
66
66
67
68
PAGE
64
72
Soc.
Spc.
Spc.
10.01
10.02
10.03
Soc. 9.14
Snc. 10.04
Spc. 11.01
68
69
70
7t
7l
vlu
ARTICLE XI
Concerning Class "A" Bonds and
Additional Class "^{' Mortgages
Spc.
Spc.
tL.o2
11.03
Form ofdeposited Class "1t''Bonds
Trustee to vote all Class "1t''Bonds Outstanding with respect to any amendments or modification of
Class "A" Mortgage
Limitation on issuance of Class "lrl' Bonds
Limitation on issuance of Class "ll' Bonds under a Class "A' Mortgage
(I) Designation of Additional Class "A'Mortgages
(II) Status of Additional Class "ll'Mortgages and Additional Class ,,1t', Bonds
PAGE
Snc.
Spc.
Snc.
11.04
11.05
11.06
72
72
73
73
,D'to
76
76
76
77
78
78
78
78
78
79
79
79
79
Src.
Snc.
12.01
t2.02
ABTICLExIT
Redemption or Purchase ofBonds
Which bonds redeemable
Redemption of a part only of bonds
Notice of redemption
Mailing notice
Bonds due on redemption date ifprice deposited and notice given
Redemption money held in trust until paid to holders on surrender ofbonds
When bonds cease to bear interest
Partial redemption of registered bonds
Purchase of bonds with cash held by Tlustee
Company may designate series
Solicitation of offers to sell
Bonds paid, purchased or redeemed hereunder to be cancelled
Destruction ofbonds and coupons
Snc.
Suc.
12.03
t2.o4
Spc. 12.05
Soc. lz.OG
Src.
Spc.
13.01
13.02
ABTICLEXIII
Possession, Use and Belease of Mortgaged
and Pledged Property
Company's possession and enjoyment
What Company may do without release or consent by Trustee
(1) Replacement of machinery, equipment, tools, etc.
(2) Cancellation of rights of way
(3) Surrender or assent to modification of franchises, etc.
80
80
80
80
80
IX
Spc. 13.03 Release of property
(1) Officers' Certificate
(2) Engineer's Certificate
iai CrJfr equal to amount by which Cost or fair value of property released exceeds the sum of:
(a) Purchase money obligations received
@) Cost or fair value of Property Additions made basis of release
(c) Principal amount of bonds which Company waives right to issue
(d; P"rchase money obligations delivered to holder of Qualified Lien
(e) Principal amount of bonds delivered to Tlustee
(f Taxes and expenses
(4) Opinion of Counsel on Property Additions
(5) Opinion of Counsel on purchase money mortgage, etc.
(6) Opinion of Counsel if franchise to be released
(7) Opinion of Counsel on conditions and covenants
Assignment, filing and recordation ofpurchase money mortgages; Opinion ofCounsel
Conditions if release based on Property Additions, etc.
When Property Additions made basis of release do not become Funded Property
Disposition of consideration received upon release
Substituted property to become subject to Lien
Belease of property which is not Funded Property
(1) Officers' Certificate
(2) Engineer's Certificate
(3) Further Engineer's Certificate
(4) Opinion of Counsel
Release of real estate unimproved for Company's business
Any consideration received by Company to be deposited hereunder
Withdrawal or application of moneys received for releases, etc'
Such moneys may be:
(1) Withdrawn on basis of Property Additions
(2) Withdrawn on basis of right to issue bonds
(3) Applied to purchase bonds
(4) Applied to redeem bonds
PAGE
81
81
81
Src. 13.04
82
82
83
83
83
83
84
84
85
85
ab
85
86
86
88
88
89
89
90
90
90
91
91
91
92
92
92
Snc.
Snc.
13.05
13.06
x
Snc. 13.07
Requirements for withdrawal of moneys
When withdrawal does not represent Funded Property
Release of purchase money mortgage obligations
Principal and interest on purchase money mortgage obligations
Disposition ofbonds deposited under this Section
Release of property or subordination to interests taken by eminent domain or purchased by
governmental body
Application of proceeds
IfMortgaged and Pledged Property in hands ofreceiver or trustee, it may exercise powers conferred on
Company
Notwithstanding default, Tlustee may release Mortgaged and Pledged Property
Purchaser in good faith not put on inquiry
Alternative method of release of certain Mortgaged and Pledged Property
Quitclaim ofproperty not subject to Lien
PAGE
92
94
95
95
96
96
96
97
97
97
98
98
Snc. 13.08
Snc.
Spc.
13.09
13.10
Spc. 14.01
ARTICLE )flV
Discharge of Class ".f'Mortgage
Discharge of Class "l(' Mortgage if no bonds are Outstanding thereunder (excluding Class "lf' Bonds
held by the Trustee)99
Spc.
Spc.
Snc.
15.01
15.02
15.03
ARTICLEXV
Remedies of Trustee and Bondholders Upon Default
Defi nition of "Defaults"
Trustee to give bondholders and trustees under Class "1t'' Mortgages notice of defaults
Declaration of principal and accrued interest due upon Default
Holders of specified percentage of bonds may annul declaration
Trustee may take possession and operate Mortgaged and Pledged Property on Default
When Tbustee shall surrender possession to Company
Power ofTYustee to sell all the Mortgaged and Pledged Property
Judicial proceedings by Trustees
Remedies cumulative
Delay, etc., not a waiver of rights
Waiver of Default not to extend to subsequent Defaults
99
101
LO2
ro2
103
103
103
to4
104
104
104
Spc.15.04
Spc.
Snc.
15.05
15.06
XI
Spc. 15.07 Holders of specified percentage of bonds may direct judicial proceedings by Trustee
Bonds owned by Company or affrliates not included in determining percentages for certain purposes
Appointment of receiver
All bonds to become due and payable upon sale ofproperty
Purchase by bondholders at sale of property
Receipt ofTlustee or of6cer making sale to be a discharge to purchaser
Effect of sale on rights of Company
Disposition ofproceeds of sale
Order of application
Waiver by Company of advantage of any appraisement, valuation, stay, extension or redemption laws,
and of rights to marshal assets
Payment ofprincipal and interest to Trustee upon occurrence ofcertain defaults
Proofs of claim
Judgment may be taken by Trustee
Lien of Indenture not to be affected by judgment or levy of execution by Trustee
Application of moneys collected by Tlustee
Possession of bonds unnecessary in action by Trustee
Bondholders not necessary parties to action
Limitation upon right ofbondholders to institute certain legal proceedings
Right of bondholders to receive and enforce payment not impaired
Company may waive period of grace
If enforcement proceedings abandoned, status quo ant€ restored
PAGE
104
105
105
106
106
106
107
107
107
Snc.
Spc.
Soc.
Src.
15.08
15.09
15.10
15.11
Soc.
Snc.
Spc.
I5,L2
15.13
15.14
108
109
109
110
110
110
110
lll
111
rt2
tL2
Lt2
Suc.
Sec.
Spc.
15.15
15.16
15.17
Src. 16.01
ARTICLEXVI
Evidence of Bights of Bondholders
and Ownership ofBonds
Execution of instruments by bondholders
Proof of execution
(a) Acknowledgment
O) Certificate of trust company, bank, etc.
Consent or vote binding on future holder ofbond
tt2
tt2It2tt2
113
xll
Spc. 16.02 Evidence of ownership of temporary or coupon bonds
Evidence of ownership of registered bonds
Inspection ofbonds
PAGE
113
113
Lt4
Suc. 17.01
ABTICLE XVTI
Immunity of Incorporators, Subscribers to the
Capital Stock, Shareholders, Officers and Directors
Liability of officers, etc. released and waived tt4
Snc. 18.01
ARTICLEXVIII
Effect of Merger, Consolidation, Etc.
Company may merge, consolidate, etc., upon certain terms
Covenant against impairment of Lien thereby
Assumption of obligation by successor
Rights of successor corporation
Execution of indenture
Issuance of bonds, etc., on basis of Property Additions by successor corporation
Extent of Lien of this Indenture upon property of successor corporation
115
115
115
115
116
116
t17
Src. 18.02
Spc. 18.03
Spc. 19.01
ARTICLEXD(
Concerning the Trustee
Qualification of Tlustee
Acceptance of trust-duties in general
Extent of Tlustee's liability-in general
Recitals deemed made by Company
Trustee not liable for debts incurred in operating property
Trustee, etc., may own bonds
Trustee may give notices incidental to action by it
Notice by Tlustee to Company-mailing
Trustee protected in relying on Certificates, etc.
Trustee may consult counsel
Responsibility in selection of experts
Moneys deposited with Trustee to be held in trust
Interest on moneys with Tlustee
Compensation of Trustee-lien therefor
119
119
119
Lzl
r2t
L2lt2l
L2t
t22
t22
t22
L22
L22
t23
Snc.
Spc.
Spc.
19.02
19.03
19.04
Spc.
Snc.
Spc.
19.05
19.06
19.07
Suc.
Ssc.
19.08
19.09
x11.1
PAGE
Snc.
Spc.
Src.
19.10
19.11
L9.t2
Trustee may rely on facts established by certificate from Company
Action to be taken by Trustee who becomes creditor of Company
Action to be taken by Trustee acquiring conflicting interest
Definition of conflicting interest
Trustee to transmit certain reports to bondholders
Copies ofreports to be filed with stock exchanges and Securities and Exchange Commission
Resignation or removal ofTrustee
Appointment of successor Trustee
Appointment of additional trustees or co-trustees
Conditions affecting such appointment
Notice by bondholders to Trustee, notice to all trustees
Contents, filing, etc. ofinstrument appointing trustee
Incapacity, etc., of separate trustee or co-trustee
Acceptance by successor trustee
Requirements of predecessor trustee upon retiring
Merger or consolidation of Trustee
Delivery of bonds authenticated by predecessor Trustee
Authentication by successor Trustee
Appointment of successor Trustee by Company
Appointment of authenticating agent
t24
L24
t29
130
135
t37
t37
138
139
140t4t
t4Lt4lt4t
142
L42
t42
t43
143
143
t45
Spc.19.13
Spc.
Spc.
Suc.
19.14
19.15
19.16
Snc.
Snc.
t9.L7
19.18
Snc.
Soc.
19.19
t9.20
Spc.
Spc.
20.01
20.02
ABTICLE )O(
Discharge of Mortgage
Execution of requisite deeds and instruments
Bonds for payment of which money or obligations of the United States are deposited are deemed
paid-provisos
Discharge of obligation to comply with covenantsSrc. 20.03
t46
t47
Spc.
Src.
21.01
2t.o2
ARTICLE)Oil
Meetings and Consents of Bondholders
Modifications of Indenture-in general
Call and notice of meeting of bondholders
Place when called by Trustee
Written notice
Publication
When notice not required
t47
t47
r47
148
148
14ti
xlv
PAGE
Snc.21.03
2t.04
21.05
21.06
2L.O7
21.08
Attendance at meetings
Trustee may make regulations as to deposits of bonds
Certificate in lieu of production of unregistered bonds
Persons entitled to vote at meetings
When production of bonds and further proof necessary
Prodes-Acknowledgment
Temporary Chairman and Secretary
Permanent Chairman and Secretary
Inspectors ofVotes
Quorum
Notice of adjournment
Vote necessary for modification, alteration, etc., of Indenture
Limitations on right of modification
Bonds owned, held by, or for account ofCompany not counted
Record of meeting
Conclusiveness of record
Copy of resolution to be mailed to bondholders
Proof of mailing to be filed with Trustee
Effect of failure to mail
Approval ofresolution by Company
Effective date of resolution
Notation of action taken may be made on bonds
New bonds
When supplemental instruments may be executed
(A) Trustee may receive written consent of bondholders in lieu of holding a meeting
@) Acknowledgment of written consent
(C) Revocation of consent
148
148
149
150
150
150
150
150
150
151
151
t52
r52
153
153
153
153
153
153
t54
r54
154
t54
L54
.l.bl)
155
156
Snc.
Snc-
Spc.
Snc.
Snc.
Snc. 21.09
Spc. 21.10
Snc.
Spc.
22.01
22.O2
ARTICLE)OilT
Miscellaneous
Benefits restricted to parties hereto and to holders ofbonds and coupons
Investment of cash by Trustee in certain securities
Such securities held by Trustee as part ofMortgaged and Pledged Property
Retirement ofbonds with funds in excess of specified amount held by Trustee for specified period
156
t57
t57
t57
xv
PAGE
Suc. 22.0g Deposits for bonds and coupons not claimed for specified period to be returned to Company on demand
Spc. 22.04 Bights may be waived or surrendered by Company
Company may enter into further covenants for benefit of one or more series of bonds
Trustee may join with Company in execution of instruments
Spc. 22.05 Formal requirements of certificates and opinions hereunder
Spc. 22.06 Concerning court costs and counsel fees in certain suits hereunder
Ssc. 22.07 Successors and assigns
Snc. 22.08 Addresses ofthe parties hereto
Snc. 22.09 In event ofconflict, Tlust Indenture Act provisions herein to control
Snc. 22.L0 Reference is to Trust Indenture Act in force on the date ofexecution hereof--+xceptions
Spc. 24.ll Titles ofArticles oflndenture, marginal sectional, marginalArticle references and table ofcontents not
part thereof
Snc. 22.12 Execution in counterparts
Tpsrruounnt
SrcN,lrunrs axp Spars
Acxnowr,pucurNts
Exursrt X
ExnrnrrY
ExErBrr Z
158
158
158
159
159
160
160
160
161
161
161
161
t62
t62
163
t64
167
170
INDENTURE, dated as of the ninth day of January, 1989, made and entered into by
and between PACIFICORP, an Oregon corporation (the "Company"), and MORGAN
GUARANTY TRUST COMPANY OF NDW YORK, a New York corporation, as trustee
hereunder (the ttTrustee");
WHEREAS, the Company deems it necessary to borrow money for its corporate purposes and to
issue its bonds therefor from time to time in one or more series, and to mortgage and pledge its
property hereinafter described or mentioned to secure the payment of the same; and
WHEREAS, all acts necessary to make this Indenture a valid, binding and legal instrument for
the security of such bonds have been performed, and the issue of such bonds, subject to the terms
ofthis Indenture, has been in all respects duly authorized;
Now, THEREFoRE, THIS INDENTURE WITNESSETH: THAT PACIFICoRP, an Oregon corporation,
in consideration of the premises and of good and valuable consideration to it duly paid by the
Trustee at or before the ensealing and delivery of these presents, the receipt and sufficiency
whereof is hereby acknowledged, and in order to secure the payment of both the principal of and
interest and premium, if any, on the bonds from time to time issued hereunder, according to their
tenor and effect and the performance of all provisions hereof (including any instruments
supplemental hereto and any modification made as in this Indenture provided) and of such bonds,
has mortgaged, pledged and granted a security interest in, and by these presents does mortgage,
pledge and grant a security interest in (subject, however, to Excepted Encumbrances as defined in
Section 1.06 hereofl, unto Morgan Guaranty Trust Company of New York, as Trustee, and to its
successor or successors in said trust, and to said Trustee and its successors and assigns forever,
those certain parcels of real property described in Exhibit Z attached hereto and by this reference
made a part hereof, and all other properties of the Company real, personal and mixed, of the kind
or nature specifically mentioned herein or of any other kind or nature (except any hereinbefore or
hereinafter expressly excepted), now owned or, subject to the provisions of Section 18.03 hereof,
hereafter acquired by the Company (by purchase, consolidation, merger, donation, construction,
erection or in any other way) and wheresoever situated, including (without limitation) all real
Parties*
Recitrlg
Compliance with
legal requirements
Grenting clauses
Gcnerrl rnd rftsr-acquired
prop€rty chrses
*The margin notes and headings were not a part ofthe Mortgage and Deed ofTrust as executed.
2
Appurtenrncs, etc.
estate, lands, easements, servitudes, licenses, permits, franchises, privileges, rights of way
and other rights in or relating to real estate or the occupancy of the same; all power sites,
flowage rights, water rights, water locations, water appropriations, ditches, flumes,
reservoirs, reservoir sites, canals, raceways, waterways, dams, dam sites, aqueducts, and all
other rights or means for appropriating, conveying, storing and supplying water; all rights of
way and roads; all plants for the generation of electricity and other forms of energy (whether
now known or hereafter developed) by steam, water, sunlight, chemical processes and/or
(without limitation) all other sources of power (whether now known or hereafter developed);
all power houses, gas plants, street lighting systems, standards and other equipment
incidental thereto; all telephone, radio, television and other communications, image and data
transmission systems, air-conditioning systems and equipment incidental thereto, water
wheels, water works, water systems, steam and hot water plants, substations, Iines, service
and supply systems, bridges, culverts, tracks, ice or refrigeration plants and equipment,
offices, buildings and other structures and the equipment thereof; all machinery, engines,
boilers, dynamos, turbines, electric, gas and other machines, prime movers, regulators,
meters, transformers, generators (including, but not limited to, engine-driven generators and
turbogenerator units), motors, electrical, gas and mechanical appliances, conduits, cables,
water, steam, gas or other pipes, gas mains and pipes, service pipes, fittings, valves and
connections, pole and transmission lines, towers, overhead conductors and devices,
underground conduits, underground conductors and devices, wires, cables, tools, implements,
apparatus, storage battery equipment, and all other fixtures and personalty; all municipal
and other franchises, consents or permits; all lines for the transmission and distribution of
electric current and other forms of energy, gas, steam, water or communications, images and
data for any puryose including towers, poles, wires, cables, pipes, conduits, ducts and all
apparatus for use in connection therewith and (except as hereinbefore or hereinafter
expressly excepted) all the right, title and interest of the Company in and to all other
property ofany kind or nature appertaining to and/or used and/or occupied and/or enjoyed in
connection with any property herein-before described;
ToGETHER WITH all and singular the tenements, hereditaments, prescriptions,
servitudes and appurtenances belonging or in anywise
3
appertaining to the aforesaid property or any part thereof, with the reversion and reversions,
remainder and remainders and (subject to the provisions of Section 13.01 hereof) the tolls,
rents, revenues, issues, earnings, income, product and profits thereof, and all the estate,
right, title and interest and claim whatsoever, at law as well as in equity, which the
Company now has or may hereafter acquire in and to the aforesaid property and franchises
and every part and parcel thereof.
IT IS HEREBY AGREED by the Company that, subject to the provisions of Section 18.03
hereof, all the property, rights and franchises acquired by the Company @y purchase,
consolidation, merger, donation, construction, erection or in any other way) after the date
hereof, except any hereinbefore or hereinafter expressly excepted, shall be and are as fully
mortgaged and pledged hereby and as fully embraced within the Lien hereof as if such
property, rights and franchises were now owned by the Company and were specifically
described herein and mortgaged hereby.
PROVIDED THAT the following are not and are not intended to be now or hereafter
mortgaged or pledged hereunder, nor is a security interest therein hereby granted or
intended to be granted, and the same are hereby expressly excepted from the Lien hereofand
the operation of this Indenture, namely: (l) cash, shares of stock, bonds, notes and other
obligations and other securities not hereinbefore or hereafter specifically pledged, paid,
deposited, delivered or held hereunder or covenanted so to be; (2) merchandise, equipment,
apparatus, materials or supplies held for the purpose ofsale or other disposition in the usual
course of business or for the purpose of repairing or replacing (in whole or part) any rolling
stock, buses, motor coaches, automobiles or other vehicles or aircraft or boats, ships, or other
vessels, and any fuel, oil and similar materials and supplies consumable in the operation of
any of the properties of the Company; rolling stock, buses, motor coaches, automobiles and
other vehicles and all aircraft; boats, ships and other vessels; all crops (both growing and
harvested), timber @oth growing and harvested), minerals ftoth in place and severed), and
mineral rights and royalties; (3) bills, notes and other instruments and accounts receivable,
judgments, demands, general intangibles and choses in action, and all contracts, leases and
operating agreements not specifically pledged hereunder or hereafter covenanted so to be;
(4) the last day of the term of any lease or leasehold which may hereafter become subject to
the Lien hereof; (5)
Agreem€nt rs to rfter-ecquired
prop€rty
Prop€rties except€d from Lien of
Indenture
4
Subordinrtion of Lien of Indenturc
Habendum
electric enelgy, gas, water, steam, ice, and other materials, forms of energy or products
generated, manufactured, produced or purchased by the Company for sale, distribution or
use in the ordinary course of its business; (6) any natural gas wells or natural gas leases or
natural gas transportation lines or other works or property used primarily and principally in
the production of natural gas or its transportation, primarily for the purpose of sale to
natural gas customers or to a natural gas distribution or pipeline company, up to the point of
connection with any distribution system; (7) the Company's franchise to be a corporation;
(8) any interest (as lessee, owner or otherwise) in the Wyodak Facility, including, without
limitation, any equipment, parts, improvements, substitutions, replacements or other
property relating thereto; and (9) all properties that PacifiCorp, a Maine corporation, and/or
Utah Power & Light Company, a Utah corporation, have contracted to dispose of and that
have been released from the liens of the Pacific Mortgage and the Utah Mortgage,
respectively, prior to the date hereof, but title to which properties had not passed to the
grantee(s) thereof as of said date; provided, however, that the property and rights expressly
excepted from the Lien and operation of this Indenture in the above subdivisions (2) and
(3) shall (to the extent permitted by law) cease to be so excepted in the event and as of the
date that the Trustee or a receiver for the Trustee shall enter upon and take possession of
the Mortgaged and Pledged Property in the manner provided in Article XV hereof by reason
ofthe occurrence ofa Default;
AND PROVIDED FURTHER, that as to any property of the Company that is now or
hereafber becomes subject to the lien of a Class "Il' Mortgage pursuant to the after-acquired
property provisions thereof, the Lien hereof shall at all times be junior and subordinate to
the lien of such Class "It'' Mortgage;
To HAyE AND To HoLD all such properties, real, personal and mixed, mortgaged and
pledged hereby, or in which a security interest has been granted by the Company as
aforesaid, or intended so to be (subject, however, to Excepted Encumbrances as defined in
Section 1.06 hereof), unto Morgan Guaranty Trust Company of New York, as Trustee, and its
successors and assigns forever;
5
IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth, for the equal pro
rata benefit and security of all and each of the bonds and coupons issued and to be issued.
hereunder, or any of them, in accordance with the terms of this Indenture, withoutpreference, priority or distinction as to the lien of any of said bonds and coupons over anyothers thereof by reason of priority in the time of the issue or negotiation thereo{ or
otherwise howsoever, subject to the provisions hereinafter set forth in reference to extended,
transferred or pledged coupons and claims for interest; it being intended that, subject as
aforesaid, the lien and security of all of said bonds and coupons of all series issued or to beissued hereunder shall take effect from the execution and delivery of this Indenture, andthat the Lien and security of this Indenture shall take effect from the date of execution and
delivery hereof as though all of the said bonds of all series were actually authenticated anddelivered and issued upon such date.
PRoVIDED, HoWEVER, that these presents are upon the condition that if the Company, its
successors or assigns, shall pay or cause to be paid the principal of and interest on saidbonds, together with the premium, if any, payable on such of said bond.s as may have beencalled for redemption prior to maturity, or shall provide, as permitted hereby, for thepayment of the entire amount due or to become due thereon for principal, interest andpremium, if any, and if the Company shall also pay or cause to be paid all other sumspayable hereunder by it, then this Intlenture and the lien and rights hereby created shall
cease, determine and be void, otherwise to be and remain in full force and effect.
IT Is HEREBY CoVENANTED, DECLARED AND AGREED by and between the parties heretothat all such bonds and coupons are to be authenticated, delivered and issued, and that allproperty subject or to become subject hereto is to be held subject to the further covenants,conditions, uses and trusts hereinafber set forth, and the Company, for itself and its
successors and assigns, does hereby covenant and agree to and with the Trustee and its
successor or successors in such trust, for the benefit of those who shall hold said bonds andinterest coupons, or any of them, as follows;
Grrnt in Trust
Defeesrnce cleuse
Covenant cleuse
6
Explanatory statement
Construction of accounting
term
Evidence of
Trustee's approval of signer
Requirement for Officer's
Certificate and Opinion of
Counsel
'i{djusted Net Eamings"
"Annual Interest
Requirements"
Art. I; $$1.0r, 1.02
ARTICLE I
Definitions
Section 1.01 The terms defined in the next six Sections hereof, numbered from 1.02 to
1.07, both inclusive, shall (except as in this Indenture or in any indenture supplemental
hereto otherwise expressly provided) for all pulposes ofthis Indenture, and ofany indenture
supplemental hereto, have the respective meanings in such Sections specified. Subject to
Seciion 8.01 hereof, any term defined in Section 303 of the Trust Indenture Act and not
defined in this Indenture shall have the meaning assigned to such term in such Section 303
as in force on the date ofthe execution ofthis Indenture.
The accounting terms used in this Indenture shall be construed in accordance with
generally accepted accounting principles and practices in use at the time by companies
operating like properties or, at the option of the Company, from time to time, in accordance
with generally accepted accounting principles and practices in use at the date of this
Indenture or at the date of any Class "1t''Mortgage, as hereinafter defined, so long as such
Class "/t''Mortgage is in effect.
The acceptance by the Trustee of any document the signer of which is required by some
provision hereofto be approved by the Trustee, shall be sufficient evidence ofits approval of
the signer within the meaning of this Indenture.
Every request or application by the Company for action by the Trustee under any of the
provisions oflhis Indenture shall be accompanied by the Officers' Certificate and the Opinion
of Counsel provided for in Section 22.05 hereof.
A Resolution delivered to the Trustee shall be sufficient evidence of the Board of
Director's actions set forth therein.
Section 1.02 The term'Adjusted Net Earnings" is defined in Section 1.07 hereof.
The term'Annual Interest Requirements" is defined in Section 1.07 hereof.
7
The term 'Authorized Purposes" shall mean the authentication and delivery of bond.s, the "Authorized purposes,,
release of property and/or the withdrawal of cash under any of the provisions of this
Indenture.
s1.02
The term 'Authorized Executive Officer of the Company'' shall mean its Chairman of the
Board, Chief Executive Officer, Chief Operating Officer, President or any Vice-President.
The term 'Authorized Financial Officer of the Company'' shall mean its Chief Financial
Officer, Chief Accounting Offrcer, Controller, Comptroller, Treasurer or any Assistant
Treasurer.
The term "Board of Directors" shall mean either the board of directors of the Company or
any duly constituted committee authorized by Resolution to act for said board hereunder.
The term "Class "A" Bonds" shall mean bonds now or hereafter issued and outstandingunder (1) the Pacific Mortgage, (2) the Utah Mortgage and./or (B) any other Class ,,A1,
Mortgage or Mortgages.
The term "class "lt''Mortgage" shall mean the Pacific Mortgage, the utah Mortgage and
each other mortgage or deed of trust or similar indenture entered into by any corporationthat is subsequently merged into or consolidated with the Q6mpan/ and hereafter designated
an additional Class "/t'' Mortgage in a supplemental indenture to be executed and recorded
as provided in Section 11.06 hereof.
The term "Company" shall mean PacifiCorp, an Oregon corporation, and subject to theprovisions of Article X\4II hereof, shall also include its successors and assigns. For thepurposes of (i) clause (2) of subdivision (c) of Section g.03 hereof, (ii) the second paragraph of
Section 15.07 hereof, (iii) the second and third paragraphs of Section 15.14 hereof,
(iv) Section 19.11 hereof, (v) Section 19.12 hereof and (vi) paragraph (3) of subdivision (a) of
Section 19.13 hereof, the word "Company'' shall be deemed to mean and refer to the
Company and any other obligor on the bonds secured hereby.
The term "Cost" with respect to Property Additions is defined in Section 1.04(IID hereof.
The term "Daily Newspapey'' shall mean a newspaper of general circulation, printed in
the English language and customarily published
"Authorized Executive Ofliccr of th€
Compeny"
"Authorizcd Finencirl Oflicer of the
Compeny"
"Board ofDiretors"
"Class "A" Bonds"
'Cl.ss "A'Mortgrge"
'Compeny"
(Cost'
"Deily Newsprper"
8
"Defrults"
"Engineer"
(En gincer's Certilicrte"
$1.02
on each business day, whether or not published on Saturdays, Sundays or holidays; or, in the
alternative, shall mean such form of communication as may have come into general use for
the dissemination of information of similar import. In the event that successive weekly
publications in a Daily Newspaper are required hereunder they may be made (unless
otherwise expressly provitlett hlrein) on the same or different days of the week and in the
same or in different Daily Newspapers. In case, by reason of the suspension of publication of
any Daily Newspaper, or by reason of any other cause, it shall be impractical without
extraordinary expense to make publication of any notice in a Daily Newspaper as required by
this Indentur", ih"r, such method of publication or notification as shall be made with the
approval of the Trustee shall be deemed the equivalent of the required publication of such
notice in a Daily NewsPaPer.
The term "Defaults" is defined in Section 15.01 hereof.
The term "Engineet'' shall mean an individual who is an engineer, or a co-partnership or
a corporation engaged in an engineering business, who or which, unless required to be
independent, may be employed by the Company.
The term "Engineer's Certificate" shall mean a certificate signed by an Authorized
Executive Offrcer of the Company and by an Engineer appointed by the Board of Directors;
provided, however, if any property or securities are to be released from the Lien of this
indenture, the Engineer's Certificate as to the fair value ofsuch property or securities and as
to matters referred to in clause (f) of subdivision (2) of Section 13.03 and clause (y) of
Section 13.0a(2)(a) hereof shall be made by an independent Engineer, appraiser, or other
expert (who or *t i"t may be appointed by an Authorized Executive Officer of the Company),
if lhe fair value of such properiy or securities and of all other property or securities released
since the commencement of the then current calendar year, as set forth in the certificates
required by this Indenture, is ten per centum (10%) or more of the aggregate principal
amount of the bonds at the time Outstanding; but such a certificate of an independent
Engineer, appraiser, or other expert shall not be required in the case of any release of
property or securities, if the fair value thereof as set forth in the certificates required by this
indlnture is less than Thenty-five Thousand Dollars ($25,000) or less than one per centum
(lo/o) of the aggregate amount of (x) the principal amount of the bonds at the time
butstanding ""a fyl the principal amount of the Class A Bonds at the time Outstanding
other than
I
$r.02
Class A Bonds delivered to and held by the Trustee hereunder. Each such certificate shall
include the statements provided for in Section22.05 hereof.
The term "Excepted Encumbrances" is defined in Section 1.06 hereof.
The term "Federal Bankruptcy Act" shall mean the Bankruptcy Reform Act of 1978, any
amendments thereto, or any law substituted therefor.
The term "Independent Engineer's Certifi.cate" shall mean a certifi.cate signed by an
independent Engineer. Each such certifi.cate shall include the statements provided for in
Section 22.05 hereof.
The term "Fuel Transportation Facilities" shall mean railroad cars, conveyors, barges and "Fuel rrrnsportstion Facilities"
other transportation equipment (other than trucks) used or to be used primarily for the
transportation of coal, oil, nuclear fuel or other fuel.
The term "Funded Bonds" is defined in Section 1.05 hereof.(Funded Bonds"
The term "Funded Cash" is defined in Section 1.05 hereof."Fund€d Cssh"
The term "Funded Property''is defined in Section 1.05 hereof.(Funded Property'
The term "independent'', when applied to any accountant, Engineer, appraiser or .independent"
other expert, shall mean such a person who (a) is in fact independent, (b) does not have
any direct material financial interest in the Company or in any other obligor upon the
bonds or in any affrliate ofthe Company or ofsuch other obligor and (c) is not connected
with the Q6mpan/ or such other obligor as an officer, employee, promoter, underwriter,
trustee, partner, director or any person performing similar functions, selected by an
Authorized Executive Officer of the Company and who is approved by the Tlustee in the
exercise of reasonable care.
"Erccpted Encumbrrnces"
"Federol Bsnknptcy Act"
"Independent Engineer's
Certificate'
The term "Investment Securities" shall mean any of the following obligations or securities 'Inveltmertsecurities"
on which neither the Company nor any of its subsidiaries or its affiliates is the obligor:
(a) bonds or other obligations of the United States of America; ft) interest bearing deposit
accounts (which may be represented by certificates of deposit) in national or state banks
(which may include the Trustee) having a combined capital and surplus of not less than Ten
Million Dollars ($10,000,000), or savings and loan associations having total assets of not less
than Forty Million Dollars
6l,ien hereof'rnd "Lien ofthis
Indenture'
"Mortgrge" or "this Indenture"
"Mortgrged and Pledged Property"
"N€t Earning Certiliet€"
'(OfIic€rs' Certifi cate"
10
ssr.02, r.03
($40,000,000); (c) bankers' acceptances drawn on and accepted by commercial banks (which
may include the Trustee) having a combined capital and surplus of not less than Ten Million
Dollars ($10,000,000); (d) direct obligations of, or obligations the principal ofand interest on
which are unconditionally guaranteed by, any State of the United States of America, the
District of Columbia or the Commonwealth of Puerto Rico, or any political subdivision of any
ofthe foregoing, which are rated in any ofthe three highest rating categories without regard
to modifiers by a nationally recognized rating agency; (e) bonds or other obligations of any
agency or instrumentality of the United States of America; (f) commercial or finance
company paper which is rated in any of the two highest rating categories without regard to
modifiers by a nationally recognized rating agency; (g) corporate debt securities rated in any
of the three highest rating categories without regard to modifiers by a nationally recognized
rating agency; (h) repurchase agreements with banking or financial institutions having a
combined capital and surplus of not less than Ten Million Dollars ($10,000,000) (which may
include the Trustee) with respect to any ofthe foregoing obligations or securities; and (i) any
other obligations or securities which may lawfully be purchased by the Trustee.
The terms "Lien hereof' and "Lien of this Indenture" shall mean the lien created by these
presents (including the after-acquired property clauses hereof) and the lien created by any
subsequent mortgage, pledge, grant of a security interest or delivery to the Trustee that
effectively constitutes any property as a part of the security held by the Trustee upon the
terms and trusts and subject to the covenants, conditions and uses specified in this
Indenture.
The terms 'Mortgage" or "this Indenture" shall mean this instrument and all indentures
supplemental hereto.
Section 1.03 The term "Mortgaged and Pledged Property'' shall meau as of any
particular time the property which at said time is subject to the Lien of this Indenture.
The term "Net Earning Certificate" is defined in Section 1.07 hereof.
The term "Officers' Certificate" shall mean a certificate signed by an Authorized
Executive Officer of the Company, and by the Secretary or an Assistant Secretary or an
Authorized Financial Officer of the
11
sr.03
Company. Each such certificate shall include the statements provided for in Section 22.0b
hereof.
The term "Opinion of Counsel" shall mean an opinion in writing signed by counsel (who
may be an employee of or of counsel to the Company) appointed by an Authorized Executive
Officer of the Company. Each such opinion shall include the statements provided for in
Section 22.05 hereof.
The term "Original Trustee" shall mean Morgan Guaranty Trust Company of New York.
The term "Outstanding", subject to the provisions of Sections 15.07 and 21.07 hereof,shall mean as of any particular time with respect to bonds issued or issuable under thisIndenture all bonds which theretofore shall have been authenticated and delivered by theTrustee under this Indenture, except (a) bonds theretofore paid, retired., redeemed,
discharged or cancelled, or bonds for the purchase, payment or redemption of which money inthe necessary amount shall have been deposited with or shall then be held by the Trusteewith irrevocable direction so to apply the same, provided that, in the case of red.emption, thenotice required by Article XII hereof shall have been given or have been provided for to thesatisfaction of the Trustee, (b) bonds deposited with or held in pledge by the Trustee underany of the provisions of this Indenture, including any so held under any sinking or otherfund, and (c) bonds authenticated and delivered hereunder, upon transfer of which or in
exchange or substitution for and./or in lieu of which other bonds have been authenticated and
delivered under any ofthe provisions ofthis Indenture.
The term "Outstanding" with respect to Class "A" Bonds shall have the same meaning asit has with respect to such Class "1t'' Bonds under the applicable Class "/t'' Mortgage.
The term "Outstanding" with respect to Qualified Lien Bonds is defined in Section 1.06
hereof.
The term "Proceeds ofReleased Property''shall mean the aggregate ofthe cash deposited
with or received by the Trustee pursuant to the
The term "Pacific Mortgage" shall mean the Mortgage and Deed of Trust, dated as of .prciricMorrgrge,
July 1, 1947, between Pacific Power & Light Company and Guaranty Trust Company of NewYork and Oliver R. Brooks, as Trustees, as heretofore or hereafter amended orsupplemented.
"Opinion ofCounsel"
(Originel Trurtee"
'(Outstanding"
"outstending' (with r$p€ct to
Qualified Lien Bonds)
rcuhtanding" (with r€spcct to
Class'A" Bonds)
"Proceeds of Rclcesed Property',
t2
$1.03
"Property Additions"
"QurliIi€d Lien"
6Qualified Licn Bonds"
(Rcsolution"
'Responsible Officers"
"Retired Bonds'
"Sprce Satellit€s"
"Trust Indentur€ Act"
provisions of Section 13.03, Section 13.05 (except such cash as is to be paid over to the
bo*pury under the provisions of Section 13.06), or Section 13.07 hereof.
The term "Property Additions" is defined in Section 1.04 hereof'
The term "Qualified Lien" is defined in Section 1.06 hereof'
The term "Qualified Lien Bonds" is defined in Section 1.06 hereof'
The term "Resolution" shall mean 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
fuII force and effect on the date certifred.
The term "Responsible Officers" of the Trustee shall mean any officers of the Trustee
assigned by the Trustee to administer its corporate trust business; and the term
"Responsible Offrcey'' shall mean and include any of said officers'
The term "Retired Bonds" shall mean any bonds authenticated and delivered under this
Indenture (and not having been made the basis under any ofthe provisions ofthis Indenture
of one or more Authorized Purposes, subject to the provisions of Section 13.03 and
Section 13.06 hereof permitting the revocation of the waiver of the right to the
authentication and delivery of bonds) that shall have been purchased, paid, retired,
redeemed or cancelled or surrendered to the Trustee for cancellation or for the purchase,
payment or redemption of which moneys in the necessary amount shall have been deposited
wiih or shall then be held by the Trustee with irrevocable direction so to apply the same
(provided that any such purchase, payment, retirement, redemption, cancellation or
irrrender of bonds .t "tt tr"'tn" been, or is to be, effected otherwise than with cash which, after
giving effect to the provisions of Sections 1.05 and 13.06 hereof, is then deemed to be or to
L"u" b""r, Funded Cash, and, in the case of redemption, the notice required therefor shall
have been given or have been provided for to the satisfaction ofthe Trustee).
The term "Space Satellites" shall mean any form of communications satellites, solar
power satellites, space satellites, space stations and other analogous facilities whether or not
in the Earth's atmosphere.
The term "Trust Indenture Act' shall mean the Trust Indenture Act of 1939, as amended
and as in effect as ofthe date hereof, except as provided in Sections 8.01 and 21.09 hereof.
13
$sr.03, r.04
The term "Trustee" shall mean Morgan Guaranty Trust Company of New York and, "rrustee"
subject to the provisions ofArticle XIX, shall also include its successors and assigns.
The term "underwriter" is defined in Section 19.12 hereof."undcmritcr"
The term "Irtah Mortgage" shall mean the Mortgage and Deed of Trust, dated as of '(utrh Mortsrgc'
December 1, 1943, between Utah Power & Light Company and Guaranty Trust Company of
New York and Arthur E. Burke, as Trustees, as heretofore or hereafter amended or
supplemented.
The term "Wyodak Facility" shall mean that certain coal-fired, direct cycle, air-cooled 'rilyodakFacility"
steam electric generating station having a name-plate rating of 330,000 kilowatts located at
Wyodak, Wyoming, including the real property on which such station is located and the coal
supply system, water supply facilities and related real property easements, permits and
rights-of-way, as more fully described in the Lease Agreement dated as of June 8, 1978
between PacifiCorp, a Maine corporation (formerly Pacific Power & Light Company) and
Black Hills Corporation (formerly Black Hills Power and Light Company), as lessees, and
The Wyoming National Bank Casper (formerly The Wyoming National Bank of Casper N.A.),
as owner trustee and lessor, as amended.
Section 1.04 (I) The term "Property Additions" shall mean all real estate, Iands,
easements, servitudes, licenses, permits, franchises, privileges, rights of way and other
rights in or relating to real estate or the occupancy of the same; all power sites, flowage
rights, water rights, water locations, water appropriations, ditches, flumes, reservoirs,
reservoir sites, canals, raceways, waterways, dams, dam sites, aqueducts, and all other
rights or means for appropriating, conveying, storing and supplying water; all rights of way
and roads; all plants for the generation ofelectricity and other forms ofenergy (whether now
known or hereafter developed) by steam, water, sunlight, chemical processes and/or (without
limitation) all other sources of power (whether now known or hereafter developed), all
distribution systems; all service systems; all supply systems; Fuel Transportation Facilities;
all power houses, gas plants, Space Satellites, street lighting systems, standards and other
equipment incidental thereto; all telephone, radio, television and other communication and
data transmission systems, air-conditioning systems and equipment incidental thereto,
water wheels, water works, water systems, steam heat and hot water plants, substations,
lines, service and supply systems, bridges, culverts, tracks, ice or refrigeration plants and
equipment, offices, buildings and other structures and the equipment
(Property Additions"
T4
sr.04
Property not included as Propcrty
thereof; all machinery, engines, boilers, dynamos, turbines, electric, gas and other machines,
prime movers, regulators, meters, transformers, generators (including, but not limited to,
engine driven generator and turbogenerator units), motors, electrical, gas and mechanical
appliances, conduits, cables, water, steam heat, gas or other pipes, and pipe lines (including,
but not limited to, pipe Iines for supplying fuel to the Company's plants), gas mains and
pipes, service pipes, fittings, valves and connections, pole and transmission lines, towers,
overhead conductors and devices, underground conduits, underground conductors and
devices, wires, cables, tools, implements, apparatus, storage battery equipment and all other
fixtures and personalty; all municipal and other franchises, consents or permits; all lines for
the transmission and distribution of electric current and other forms of energy, gas, steam
heat, water or communications and data for any purpose including towers, poles, wires,
cables, pipes, conduits, ducts and all apparatus for use in connection therewith; and other
property, real or personal, and improvements, extensions, additions, renewals or
replacements, acquired by the Company by purchase, consolidation, merger, donation,
construction, erection or in any other way whatsoever, or in the process of construction or
erection and used or usable or to be used in or in connection with the business or businesses
of generating, manufacturing, exploring for and developing, producing, transmitting,
transporting, distributing, supplying or managing the use of energy or fuel in any form,
including, without limitation, electricity or gas for light, heat, power, refrigeration or other
purposes or of generating, manufacturing, producing, transmitting, transporting,
distributing or supplying water for drinking, power, heat or other purposes or steam or hot
water for power, heat or other purposes.
The term "Property Additions" shall not, however, include (1) any shares of stock, bonds,
notes or other obligations or other securities or contracts, leases, or operating agreements,
bills, notes and other instruments, accounts receivable, general intangibles or choses in
action, or (2) except as herein otherwise specifically provided, going value, goodwill,
franchises or governmental permits or licenses granted to or acquired by the Company, as
such, separate and distinct from the property operated thereunder or in connection therewith
or incident thereto, or (3) any merchandise, equipment, apparatus, materials or supplies held
for the purpose of sale or other disposition in the usual course of business or for the pulpose
of repairing or replacing (in whole or in part) any rolling stock, buses, motor coaches,
automobiles or other
Additions
15
$r.04
vehicles or aircraft, and fuel, oil and similar materials and supplies consumable in the
operation of any of the properties of the Company; or rolling stock, buses, motor coaches,
automobiles or other vehicles, or any aircraft (other than Fuel Transportation Facilities and
Space Satellites), or (4) any natural gas wells or natural gas leases or natural gas
transportation lines or other works or property used primarily and principally in the
production of natural gas or its transportation, primarily for the purpose of sale to natural
gas customers or to a natural gas distribution or pipeline company, up to the point of
connection with any distribution system, or timber, minerals, mineral rights and royalties, or
(5) any property, the cost of acquiring, making or constructing of which is chargeable to
operating expenses.
(I) When any Property Additions are certified to the Trustee in any certificate in any
application under any of the provisions of this Indenture as the basis of one or more
Authorized Purposes (except in the case of the release of property, or the withdrawal of cash
representing the proceeds of insurance on damaged or destroyed property or Proceeds of
Released Property or payment of or on account of obligations secured by purchase money
mortgages, in each case on the basis of Property Additions acquired or constructed within
ninety (90) days prior to the date of the application for such release, or to the receipt by the
Trustee ofsuch cash, or subsequent to such application or receipt ofcash),
(A) there shall be deducted from the Cost or fair value thereof to the Company, as the
case may be (as of the date so certified), an amount equal to the Cost (or as to Property
Additions of which the fair value to the Company at the time the same became Funded
Property was less than the Cost as determined pursuant to this Section, then such fair
value in lieu of Cost) of all Funded Property of the Company retired (other than the
Funded Property, if any, in connection with the application for the release of which such
certificate is filed) and not theretofore deducted from the Cost or fair value to the
Company of Property Additions theretofore certified to the Trustee, and
(B) there may, at the option of the Company, be added to such Cost or fair value, as
the case may be, the sum of
(a) the principal amount of any obligations secured by purchase money mortgages
and any cash (other than proceeds
Provisions for netting Property
Additions
"Cost'
16
$r.04
of such purchase money obligations), not theretofore so added and which the Company
then elects so to add, received by the Trustee or the trustee or other holder of any
Qualified Lien, in either case representing the proceeds ofinsurance on, or ofthe release
or other disposition of, Funded Property retired;
@) ten-sevenths (10/7ths) of the principal amount of any bond(s) or fraction of a bond,
not theretofore so added and which the Company then elects so to add, the right to the
authentication and delivery of which under the provisions of Section 4.01, Section 5.04 or
Section 6.01 hereofshall have been waived as the basis ofthe release ofFunded Property
retired; and
(c) the Cost to the Company of any Property Additions (including Property Additions
subject to the lien of a Class "It'' Mortgage) not theretofore so added and which the
Company then elects so to add, to the extent that the same shall have been substituted
for Funded Property retired (including Funded Property subject to the lien of a Class "A"
Mortgage);
provided, however, that the aggregate of the amounts added under clause @) above shall in
no event exceed the amounts deducted under clause (A) above and provided further, that
neither any reduction in the Cost or book value of property recorded in the plant account of
the Company nor the transfer of any amounts appearing in such account to intangible and/or
adjustment accounts otherwise than in connection with actual retirements of physical
property abandoned, destroyed, released or disposed of, or retired from plant account, shall
be deemed to be Funded Property retired for the purposes ofthis Section.
(III) The term "Cost" with respect to Property Additions made the basis under any of the
provisions of this Indenture of one or more Authorized Purposes shall mean, in the case of
Property Additions subject to a Class "It'' Mortgage at the time of acquisition by the
Company, and so long as such Class "ll' Mortgage is in effect, the "Cost" for similar purposes
under such Class "A" Mortgage and., in the case of any other Property Additions, the sum of
(i) any cash forming a part of such Cost, (ii) an amount equivalent to the fair market value in
cash (as of the date of delivery) of any securities delivered in payment therefor or for the
acquisition thereo{ (iii) the principal amount of any prior lien bonds secured by prior lien
(other than a Class "/t'' Mortgage) upon such Property Additions, outstanding at the time of
their acquisition, unless
l7
$$r.04, 1.05
the Engineer's Certificate in subdivision (3) of Section 5.06 hereof provided for shall state
that the required amount has theretofore been deducted in compliance with the provisions of
Section 5.04 hereofwhen other Property Additions subject to such prior lien shall have been
made the basis under any of the provisions of this Indenture of one or more Authorized
Purposes, and (iv) the principal amount of any other indebtedness incurred or assumed as all
or part of the Cost to the Company of such Property Additions; provided, however, that,
notwithstanding any other provision of this Indenture, in any case where Property Additions
shall have been acquired (otherwise than by construction) by the Company without any
consideration consisting of cash, property or securities or the incurring or assumption of
indebtedness, no determination of Cost shall be required, and wherever in this Indenture
provision is made for Cost or fair value, the Cost, in such case, shall mean an amount equal
to the fair value thereof.
If any Property Additions are shown by the Engineer's Certificate provided for in
subdivision (3) ofSection 5.06 hereofto include property which has been used or operated by
others than the Company in a business similar to that in which it has been or is to be used or
operated by the Company, the Cost thereof may include the amount of cash or the value of
any portion of the securities paid or delivered for any rights and intangible property
simultaneously acquired for which no separate or distinct consideration shall have been paid
or apportioned, and in such case the term Property Additions as defined herein may include
such rights and intangible property.
For the purposes ofthe deductions required by this Section, the Cost and/or the fair value
to the Company of Funded Property retired shall be determined as follows: (aa) in the case of
property which at any time is or was Funded Property under a Class'.lt''Mortgage, the Cost
thereof shall be the "Cost'' for similar pulposes under such Class "l[" Mortgage; and @b) in
the case of any other Property Additions retired, the Cost or the fair value thereof to the
Company shall be the Cost or the fair value thereof to the Company at the time such
Property Additions became Funded Property.
Section 1.05 The term "Funded Property'' shall mean:
(1) all property, except property expressly excepted from the Lien of this Indenture,
owned by Pacific Power & Light Company on July l, L947, or owned by Utah Power & Light
Company on December 1, 1943; and any property subject to any other Class "/t''
"Funded Property"
l8
$1.0s
Mortgage that was funded (i.e., not available for Authorized Purposes) under such Class "A"
Mortgage immediately after such Class "/t''Mortgage came into existence;
(2) all Property Additions to the extent that the same shall have been made the basis of
the authentication aud delivery ofbonds under this Indenture;
(3) all Property Additions to the extent that the same shall have been made the basis of
the release ofproperty from the Lien ofthis Indenture, subject, however, to the provisions of
Section 13.03 hereof;
(4) all Property Additions to the extent that the same shall have been substituted
(otherwise than under the release or cash withdrawal provisions hereof) for Funded Property
retired;
(5) all Property Additions to the extent that the same shall have been made the basis of
the withdrawal of any Funded Cash, as hereinafter defined, held by the Trustee hereunder
or by the trustee or other holder ofa Qualified Lien as hereinafter defined, subject, however,
to the provisions of subdivision (III) of Section 9.05 hereof and clause (a) of Section 13-06
hereof, and except to the extent that any such Property Additions shall no longer be deemed
to be Funded Property in accordance with the provisions of clause ft) of Section 13.06 hereof;
(6) all property to the extent that the same shall have been made the basis of the
authentication and delivery of Outstanding Class "lt'' Bonds, or that shall have been made
the basis of the authentication and delivery of retired Class "A" Bonds that were utilized to
issue Outstanding Class "A" Bonds (e.g., as contemplated by Section 29 of the Pacific
Mortgage or Section 29 of the Utah Mortgage);
(? all property to the extent that the same shall have been made the basis of the release,
or substituted for cash made the basis of the release, from the lien of a Class "A" Mortgage of
property that had been made the basis of the authentication and delivery of Outstanding
bh". "A' Bonds, or retired Class "A" Bonds that were utilized to issue Outstanding Class "1t''
Bonds, or that had been substituted for such property; and
(8) all property to the extent that (a) the same shall have been made the basis of the
authentication and delivery of either Class "lf' Bonds held by the Trustee hereunder as
specifi.ed in an Officers' Certificate pursuant to clause (b) of Section 14.01 hereof, or retired
19
$r.05
Class "lt'' Bonds that were utilized to issue the Class "At'' Bonds specified in such an
Of6.cers' Certificate, or (b) the same shall have been made the basis of the release, or
substitution for cash made the basis of the release, from the lien of a Class "A"
Mortgage of property that had been the basis of the authentication and delivery of
Class ".41' Bonds specified in such Offrcers' Certificate, or that had been substituted for
such property.
In the event that in any certificate filed with the Trustee in connection with any of the
transactions referred to in clauses (2), (3), (5), (6) and (7) of this Section, only a part of the
Cost or fair value of the Property Additions described in such certificate shall be required for
the purposes of such certificate, then such Property Additions shall be deemed to be Fund.ed.
Property only to the extent so required for the purpose ofsuch certificate.
All Funded Property that shall be retired on the books of the Company from plant
account or abandoned, destroyed, released or otherwise disposed of shall for the purpose of
Section 1.04 hereof be deemed Funded Property retired and for other purpos"s of this
Indenture shall thereupon cease to be Funded Property but as in this Indenture provided
may at any time thereafter again become Funded Property.
The term "Funded Bonds" shall mean Class "/t''Bonds deposited hereunder.
The term "Funded Cash" shall mean:
(a) cash, held by the Trustee hereunder, or by the trustee or other holder of a QualifiedLien as hereinafter defined, to the extent that it represents the proceeds of insurance on orthe release of or the taking by eminent domain of property, or the proceeds of the release of
obligations secured by purchase money mortgage which obligations have been delivered tothe Trustee or to the trustee or other holder of a Qualified Lien pursuant to Article XIII
hereof and used as a credit in any application for the release of property hereund.er, or the
proceeds of payment to the Trustee or to such other trustee or holder on account of theprincipal of obligations secured by purchase money mortgage which obligations have been
delivered to it pursuant to Article XIII hereof and used as a credit in any application for the
release of property hereunder;
sfunded Bonds"
"Funded Cash"
"Excepted Encumbrances"
20
$$r.05, 1.06
O) any cash deposited with the Trustee under Section 7.01 and/or 9.13 hereof; and
(c) any cash received by the Trustee from the purchase, redemption, or payment at
maturity of Funded Bonds.
Section 1.06 The term "Excepted Encumbrances" shall mean as of any particular time
any of the following:
(a) Iiens for taxes, assessments or governmental charges not then delinquent and liens
for worker's compensation awards and similar obligations not then delinquent and
undetermined liens or charges incidental to construction, and liens for taxes, assessments or
governmental charges then delinquent but the validity of which is being contested at the
time by the Company in good faith as provided in Section 9.04 hereof;
(b) any liens securing indebtedness, neither assumed nor guaranteed by the Company
nor on which it customarily pays interest, existing upon real estate or rights in or relating to
real estate acquired. by the Company for substation, transmission line, transportation line,
distribution line or right of way pu{poses;
(c) rights reserved to or vested in any municipality or public authority by the terms of
any right, power, franchise, grant, Iicense or permit, or by any provision of law, to terminate
"r"h "ight, power, franchise, grant, Iicense or permit or to purchase or recapture or to
designate a purchaser ofany ofthe property ofthe Company;
(d) rights reserved to or vested in others to take or receive any part ofthe power, gas, oil
or other minerals or timber generated, developed, manufactured or produced by, or grown on,
or acquired with, any property of the Company;
(e) easements, restrictions, exceptions or reservations in any property and/or rights of
way of the Company for the purpose of roads, pipe lines, transmission lines, distribution
lines, removal of coal or other minerals or timber, and other like purposes, or for the joint or
common use of real property, rights of way, facilities and/or equipment, and defects,
irregularities and deficiencies in titles of any property and/or rights ofway, whether in effect
at the time the Company acquired such property or right of way or thereafter created or
suffered by the Company, which do not materially impair the use of such property and/or
rights of way for the purposes for which such property and/or rights of way are held by the
Company;
2t
$sr.06
(f) rights reserved to or vested in any municipality or public authority to control orregulate any property of the Company, or to use such property in a manner which does notmaterially impair the use of such property for the purposes for which it is held by the
Company;
(g) any obligations or duties, affecting the property of the Company, to any municipality
or public authority with respect to any franchise, grant, license or permit; and
ft) any controls, liens, restrictions, regulations, easements, exceptions or reservations of
any governmental authority applying to the property or facilities of the Company, including,without limiting the generality of the foregoing, those which apply particularly to Space
Satellites.
The term "Qualified Lien" shall mean any mortgage or other lien (not included in theterm Class "A" Mortgage nor in the term Excepted Encumbrances) prior to the Lien of thisIndenture, existing at any particular time upon any Property Additions (so long as suchProperty Additions remain subject to the Lien hereof) then or theretofore mad.e the basisunder any ofthe provisions ofthis Indenture for one or more Authorized Purposes.
The term "Qualified Lien Bonds" shall mean bonds, obligations or other principal
indebtedness secured by a Qualified Lien and payable in United states dollars.
The term "Outstandint'' with respect to Qualified Lien Bonds shall mean as of anyparticular time all Qualified Lien Bonds theretofore authenticated and delivered by thetrustee or other holder of the Qualified Lien securing the same and/or, if there be no suchtrustee or other holder, all Qualified Lien Bonds theretofore made and delivered by themaker (or his, her or its successor) of such Qualified Lien, except (A) Qualified Lien Bonds
theretofore paid, retired, redeemed, discharged or cancelled, @) Qualified Lien Bonds heldhereunder, (C) Qualified Lien Bonds held by the trustee or other holder of a Qualified Lien(under conditions such that no transfer of ownership or possession of such Qualified Lien
Bonds by the trustee or other holder of such Qualified Lien is permissible thereunder exceptupon a default thereunder or to the Trustee hereunder to be held subject to the provisions ofArticle X hereof or to the trustee or other holder of a Qualified Lien for cancellalion or to beheld
'Qualilied Lien"
"Qualified Licn Bonds,'
"Outstrnding" (with r$pect to
Quelified Lien Bonds)
22
$$1.06, 1.07
"Net Earning Certifi cate"
uncancelled under the terms of a Qualified Lien under like conditions), @) Qualified Lien
Bonds for the purchase, payment or redemption of which moneys in the necessary amount
shall have been depositea wittr or be held, with irrevocable direction so to apply, by the
Trustee hereunder or by the trustee or other holder of a Qualified Lien; provided that, in
the case ofredemption, tt" notice required therefor shall have been given or have been
provided for, and @) Qualifiefl Lien Bonds upon transfer of which or in exchange or
substitution for and/or in lieu of which other Qua1ifred Lien Bonds have been
authenticated and delivered or made and delivered under any of the provisions of the
Qualified Lien securing such Qualified Lien Bonds.
Section 1.02 The term "Net Earning Certificate" shall mean a certificate signed by an
Authorized Executive Officer of the Company and an accountant, who unless required to
be independent, may be an officer or employee of the Company, stating:
(A) the Adjusted Net Earnings of the Company for a period of twelve (12) consecutive
calenitar -orrth, within the fifteen (15) calendar months immediately preceding the first
day of the month in which the application for the authentication and delivery under this
Indenture of bonds then applied for is made, specifying:
(1) its operating revenues (which may include revenues of the Company subject
when collectld to possible refund at a future date) with the principal divisions thereof;
(2) its operating expenses, with the principal divisions thereof, including, without
limitation, ,U "*p"'t."" and accruals foi repairs and maintenance plus the lesser of
(x) two per centum (2%) of the average amount for such period of twelve (12)
"orr""rrtirr" calendar months in plant account representing depreciable property owned
by the company or (y) all appropriations out of income for property retirement in
respect of all property owned by the Company;
(3) the amount remaining after deducting the amount required to be stated in such
certidcate by clause (2) ofthis Section from the amount required to be stated therein by
clause (1) ofthis Section;
(4) its rental revenues (net) not otherwise included in such certificate;
Adjusted Net Earnings
23
91.07
(5) the sum of the amounts required to be stated in such certificate by clauses(3) and (4) of this Section;
(6) its other income (net);
(7) the sum of the amounts required to be stated in such certificate by clauses(5) and (6) of this Section;
(8) the amount, if any, by which the aggregate of (a) such other income (net) and(b) that portion of the amount required to be stated in such certificate by clause 1S; ofthis Section which, in the opinion ofthe signers, is directly derived from ihe op"*"iiorr"of property (other than paving, grading and other improvements to, under or uponpullic highways, bridges, parks or other public properties of analogous character) notsubject to the Lien of this Indenture at the date of such certificate, exceeds fifteen percentum (l5o/o) of the sum required to be stated by clause (7) of this Section; provided,
however, if the amount required to be stated in such certificate by clause (i) of tnisSection includes revenues from the operation ofproperty not subjecf to the Lien ofthisIndenture, there shall be included in the calculation to be made pursuant to this clause(8) such reasonable interdepartmental or interproperty ""r"rrr". and expenses betweenthe lVlortgaged and Pledged Property and the property not subject to the Lien hereof asshall be allocated to such respective properties by the Company; and
(9) the Adjusted Net Earnings of the Comrany for such period of twelve (12)consecutive calendar months (being the amount remaining after deducting in suchcertificate the amount required to be stated by clause (8) of this Section from the sumrequired to be stated by clause (7) ofthis Section);
@) the Annual Interest Requirements, being the interest requirements, if any, fortwelve (12) months upon:
(i) all bonds Outstanding hereunder at the date of such certificate, except any forthe payment of which the bonds applied for are to be issued; provided that, ii any suchseries of Outstanding bonds bears interest at varying rates, then the interest on suchseries of bonds shall be computed at the current rate then in effect; and if suchOutstanding bonds have been issued after the end of such twelve (12) consecutivecalendar months, then computed at the initial rate upon issuance;
Annual Interest
Bequirements
24
sr.07
(ii) all bonds then applied for in pending applications, including the application in
connection with which such certificale is made, computed at the initial rate upon
issuance;
(iir) all Qualified Lien Bonds which will be outstanding immediately after the
authentication of the bonds then applied for in pending applications, including the
application in connection with which such certificate is made; provided that, o- 1t,
qrrufin"a Lien Bonds bear interest at varying rates, then the-interest on such Qualified
Lien Bonds shall be computed at the ..r"*"* rate then in effect; and if such Qualified
Lien Bonds have been issued after the end of such twelve consecutive calendar months'
then computed at the initial rate upon issuance;
(iv) all Class "A" Bonds Outstanding under Class "/t'' Mortgages at the date of such
certificate, except any held hereunder and except any for the payment ofwhich the bonds
applied for are io be issued; provided that, if any Class "1t'' Bonds bear interest at varying
raies, then the interest on such Class "It'' Bonds shall be computed at the current rate
then in effect; and, if class "1t'' Bond.s have been issued after the end of such twelve
consecutive calendar months, then computed at the initial rate upon issuance; and
(v) the principal amount of all other indebtedness (except class "A'' Bonds held
hereunder and except indebtedness for the payment ofwhich the bonds applied for are to
be issued and indebledness for the purchase, payment or redemption of which moneys in
the necessary amount shall have been deposited with or be held by the Trustee or the
trustee or other holder ofa Qualified Lien or lien prior to the Lien ofthis Indenture upon
property subject to the Lien of this Indenture with irrevocable direction so to apply
it "^"u-"; provided that, in the case of redemption, the notice required therefor shall have
u"", glr", or have been provided), outstantling in the hands of-the public on the date of
such
"certifrcate and secured by lien prior to the Lien of this Indenture upon property
subject to the Lien of this Inhenture, if said indebtedness has been assumed by the
company or if the company customarily pays the interest upon the principal thereof'
25
s1.07
In calculating such Adjusted Net Earnings, all the Company's expenses for taxes (otherthan income, profits and other taxes measured by, or dependent on, net income),
assessments, rentals and insurance shall be included in its operating expenses, or otherwisededucted from its revenues and income; provided, however, that no expenses orprovisions forinterest on any of its indebtedness or for the amortization of debt discount, premium and
expense, or loss on reacquired debt, amortization of property (other than depreciation orother similar provisions for property retirement), or for other amortization, o, ib. any otherextraordinary charge to income of whatever kind or nature, or for refunds of revenuespreviously collected by the Company subject to possible refund, or for any improvement orsinking fund or other device for the retirement of any indebtedness, shall be required to beincluded in operating expenses to be deducted from, or shall be otherwise required to bededucted from, its revenues or its other income and no extraordinary items of any kind ornature shall be included in calculating such Adjusted Net Earnings.
If any of the property of the Company owned by it at the time of the making of any NetEarning Certificate shall have been acquired during or after any period for which AdjustedNet Earnings of the Company are to be computed, the Adjusted Net Earnings oi suchproperty (computed in the manner in this Section provided for the computation of theAdjusted Net Earnings of the Company) during such period or such part oi such period. asshall have preceded the acquisition thereo{ to the extent that the same have not otherwise
been included and unless such property shall have been acquired in exchange or substitution
for property the earnings of which have been included, may, at the option oflhe Company, beincluded in the Adjusted Net Earnings of the Company for all purposes of this Indenture,and shall be included ifsuch property has been operated as a separate unit or ifthe earningstherefrom are readily ascertainable.
In any case where a Net Earning Certificate is required as a condition precedent to theauthentication and delivery of bonds, such certificate shall also be made and signed. by anindependent public accountant, if the aggregate principal amount of bonds then applied forplus the aggregate principal amount of bonds authenticated and delivered hereund-er sincethe commencement of the then current calendar year (other than those with respect to which
a Net Earning Certificate is not required, or with respect to which a Net Earning Certificatemade and
Calculation of operating
expenses to be deducted
Adjusted Net Earnings ofproperty acquired during orafler earnings period
Requirement for independentpublic accountant
26
9r.07; Art. II, $2.0r
"appropriations out of income
for property retirement"
Calculations ofAnnual
Interest Requirements of
bonds if interest PaYable
solely in foreign coin or
currency
Amount ofbonds which maY
be secured hereby
signed by an independent public accountant has previously been furnished to the Trustee) is
tein per centum (fbX) or more of the aggregate amount of the bonds at the time Outstanding;
but no Net Earning Certificate need be made and signed by any person other than an
Authorized Executive Officer of the Company and an accountant, as to dates or periods not
covered by annual reports required to be filed by the Company, in the case of conditions
precedeniwhich depend upon; state of facts as of a date or dates or for a period or pedods
different from that required to be covered by such annual reports.
Each such certificate shall include the statements required by Section 22.05 hereof.
The phrase "appropriations out of income for property retirement", and other phrases of
similar import .t "tt
-U" deemed to include not only charges made upon a retfuement
accounting theory but also charges made on any depreciation or other accounting theory
intended to provide for retirement ofproperty.
Unless otherwise specifically provided with respect to a series of bonds, if interest on any
bonds outstanding hereunder is payable solely in the coin or currency of a foreign nation,
then the Annual Interest Requirements for such bonds shall be the Company's United States
dollar obligation therefor itt the applicable currency exchange agreement required by
subsection -Z.OS (fA) hereof or, if such Lxchange agreement is not in effect, then the Annual
Interest Requirements for such bonds shall be based upon the Federal noon buying rate (on a
date within 10 days prior to the date of the application for the authentication and delivery
under this Indenture of bonds in connection with which such Net Earning Certificate is
delivered) of such foreign coin or currency in The city of New York, New York (or, if no such
noon buying rate is, aft-eryeasonable inquiry, determinable by the signers of such certificate,
then such other rate as they shall reasonably determine)'
ARTICLE II
Forms, Executiou, Registration, Exchange and
Other General Provisions as to Issue of Bouds
Section 2.01 The aggregate principal amount of bonds which may be authenticated and
delivered from time to time under this Indenture is unlimited'
27
$$2.02,203
Section 2.02 Nothing in this Indenture shall limit the power of the Board of Directors(in conformity with applicable law) to fix the price at which the bonds authenticated and
delivered under any of the provisions of this Indenture may be issued, exchanged., sold or
disposed of, but any or all of said bonds may be issued, exchanged, sold or disposed of upon
such terms and for such consideration as the Board of Directors may deem fit.
Section 2.03 The bonds may be issued in one or more series pursuant to Articles IV, V,VI and VII hereof. Other than the First Series of bonds issued pursuant to Article III hereof,
each such series of bonds, the form or forms thereof, the terms and conditions thereof, and
the following other matters in connection therewith shall be established in or pursuant to
one or more Resolutions and (to the extent not set forth in such Resolutions) detailed in an
accompanying Officers' Certificate (which shall also certifu all actions taken pursuant to
such Resolutions), and/or shall be established in one or more indentures supplemental
hereto, prior to the initial issuance ofbonds ofsuch series:
(2) any limit upon the aggregate principal amount of the bonds of that series which may
be authenticated and delivered under this Indenture (except for bonds authenticated and
delivered upon registration of, transfer o( or in exchange for, or in lieu of, other bonds ofthat
series pursuant to Section 2.08, 2.09,2.1L,2.12, L2.04 or 21.0g hereofl;
(5) the place or places where the principal of (and premium, if any) and interest, if any,
on the bonds ofthat series shall be payable;
(f) the title of the bonds and the series in which such bonds shall be included (which (1) ritle and series
shall distinguish the bonds ofthe series from all other bonds);
Board ofDirectors may fix
terms and consideration for
issue, etc. ofbonds
Series ofbonds and
establishment thereof
Matters to be established:
(2) Limit on aggregateprincipal amount
(6) Place or places forpayment
(3) the date or dates on which the principal of the bonds of that series is payable or the (3) Maturitv date or dates
manner of determining the same;
(a) the rate or rates at which the bonds of that series shall bear interest, if any, or the (4) Interestrate orrates,etc.
manner of determining the same, the date or dates from which such interest shall accrue, orthe manner of determining the same, the date or dates on which such interest shall bepayable and the date or dates for the determination of persons to whom interest shall be
payable on any such date, and the basis upon which interest shall be calculated ifother than
that of a 360-day year of twelve 30-day months;
(6) Optional redemption or
prepayment
(7) MandatoryredemPtion,
prepaJment or purchase
(8) Denominations if not a
multiple of $r,000
(9) Portion ofseries Payable
upon acceleration if
other than princiPal
amount
(10) Additional events of
default
(ll) Defeasance terms
(12) Obligation of Company
regarding payment
without tax deduction
and./or reimbursement;
creation of sinking fund;
conversion of bonds
(13) Exchange privileges
28
(6) the period or periods within which, the price or prices at which and the terms and
coniiiions ,rpo1 whi"h the bonds of that series may be redeemed or prepaid, in whole or in
part, or the manner of determining the same, at the option of the Company;
(7) the obligation, if any, of the company to ledeem, prepay or purchase bonds of that
series pursuant to any mandatory redemption, sinking fund or analogous provisions 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 bonds of that series shall be redeemed,
prepaid or purchased, in whole or in part, or the manner of determining the same, pursuant
to such obligation;
(8) if other than denominations of $1,000 and any multiple thereof, the denominations in
which the bonds of that series shall be issuable;
(g) if other than the principal amount thereof, the portion of the principal amount of the
bond.s of that series which shall be payable upon declaration of acceleration of the maturity
thereofpursuant to Section 15.03 hereof;
(10) any event of default with respect to the bonds of that series if not set forth in
Article XV hereof;
(1 1) terms relating to the defeasance of bonds of that series, if any;
(12) any obligation of the Company for the payment of the principal of the bonds of that
series or the interest thereon, or both, without deduction for taxes and/or for the
reimbursement of taxes in case of payment by the bondholders, it being agreed that such
obligation may be limited to taxes imposed by any taxing authorities of a specified class and
may- exclude from its operation or be limited to any specified tax or taxes or any portion
thereof; and/or expressing any obligation of the Company for the creation of a sinking fund or
other analogous device for the bonds of that series; and/or expressing an obligation of the
Company to permit the conversion of bonds of that series into capital stock of the Company
or ofany other corporation ofany designated class or classes;
(18) any privilege ofthe bondholders ofthat series to make, at a specified place or places,
any or all oftn" foio*ing exchanges, namely, exchanges ofcoupon bonds for fully registered
Uonds; exchanges of fuIIy registered bonds for coupon bonds; exchanges of coupon bonds for
coupon bonds of other authorized denominations; exchanges of fully registered bonds for fully
registered bonds of
29
$2.03
other authorized denominations; exchanges ofbonds ofone series for bonds ofanother series;and such privilege of exchange may in any case be made subject to such cond.itions,
limitations or restrictions as the Board of Directors or officers of the Company pursuant toauthority delegated by the Board of Directors may determine and the privilege of exchange
may in any case be conferred upon the holders of bonds of one or more denominations andwithheld from the holders of bonds of other denominations of the same series and may in any
case be conferred on the holders of fully registered bonds and withheld from the holders of
coupon bonds or vice versa;
(14) provisions acceptable to the Trustee for fully registered bonds of that series that may
be registered as to the payment of principal to one holder and to the payment of interest to
another holder, and for different rights of such holders with respect to redemption of such
bonds, voting rights, remedies upon default and other matters;
(15) provisions for compliance with any law or with any rules or regulations madepursuant thereto or with the rules or regulations of any stock exchange or conforming to
usage;
(16) the coin or currency (which need not be coin or currency of the United States of
America) in which the principal of and interest on such bonds shall be paid; provided,
however, and notwithstanding any provision in this Indenture to the contrary, no bond.s shall
be issued hereunder which the Company shall be required to pay in a coin or currency other
than that of the United States of America unless the Company shall have deposited with theTrustee, to be held as part of the Mortgaged and Pledged Property, a currency exchange
agreement with an entity having, at the time of such deposit, at least as good financial rating
as that ofthe Company that, in the opinion ofan independent accountant, appraiser or other
expert as certified in writing to the Trustee, gives the Company at least as much protection
against currency exchange fluctuation as is usually obtained by similarly situated borrowers;
@or purposes of calculations under this Indenture (including calculations of principal
amount under Articles IV, V, VI and VII), the principal amount of any bonds Outstanding
hereunder payable in a foreign coin or currency shall be the Company's United States dollar
obligation therefor in the applicable currency exchange agreement entered into pursuant to
the foregoing subsection (16).
(14) Splitting ofinterest andprincipal payrnents
(15) Compliance with laws,
rules, regulations or
usage
(16) Coin or currency in
which principal and
interest paid; currency
exchange agreement
Calculation of principal of
bonds payable in foreign coin
or currency
30
(17) Uncertificated system of
registration
(lE) Other tems
Bonds ofsame
series substantially identical
Bonds of same series may be
issued at different times;
series may be reopened and
aggregate PrinciPaI
amount increased
Bonds and coupons exPressed
in one or more foreign
languages
Kinds and denominations of
bonds
Dates, interest, etc.
of registered bonds
s$2.03, 2.04, 2.05, 2.06
(17) any uncertificated system ofregistration utilized for the bonds ofthat series; and/or
(18) any other terms of the bonds of that series (which terms shall not be inconsistent
with the provisions of this Indenture)'
All bonds of any one series shall be substantially identical except as otherwise
established in accordance with this Section 2.03. Atl bonds of any one series need not be
issued at the same time, and, unless otherwise established in accordance with this
Section 2.03, a series may be reopened and the aggregate principal amount of bonds of that
series which may be authenticated and delivered under this Indenture increased for
issuances ofadditional bonds ofthat series.
Section 2.04 The bonds and coupons of any series may be expressed in one or more
foreign languages, if also expressed in the English language. The English text shall govern
the construction thereofand both or all texts shall constitute but a single obligation.
Section 2.0b Any series of bonds may be executed, authenticated and delivered
originally as coupon bonds and/or as fully registered bonds in such denomination or
denominations as established in accordance with Section 2.03 with respect to a series of
bonds.
Section 2.06 Unless otherwise established in accordance with Section 2.03 with respect
to a series of bonds, fully registered bonds shall be dated as of the date of authentication.
Unless other provisions (including, but not limited to, provisions establishing record dates for
the payment of interest) are specifically provided with respect to a series of bonds, fully
registered bonds shall bear interest from the beginning ofthe current interest period for that
,"1u.; provided, however, that if any fully registered bond shall be authenticated and
delivered upon a transfer of, or in exchange for or in lieu of, any bond or bonds upon which
interest is in default, it shall bear interest from the last preceding date to which interest
shall have been paid on the bond or bonds in respect of which such fully registered bond shall
have been delivered, unless otherwise specifically provided as aforesaid with respect to a
series ofbonds.
Coupon bonds shall be dated as of such date as may be established in accordance with
Section2.03 with respect to a series of bonds and as designated in the form established for
such series of coupon bonds.
3l
$s2.07,2.08
Section 2.07 Any bond may have imprinted thereon or included therein any legend or Legends on bonds
legends required in order to comply with any law or with any rules or regulations made
pursuant thereto or with the rules or regulations of any stock exchange or to conform to
usage, and the Board of Directors by Resolution may at any time amend the form of any
Iegend to be used on bonds then Outstanding so as to comply with any such law, rule or
regulation, or so as to conform to usage.
Section 2.08 Unless otherwise established in accordance with Section 2.03 with respect
to a series of bonds, in all cases in which the privilege of exchanging bonds exists and is
exercised, the bonds to be exchanged shall be surrendered at such place or places as shall be
designated by the Board of Directors by Resolution for that pu{pose, with all unmatured
coupons appertaining thereto (in the case of coupon bonds) and the Trustee shall
authenticate and the Company shall deliver in exchange therefor the bond or bonds which
the bondholder making the exchange shall be entitled to receive, having attached thereto, in
the case ofcoupon bonds, all unmatured coupons appertaining thereto. In case at the time of
any such exchange, interest on the bonds ofsuch series is in default, all coupon bonds ofsuch
series surrendered for exchange and delivered in exchange shall be accompanied by all
matured coupons in default unless such coupons have heretofore been previously
surrendered. All bonds go surrendered for exchange shall be in bearer form, or ifregistered,
accompanied by a written instrument or instruments of transfer wherever required by the
Company duly executed by the registered owner or his, her or its duly authorized attorney.All bonds so surrendered for exchange and the coupons appertaining thereto shall be
cancelled by the Trustee. Upon any transfer of bonds as permitted by the next succeeding
Section, and upon any exchange of bonds, the Company may make a charge therefor
sufficient to reimburse it for any tax or taxes or other governmental charge and in addition
may charge a sum not exceeding a sum, ifany, provided as a term ofsuch series ofbonds for
each bond authenticated and delivered upon any such transfer or exchange, which sum shall
be paid by the party requesting such transfer or exchange as a condition precedent to the
exercise of the privilege of making such transfer or exchange. The Company shall not be
required to make transfers or exchanges of bonds of any series for a period of fifteen (15)
days next preceding any interest payment date ofsaid series (unless such series has a record
date for the payment ofinterest), or next preceding any designation ofbonds ofsaid series to
be
Surrender and cancellation of
bonds upon exchange
Authentication and delivery
ofbonds
Charges
Books for registration and
transfer ofbonds
Begistration of coupon bonds
Transfer of fully registered
bonds
Cancellation of registered
bonds
Execution of bonds
Execution by fomer officers
Matured coupons may be
detached before
authentication of bonds
32
$$2.08, 2.0e, 2.r0
redeemed. The Company shall not be required to make transfers or exchanges of any bonds
designated in whole or in part for redemption.
Section 2.0g The Company shall keep, at such place or places as shall be designated for
the purpose, books for the registration and transfer ofbonds issued hereunder, which, at all
reasona-ble times, shall be open for inspection by the Trustee; and upon presentation ofbonds
duly endorsed for such purpose at any such place or places, the Company will register or
cause to be registered therein, and permit to be transferred thereon, under such reasonable
regulations as it may prescribe, any bonds issued under this Indenture and entitled to
re;istration or transfer at such offrce. Upon the registration of any coupon bond as to
principal, the fact of such registration shall be noted on such bond. Upon the transfer of any
iully registered bond, the Trustee shall authenticate and the Company shall issue in the
name oi the transferee or transferees a new fully registered bond or new fully registered
bonds of the same series for a like principal amount in authorized denominations. All fully
registered bonds so surrendered for transfer shall be cancelled by the Trustee.
Section 2.10 All bonds authenticated and delivered hereunder shall, from time to time,
be executed on behalf of the Company by an Authorized Executive Officer of the Company,
whose signature may be facsimile, and its corporate seal shall be thereon impressed or
imprinted and attested by its Secretary or one of its Assistant Secretaries, whose signature
may be facsimile. The coupons to be attached to coupon bonds shall bear the facsimile
signature of an Authorized Financial Offrcer of the Company. In case any of the offrcers who
shall have signed any bonds or attested the seal thereon, or whose facsimile signature
appears on any coupon, shall cease to be such officers of the Company before the bonds so
signed and/or sealed shall have been actually authenticated and delivered by the Trustee or
issued by the Company, such bonds nevertheless may be authenticated, delivered and/or
issued with the same force and effect as though the person or persons who signed such bonds
and/or attested the seal thereon and/or whose facsimile signature appears on any coupon had
not ceased to be such officer or officers of the Company. Before authenticating any coupon
bonds, the Trustee shall cut off and cancel all matured coupons thereto attached (except as
otherwise provided or permitted in Sections 2.08 and 2.12 hereofl.
33
$$2.rr,2.12
Section 2.11 There may be authenticated and delivered and issued from time to time inlieu of (or in exchange for) any definitive bond or bonds issued or issuable under thisIndenture one or more temporary bonds substantially ofthe tenor ofthe bonds hereinbefore
established, with or without one or more coupons, and with or without the privilege ofregistration as to principal only, or as to both principal and interest, and such temporary
bond or bonds may be in such denomination or denominations as the Board of Directors may
determine. Until a definitive bond or bonds secured hereby are delivered. in exchangetherefor, each such temporary bond or bonds shall be entitled to the Lien and benefit ofthis
Indenture. Upon the exchange by the Company of definitive coupon bonds or definitive fullyregistered bonds for temporary bonds (which exchange the Company shall make on requesto( and without charge to, the holder, when definitive bonds are ready for delivery) suchtemporary bond or bonds and any unmatured coupons appertaining thereto shall be
cancelled by the Trustee. When and as interest is paid upon presentation of any unregistered.
temporary bond without coupons, the fact ofsuch payment shall be noted by the Trustee or apaying agent thereon and interest due on any temporary bond which is represented by acoupon shall be paid only upon presentation and surrender of such coupon for cancellation.Unregistered temporary bonds without coupons of any series shall bear interest from the
beginning of the current interest period for bonds of that series in which such unregistered
temporary bonds without coupons shall be authenticated.
Section2.12 Upon receipt by the Company and the Trustee of evidence satisfactory to
them of the theft, loss, destruction or mutilation of any bond Outstanding hereunder and/or
the coupons appertaining thereto, and of indemnity satisfactory to them, and upon payment,if the Company or the Trustee shall require it, of a reasonable charge and uponreimbursement to the Company and the Trustee of all reasonable expense incid.ent thereto,and upon surrender and cancellation of such bond, if mutilated, and the couponsappertaining thereto, if any, the Company may execute, and the Trustee shall thereupon
authenticate and deliver, a new bond of lile tenor and of the same series with all unpaid
coupons, ifany, appertaining thereto in lieu ofsuch stolen, lost, destroyed or mutilated bondand coupons, if any, or if any such bond or any coupon shall have matured or be about tomature, and upon the holdey's compliance with the provisions of this Section, the Company
may pay the same without surrender thereof instead of issuing a substituted bond or coupon.Any indemnity bond shall name as obligees the Company, the Trustee, and, if requested by
the Company, any paying agent.
Temporary bonds may be
issued
Temporary
hereby
bonds are secured
Cancellation of temporary
bonds
Palment of interest on
unregistered temporary bonds
Bonds issuable to replace
stolen, lost, destroyed ormutilated bonds
Trustee's certificate
Bonds of the First Series
Date of Maturity
Interest Rate
Date ofissue
Rodemption
Exchangeability
34
$2.18; Art. III, S3.0r
Section 2.13 No bond shall be secured hereby unless there shall be endorsed thereon
the certifrcate of the Trustee that it is one of the bonds (or temporary bonds) of the series
therein designated, herein provided for; and such certificate on any such bond shall be
conclusive evidence that such bond has been duly authenticated and delivered by the
Trustee.
ARTICLE III
First Series of Bouds
Section 3.01 There shall be a series of bonds in the principal amount of $500,000
designated "10.45% Seriesdue January9, 1990" (herein sometimes referred to as the "First
Seriis"), each of which shall also bear the d.escriptive title "First Mortgage and Collateral
Trust Bond". The form, terms and conditions thereof shall be established in or pursuant to a
Resolution. Bonds of the First Series shall mature on January 9, 1990, and shall be issued as
fully registered bonds; they shall bear interest at the rate of ten and forty-five hundredths
p"*""".ri.r* (10.45%) per annum, payable on July9, 1989 and at maturity; the principal of
and interest on each said bond to be payable at the ofEce or agency of the Company in the
Borough of Manhattan, The City of New York, New York, in such coin or currency of the
United States of America as at the time of payment is legal tender for public and private
debts. Bonds of the First Series shall be dated as in Article II hereof provided.
(I) Bonds of the First Series shall not be redeemable prior to maturity.
(II) At the option of the registered owner, any bonds of the First Series, upon surrender
thereof for cancellation, at the offrce or agency of the Company in the Borough of Manhattan,
The City of New York, New York, shall (subject to the provisions of Article II hereof) be
exchangeable for a like aggregate principal amount of bonds of the same geries of other
authorized denominations.
(I[) Bonds of the First Series in the aggregate principal amount of Five Hundred
Thousand Dollars ($500,000) shall be executed by the Company and delivered to the Trustee
and shall be authenticated by the Trustee, and delivered (whether before or after the filing or
record.ing hereof), in accordance with the written order or orders of the Company signed by
an Authorized Executive Officer of the Company, and by its Secretary or an Assistant
Secretary or an Authorized Financial Offrcer of the Company.
35
Art. IV, $4,0r
ARTICLE IV
Issuance of Bonds upon Deposit of
Class ".f'Bonds with Trustee
Section 4.01 O The Trustee shall, from time to time, upon the written order or orders
of the Company signed by an Authorized Executive Officer of the Company, and by its
Secretary or an Assistant Secretary or an Authorized Financial Offrcer of the Company,
authenticate and deliver bonds hereunder of one or more series of a principal amount not
exceeding the principal amount of Class "/t'' Bonds delivered to the Trustee hereunder and
maturing on the maturity date of the bonds being issued hereunder on the basis of such
Class "/t''Bonds, but only after the Trustee shall have received the following:
(1) the Resolution provided for in subdivision (1) of Section 5.06 hereof;
(6) the Class "/t'' Bonds being made the basis for the authentication and delivery of the
bonds then applied for (whether then or theretofore delivered to the Trustee).
(2) the Officers' Certificate provided for in subdivision (2) of Section 5.06 hereof and, in
the case ofbonds being issued to refund bonds issued hereunder, in Section 11.05 hereof;
(l) Besolution
(2) Officers'Certifrcate
(3) subject to the provisions of subdivision (I)of this Section 4.01, a Net Earning (3) NetBarningcertifrcate
Certificate showing the Adjusted Net Earnings of the Company to be as required by
Section 5.05 hereof;
( ) the Opinion of Counsel provided for in subdivision (8) of Section 5.06, and stating the (4) opinion of counsel
signer's opinion to the effect that the Class'A' Bonds being made the basis for the
authentication and delivery of the bonds then applied for are legal, valid and binding
obligations of the Company enforceable in accordance with their terms, except as limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting the enforcement
of mortgagees' and other creditors' rights and by general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity or at law), and such
Class "lt'' Bonds are entitled to the benefit of the security afforded by the corresponding
Class "A" Mortgage;
(5) copies of the certificates, or other documents, if any, specified in the Opinion of (5) Further certificates, etc.
Counsel provided for in subdivision (4) ofthis Section; and
Bonds issuable on basis of
Class '1" Bonds
Requirements
(6) DepositofClass"A"
Bonds
Conditions when no Net
Earning Certifr cate required
36
$4.01
Class ".Al' Bonds delivered to the Trustee pursuant to the provisions of this Section 4.01
need not contain identical or similar terms as to interest rates, redemption rights or other
terms (other than maturity dates) as the bonds being issued hereunder on the basis of such
Class "1t''bonds.
Class "A" Bonds delivered to the Trustee pursuant to the provisions of this Section 4.01
shall be held by the Trustee in accordance with the provisions of Article X hereof.
(II) No Net Earning Certificate shall be required if an Officers' Certificate is delivered,
making the statements provided for in Section 11.05 hereof relating to the authentication
and delivery ofthe bonds then being requested in the written order or orders ofthe Company
under this Section 4.01 and indicating that no Net Earning Certifrcate is required hereunder
pursuant to this subsection 4.01(II), unless one ofthe following conditions exists:
(i) an application for the authentication and delivery of bonds under any of the
provisions of this Indenture, which shall have contained a Net Earning Certificate, shall
have been made to the Trustee subsequent to the delivery to the trustee of a Class "A"
Mortgage of an irrevocable direction to apply moneys to the purchase, payment,
retirement andi/or redemption of, or subsequent to the cancellation or surrender for
cancellation of, any Class "A" Bonds on the basis of which other Class "It'' Bonds are to be
authenticated and delivered pursuant to the provisions of Section 29 of the Pacific
Mortgage or Section 29 of the Utah Mortgage (as the case may be), as then in effect, or
pursuant to the corresponding provisions of another Class "1t'' Mortgage, and in such Net
Earning Certifrcate the Annual Interest Requirements on the bonds to be authenticated
and delivered pursuant to the provisions ofthis Section 4.01 shall not have been included,
or
(il) the class "A" Bonds on the basis of which other class "It'' Bonds are to be
authenticated and delivered mature by their terms at a date more than two years afber
the date of authentication and delivery of the bonds applied for pursuant to this
Section 4.01 and bear a lower interest rate than the bonds applied for,
in either of which cases the Trustee shall receive a Net Earning Certificate showing the
Adjusted Net Earnings to be as required by Section 5.05 hereof.
37
Art. V, $$5.0r, 5.02, 6.03, 6.04
ARTICLE V
Issuance of Bonds on the Basis of Property Additions
Section 5.01 The Trustee shall, from time to time, upon the written order or orders ofthe Company signed by an Authorized Executive Officer of the Company, and by its
Secretary or an Assistant Secretary or an Authorized Financial Officer of the Company,
authenticate and deliver bonds hereunder of one or more series upon the basis of Property
Additions, but only in accordance with and subject to the conditions, provisions and
Iimitations set forth in this Article V.
Section 5.02 No bonds shall be authenticated and delivered at any time under the
provisions of this Article V, upon the basis of Funded Property.
Section 5.03 Bonds of any one or more series may be authenticated and delivered under
the provisions of this Article V upon the basis of Property Additions for a principal amount
not exceeding seventy per centum (70%) ofthe balance ofthe Cost or ofthe fair value thereof
to the Company (whichever shall be less) after making any deductions and any additions
pursuant to Section 1.04 hereof.
Section 5.04 In all cases in which it shall appear, from the Engineer's Certificate
hereinafter in Section 5.06 hereof provided for, that Property Additions proposed to be made
the basis of one or more Authorized Purposes are subject to a Qualified Lien, the principal
amount of the then Outstanding Qualified Lien Bonds secured by a Qualified Lien thereon
(in the case ofthe authentication and delivery ofbonds under the provisions ofthis Article Vor the withdrawal of cashunder Section7.O2 hereof) or ten-sevenths (10/7ths) of such
principal amount (in the case of the release of property under any provisions hereof or the
withdrawal of cash under Section 13.06 hereof) shall be deducted from the principal amount
of bonds which might otherwise be authenticated or from the amount of cash which might
otherwise be withdrawn or from the fair value of property which might otherwise be released
or from the amount for which the Company might otherwise be entitled to a credit, unless
such certificate shall also state that the required amount has theretofore been deducted
pursuant to the provisions of this Section when other Property Additions subject to such
Qualified Lien have theretofore been made the basis under any of the provisions of this
Indenture ofone or more Authorized Purposes, and that since the date ofsuch deduction
Bonds issuable on basis of
Property Additions
No Bonds issuable on basis of
Funded Property
Cost or fair value of Property
Additions as limiting amount
ofbonds issuable
Issuance ofbonds on basis of
Property Additions subject to
Qualifred Lien
38
s5.04
Refunding of Qualilled Lien
property subject to the Lien of this Indenture has continued to be subject to such Qualified
Lien.
If, at any time after an amount equal to the principal amount of any Outstanding
Qualified Lien Bonds shall have been, in accordance with the provisions of this Section,
deducted from the principal amount of bonds which might otherwise be authenticated and
delivered. hereunder, or the required principal amount shall have been deducted in
connection with the withdrawal of cash or the release of property, the Company shall either:
(A) deposit with the Trustee any such principal amount of Qualified Lien Bonds to be
held and dealt with by the Trustee in the manner and subject to the conditions and
provisions set forth in Article X hereof; or
(B) fi]e with the Trustee an Officers' Certificate to the effect that the principal amount of
such Outstanding Qualified Lien Bonds to the extent of the principal amount deducted as
aforesaid, (1) has been reduced, or concurrently with the action requested will be reduced, by
payment, or by the irrevocable deposit with the trustee or other holder of the Qualified Lien
securing the same, of moneys in the necessary amount for the purchase, payment or
redemption thereof, or otherwise reduced, and that such reduction has not been, and will not
be, effected by the use, by the trustee or other holder of such Qualified Lien, of cash which
(after giving effect to the provisions of Sections 1.05 and 13.06 hereo0 is then deemed to be or
to have been Funded Cash; provided that, in the case of redemption, the notice required
therefor shall have been given or have been provided for, or (2) has been ascertained by final
judicial determination or otherwise to the satisfaction of the Trustee to be in whole or in part
invalid, and specifuing the amount of reduction or the extent of the invalidity, as the case
may be, supported by an Opinion of Counsel;
then, and in either such case, the Company shall be entitled to the authentication and
delivery of further bonds up to a principal amount equivalent to and on the basis of the
principal amount of the Qualified Lien Bonds so deposited with the Trustee, or (as the case
may be) equivalent to and on the basis of the amount by which the principal amount of such
Qualified Lien Bond.s shall be certified to have been and/or to be reduced or to have been
ascertained to be invalid, but not exceeding in the aggregate a principal amount equivalent
to the aggregate ofthe
Bonds
39
$5.04
respective principal amounts of Qualified Lien Bonds Outstanding under each respective
Qualified Lien immediately after such lien shall have become a Qualified Lien and in respect
of which bonds the deductions required by the provisions of this Section shall have been
made,
Notwithstanding any other provisions herein contained, it shall not be necessary to
comply with the provisions of Section 5.05 hereof or to furnish any Net Earning Certificate in
connection with the authentication and delivery of bonds under the foregoing provisions of
this Section unless the Qualified Lien Bonds on the basis of which bonds are to be so
authenticated and delivered, mature by their terms at a date more than two years after the
authentication and delivery ofthe bonds applied for and bear a lower interest rate than the
bonds applied for.
No bonds shall be authenticated and delivered under the provisions of this Section by
reason of the deposit of any Qualified Lien Bonds or the payment, reduction or
ascertainment of invalidity thereof to the extent that such deposit or payment, reduction or
ascertainment of invalidity shall theretofore have been used as a basis, under the provisions
ofthis Section, ofthe authentication and delivery ofbonds or to the extent that a waiver by
the Company ofits right to the authentication and delivery ofbonds on the basis ofany such
deposit, payment, reduction or ascertainment of invalidity is then in effect, or by reason of
the deposit of any Qualified Lien Bonds with respect to which deposit the Company shall
have certifi.ed that it elects not to have any bonds authenticated hereunder on the basis
thereo{ or by reason of the deposit of any Qualified Lien Bonds with the Trustee under the
provisions ofSection 9.13 hereof.
Limit on bond authentication
based on property subject to
Qualified Lien
No bonds shall be authenticated and delivered under the provisions of this Article V (nor Additio.nal limit on bond
Funded Cash be withdrawn nor Fund.ed Property be released under any of the provisions of ;}j|iLf ij'5::"liX"3,li,o"u
this Indenture) upon the basis of any Property Additions subject to a Qualified Lien unless it Lien
shall be stated in an Engineer's Certificate accompanying the application that:
(a) the principal amount of all bonds theretofore authenticated and delivered by the
Trustee (including any bonds for the authentication and delivery of which application is then
made) under the provisions of this Article V upon the basis of such Property Additions
subject to a Qualified Lien as shall have continued to be subject to a Qualified Lien or upon
the basis of a reduction in the principal amount of Outstanding Qualified Lien Bonds on such
Property Additions as shall have continued to be subject to a Qualified Lien,
40
$5.04
(b) the total amount of Funded Cash deposited with the Trustee under the provisions of
Section 7.01 hereof and theretofore withdrawn (including any such Funded Cash for the
withdrawal of which application is then made) under any of the provisions of this Indenture
upon the basis of such Property Additions subject to a Qualified Lien as shall have continued
to be subject to a Qualified Lien,
(c) seventy per centum (70%) ofall Funded Cash deposited with the Trustee under any of
the provisions of this Indenture (other than the provisions of Section 7.01 hereof; and
theretofore withdrawn (including any such Funded Cash for the withdrawal of which
application is then made) under any of the provisions of this Indenture upon the basis of
such Property Additions subject to a Qualified Lien as shall have continued to be subject to a
Qualified Lien,
(d) seventy per centum (70o/o) of. the Cost or the fair value to the Company, whichever is
less (at the date of the Engineer's Certificate in which such Property Additions shall have
been made the basis of the release hereinafter in this clause (d) mentioned), of such Property
Additions subject to a Qualified Lien as shall have continued to be subject to a Qualified
Lien, used as a basis for the release from the Lien ofthis Indenture ofFunded Property, and
(e) the principal amount of all Qualified Lien Bonds to be Outstanding upon the granting
of such application,
do not in the aggregate exceed fifteen per centum (15%) ofthe aggregate principal amount of
(1) all bonds to be Outstanding under this Indenture upon the granting of such application,
including those applied for, and (2) all Qualified Lien Bonds to the extent that such Qualified
Lien Bonds shall be Outstanding upon the granting of such application.
Subject to the provisions of Sections 19.01 and 19.02 hereof, the Trustee may assume that
any Property Additions subject to a Qualified Lien which shall have formed the basis, under
any of the provisions of this Indenture, for the authentication and delivery of bonds or the
withdrawal of Funded Cash or the release of Funded Property have continued to be subject
to a Qualified Lien until the Trustee shall have received an Officers' Certificate
(accompanied by a concurring Opinion of Counsel) to the contrary.
4t
$s5.04,6.06, 6.06
If at any time and from time to time, by reason either of the discharge of any Qualifred
Lien or ofany increase in the aggregate amount ofbonds authenticated and delivered under
this Indenture, there shall be a change in the aggregate principal amount of bonds which
may be authenticated and delivered within the limitations prescribed by this Section, then
any bonds, which before such change were not permitted to have been authenticated and
delivered by reason of such limitations, may be authenticated and delivered subject to such
limitations as fixed by such change.
No bonds shall be authenticated and delivered under the provisions ofthis Section unless
the Trustee at the time of the application for such authentication and delivery shall receive a
Resolution, Of6cers' Certificate and Opinion of Counsel such as are described in subdivisions
(1), (2) and (8) of Section 5.06 hereof, together with copies of the officially authenticated
certificates or other documents, if any, specified in such Opinion of Counsel, and, in case the
bonds are to be authenticated and delivered under the provisions of the next preceding
paragraphs of this Section by reason of an increase in the aggregate principal amount of
bonds authenticated and delivered under this Indenture having increased the aggregate
principal amount of bonds which may be authenticated and delivered within the limitations
prescribed by this Section, a Net Earning Certificate showing the Adjusted Net Earnings of
the Company to be as required by Section 5.05 hereof.
Section 5.05 No bonds other than the bonds of the First Series (as set forth in Article III
hereof) shall be authenticated and delivered upon the basis ofProperty Additions unless, as
shown by a Net Earning Certificate, the Adjusted Net Earnings of the Company for the
period therein referred to shall have been in the aggregate at least equivalent to twice the
Annual Interest Requirements as shall be specified, pursuant to the provisions of subdivision
(B) of Section 1.07 hereof, in such Net Earning Certificate. No Net Earning Certificate is
required as to the authentication and delivery ofsaid bonds ofthe First Series.
Section 5.06 No bonds shall be authenticated or delivered hereunder by the Trustee
upon the basis of Property Additions until the Trustee shall have received the following:
(1) a Resolution requesting the Trustee to authenticate and deliver bonds, (a) specifying
the principal amount of bonds called for and the series thereol ft) specifuing or setting forth
a method by
Documents received by
Trustee
Requirements as to net
earnings
Requirements for issuance of
bonds upon basis of
Property Additions:
(l) Resolution
42
$5.06
(1) Offi cers' Certifrcate
which all other matters with respect thereto as required by this Indenture (including those
terms and conditions described in Section 2.03 hereofl are to be established, and
(c) specifuing the officer or officers of the Company to whom, or upon whose written order,
such bonds shall be delivered;
(2) an Officers' Certificate complying with the requirements of Section 22.05 hereof
(a) detailing the matters required to be set forth therein as provided in Section 2.03 hereof,
antt (b) stating that to the knowledge of the signers none of the events which itself or with a
lapse of time would constitute a Default of the type specified in subdivisions (a) through
(h) ofSection 15.01 hereofhas occurred and is continuing;
(3) an Engineer's Certificate made and dated not more than ninety (90) days prior to the
date of such application,
(a) describing in reasonable detail the Property Additions made the basis of the
application;
@) stating that all the Property Additions made the basis of the application are
Property Additions as defined in Section 1.04 hereof;
(c) stating that such Property Additions are desirable for use in the proper conduct of
the business ofthe Company;
(d) stating that such Property Additions, to the extent ofthe Cost or fair value thereof
(whichever is less) to the Qempanf made the basis of the application, do not consist of
Funded Property;
(e) stating, except as to Property Additions acquired, made or constructed wholly
through the delivery of securities, that the amount of cash forming all or part of the Cost
thereof was equal to or more than an amount to be stated therein;
(fl briefly describing, with respect to any Property Additions acquired, made or
constructed in whole or in part through the delivery of securities, the securities so
delivered and stating the date of such delivery;
(g) stating what part, if any, of such Property Additions includes property (other than
property acquired from PacifiCorp, a Maine coryloration, and from Utah Power & Light
Company, a Utah corporation, upon the merger of those corporations into
(2) Engineer's Certifrcate
43
$5.06
the Company) which within six months prior to the date of acquisition thereof by the
Company has been used or operated by others than the Company in a business similar to
that in which it has been or is to be used or operated by the Company and showing
whether or not the fair value thereof to the Company is less than Twenty-five Thousand
Dollars ($25,000) and whether or not the fair value thereof to the Company is less than
one per centum (lo/o) of the aggregate amount of (x) the principal amount of the bonds at
the time Outstanding and (y) the principal amount of the Class A Bonds at the time
Outstanding other than Class A Bonds delivered to and held by the Trustee hereunder;
(h) stating, except as to Property Additions with respect to the fair value to the
Company of which a statement is to be made in an Independent Engineer's Certificate as
provided for in subdivision (4) ofthis Section, that the fair value to the Company as ofthe
date of such certificate of such Property Additions is a specified amount;
(i) stating the amount required to be deducted under the provisions of subdivision
(A) of Section 1.04 hereof and the amount elected to be added under the provisions of
clauses (a), (b) and (c) of subdivision (B) of Section 1.04 hereof in respect of Funded
Property retired of the Company;
(j) stating whether or not the required amount has theretofore been deducted in
compliance with the provisions of Section 5.04 hereof when other Property Additions
subject to a Qualifred Lien, referred to in the Opinion of Counsel provided for in
subdivision (7) of this Section, were made the basis under any of the provisions of this
Indenture of one or more Authorized Purposes and, if so, when such deduction was made
and whether since the date of such deduction property subject to the Lien of this
Indenture has continued to be subject to such Qualified Lien;
(k) making such statements, if any, as may be required to be stated in an Engineer's
Certificate by the provisions ofSection 5.04 hereof; and
(l) stating that the easements, restrictions, exceptions, reservations or rights, if any,
of the character mentioned in clauses (e) and (f) of Section 1.06 hereof, to which any
property or rights ofway included in such Property Additions are subject,
44
$5.06
and the defects, irregularities and deficiencies in titles of the character mentioned in
said clauses of any property or rights of way included in such Property Additions do
not materially impair the use of such property or rights of way for the purposes for
which the same are held by the Company;
(4)Independent
Certificate
Engineer's (a) in case any Property Additions are shown by the Engineer's Certificate provided for
in subdivision (3) above to include property (other than property acquired from PacifiCorp, a
Maine corporation, and Utah Power & Light Company, a Utah corporation, upon the merger
of those corporations into the Company) which within six months prior to the date of
acquisition thereofby the Company, has been used or operated by others than the Company
in a business similar to that in which it has been or is to be used or operated by the Company
and such certificate does not show the fair value thereof to the Company, as of the date of
such certificate, to be less than Tkenty-five Thousand Dollars ($25,000) or less than one per
centum (Lo/o) of the aggregate principal amount of the bonds at the time Outstanding
hereunder, a further certificate consisting of an Independent Engineers Certificate stating
as to such Property Additions which have been so used or operated and (at the option ofthe
Company) as to any other Property Additions included in the Engineer's Certificate provided
for in subdivision (3) of this Section that the then aggregate fair value thereof to the
Company, as of the date of such Independent Engineer's Certificate, in the opinion of the
signer is a specified amount; and in the case ofthe authentication and delivery ofbonds, the
fair value to the Company in the opinion of the signer of any property so used or operated
which has been subjected to the Lien of this Indenture since the commencement of the then
current calendar year as the basis for the authentication and delivery of bonds, and as to
which an Independent Engineer's Certificate has not previously been furnished to the
Trustee;
(5) Written appraisal in (5) in case any Property Additions are shown by the Engineer's Certiflcate provided for
in subdivision (3) above to have been acquired, made or constructed in whole or in part
through the delivery of securities, a written appraisal of an engineer, appraiser or other
expert person, firm or corporation, stating in the opinion ofthe signer the fair market value
in cash of such securities at the time of delivery thereof in payment for or for the acquisition
of such Property Additions;
certain cases
45
s5.06
(6) except in the case of the authentication of the bonds of the First Series, a Net Earning (6) Net Earning certificate
Certificate showing the Adjusted Net Earnings of the Company to be as required by
Section 5.05 hereof;
(7) an Opinion of Counsel stating the signer's opinion:(7) Opinion ofCounsel
(a) to the effect that (except as to paving, grading and other improvements to, under
or upon public highways, bridges, parks or other public property of analogous character)
this Indenture is, or upon the delivery of, and/or the filing and./or recording in the proper
places and manner of, the instruments of conveyance, assignment or transfer, if any,
specified in said opinion, will be, a lien on all the Property Additions made the basis of
such application, subject to no lien thereon prior or equal to the Lien of this Indenture
except Qualified Liens and Excepted Encumbrances and that the Company has the right
to remove any such Property Additions which are located on any leasehold or which are
on property as to which the Company has an easement, prior to or upon the termination
of such leasehold or easement, without compensation or other remuneration and free of
any lien prior or equal to the Lien ofthis Indenture, except Qualified Liens and Excepted
Encumbrances;
(b) to the effect that the Company has corporate authority to operate the Property
Additions with respect to which such application is made; and
(c) as to the general nature and extent of any Qualified Liens existing upon any of
such Property Additions, and the principal amount of the then Outstanding Qualified
Lien Bonds secured thereby, ifany;
(8) an Opinion of Counsel complying with the requirements of Section 22.05 hereof and
stating the signer's opinion to the effect that:
(8) Further Opinion of
Counsel
(a) the issue of the bonds has been duly authorir,ed. by the Company and has been
established in accordance with Section 2.03 hereof;
@) the issue of the bonds has been duly authorized by any and all governmental
authorities the consent of which is requisite to the legal issue of such bonds, specifring
any offrcially authenticated certificates, or other documents, by which such consent is or
may be evidenced, or that no consent ofany governmental authorities is requisite; and
46
$5,06; Art. VI, $6.0r
(c) the Company has contracted to pledge such bonds to secure other indebtedness of
a principal amount not less than seventy-five per centum (75o/o) of.t}ne principal amount of
such bonds or has sold or contracted to sell or to issue for value such bonds;
(9) Instruments of conveyance (9) copies of the instruments of conveyance, assignment and transfer, if any, specified in
the Opinion of Counsel provided for in subdivision (7) above; and
(10) Further certillcates, etc.(10) copies of the certificates, or other documents, if any, specified in the Opinion of
Counsel provided for in subdivision (8) above.
If, in order to render the Opinion ofCounsel provided for in subdivision (7) or subdivisron
(8) above, the signer thereof shall deem it necessary that additional facts or matters be
stated in the Engineer's Certificate provided for in subdivision (3) above, then in such event
the Engineer's Certificate may state all such additional facts or matters as the signer of such
Opinion of Counsel may request.
The amount of the Cost of any Property Additions and the fair value thereof to the
Company and the fair market value in cash of any securities so delivered in payment
therefor or for the acquisition thereof and the amount of any deductions and any additions
made pursuant to Section 1.04 hereof shall be determined for the purposes of this Article V
by the appropriate certificate provided for in this Section. In the case of Property Additions
subject to a Qualified Lien, the fair value of such Property Additions shall be determined as
if such Property Additions were free of such Qualified Lien.
ARTICLE VI
Issuance of Bonds upon Retirement of
Bonds Previously Outstanding Hereunder
Bonds Issuable on basis of
retirement ofbonds
previously outstanding
Section 6.01 Subject to the provisions of Section 6.02 hereol the Trustee shall, from
time to time, upon the written order or orders of the Company signed by an Authorized
Executive Officer of the Company, and by its Secretary or an Assistant Secretary or an
Authorized Financial Offrcer of the Company, authenticate and deliver bonds hereunder of
one or more series of a principal amount equal to and on the basis of the
47
s6.0r
principal amount of any Retired Bonds, but only after the Trustee shall have received the Requirements:
following:
(a) the Opinion of Counsel provided for in subdivision (8) of Section 5.06 hereof; and (4) opinion or counsel
(5) copies of the certificates, or other documents, if any, specified in the Opinion of (s) Further certiffcates, etc'
Counsel provided for in subdivision (4) of this Section.
(1) the Resolution provided for in subdivision (1) of Section 5.06 hereof;
(2) the Officers' Certificate provided for in subdivision (2) of Section 5.06 hereof;
(3) an Officers' Certificate stating that Retired Bonds, specified by series (in an aggregate
principal amount not less than the aggregate principal amount of bonds in respect of which
such written order or orders for authentication and delivery is or are made under this
Section 6.01) have theretofore been pledged to secure indebtedness of a principal amount not
less than seventy-five per centum (75o/o) of the principal amount of such Retired Bonds or
sold or issued for value and are the basis for such written order or orders;
In case (i) an application for the authentication and delivery of bonds under any of the
provisions of this Indenture, which shall have contained a Net Earning Certificate, shall
have been made to the Trustee subsequent to the delivery to the Trustee of an irrevocable
direction to apply moneys to any such purchase, payment, retirement and/or redemption of,
or subsequent to the cancellation or surrender for cancellation o{ any bonds on the basis of
which other bonds are to be authenticated and delivered pursuant to the provisions of this
Article VI, and in such Net Earning Certificate the Annual Interest Requirements on any
such bonds to be authenticated and delivered shall not have been included, or (ii) the Bonds
on the basis of which other bonds are to be so authenticated and delivered mature by their
terms at a date more than one year after the date of authentication and delivery of the bonds
applied for and bear a lower interest rate than the bonds applied for, then the Trustee shall
in either such case also receive a Net Earning Certificate showing the Adjusted Net Earnings
to be as required by Section 5.05 hereof.
(l) Resolution
(2) Officers' Certificate
(3) Further Officers'
Certificate
Net Earning Certiffcate in
certain cases
Requirement as to discharge
of Class "A" Mortgage
Bonds issuable on basis of
cash deposited with the
Trustee
Requirements:
(l) Resolution
(2) Offi cers' Certifrcate
(3) Net Earning Certificate
(4) Opinion of Counsel
(5) Further certificates, etc.
48
$$6.01, 6.02; Art. !'II, S7.0r
Any and all coupon bonds delivered to the Trustee pursuant to this Article shall be
accompanied by all unmatured coupons appertaining thereto.
Section 6.02 No bonds shall be authenticated or delivered hereunder pursuant to the
provisions of Section 6.01 hereof on the basis of the principal amount of any Retired Bonds
theretofore authenticated and delivered under Section 4.01 hereof until the Class "lt''
Mortgage under which the Class "A" Bonds made the basis for the authentication and
delivery of the Retired Bonds has been discharged pursuant to the provisions of Section 106
of the Pacific Mortgage, or of Section 116 of the Utah Mortgage, or of a comparable section of
another Class "1t'' Mortgage (as the case may be), as then in effect.
Issuauce of Bonds "itrl""i:JJlor c."n with rrustee
Section 7.01 The Trustee shall, from time to time, upon the written order or orders of
the Company signed by an Authorized Executive Officer of the Company, and by its
Secretary or an Assistant Secretary or an Authorized Financial Offrcer of the Company,
authenticate and deliver bonds hereunder of one or more series upon deposit with the
Trustee by the Company of cash equal to the aggregate principal amount of the bonds so
requested to be authenticated and delivered but only after the Trustee shall have received:
(1) the Resolution provided for in subdivision (1) of Section 5.06 hereof;
(2) the Offrcers'Certificate provided for in subdivision (2) ofSection 5.06 hereof;
(3) a Net Earning Certificate showing the Adjusted Net Earnings of the Company to be
as required by Section 5.05 hereof;
(4) the Opinion ofCounsel provided for in subdivision (8) ofSection 5.06 hereof; and
(5) copies of the certificates, or other documents, if any, specified in the Opinion of
Counsel provided for in subdivision (4) ofthis Section.
49
$$7.02,7.03
Section 7.02 All cash deposited with the Trustee under the provisions of the next
preceding Section hereofshall be held by the Trustee as a part ofthe Mortgaged and Pledged
Property, and may be withdrawn from time to time by the Company, upon application of the
Company to the Trustee evidenced by a Resolution, in an amount equal to the aggregate
principal amount of bonds to the authentication and delivery of which ths Qqmpany shall be
entitled under any of the provisions of this Indenture by virtue of compliance with all
applicable provisions of this Indenture (except as hereinafter in this Section otherwise
provided).
Upon any such application for withdrawal the Company shall comply with all applicable
provisions of this Indenture relating to the authentication and delivery of such bonds except
that the Company shall not be required to comply with any earning requirement or to deliver
to the Trustee any Resolution, Net Earning Certificate or Opinion of Counsel such as is
described in subdivisions (l), (6) and (8) ofSection 5.06 hereof.
Any withdrawal of cash under this Section shall operate as a waiver by the Company of
its right to the authentication and delivery ofthe bonds on which it is based and such bonds
may not thereafter be authenticated and delivered hereunder, and any Property Additions
which have been made the basis of any such right to the authentication and delivery of bonds
so waived shall have the status of Funded Property and shall be deemed to have been made
the basis of the withdrawal of such cash, and any bonds or Qualifred Lien Bonds which have
been made the basis of any such right to the authentication and delivery of bonds so waived
shall be deemed to have been made the basis of the withdrawal of such cash and any
Class "Al' Bonds which have been made the basis of any such right to the authentication and
delivery of bonds shall be deemed to have been made the basis of the withdrawal of such
cash.
Section 7.03 If at any time the Company shall so direct, any sums deposited with the
Trustee under the provisions of Section 7.01 hereof may be used or applied to the purchase,
payment or redemption of bonds in the manner and subject to the conditions provided in
subdivisions (3) and (4) of Section 13.06 hereof; provided, however, that, none of such cash
shall be applied to the payment of more than the principal amount of any
Withdrawal of cash in lieu of
bonds
Compliance with provisions
oflndenture
Effect of cash withdrawal on
right to issue bonds
Application of cash to retire
bonds
50
$7.03; Art. VIII, $8.01
bonds so purchased, paid or redeemed, except to the extent that the aggregate principal
amount of all bonds theretofore, and of all bonds then to be, purchased, paid and/or
redeemed with cash deposited under Section 7.01 hereof shall have exceeded the aggregate
cost for principal, interest, brokerage and premium, if any, on aII bonds theretofore, and on
all bonds then to be, purchased, paid and-/or redeemed with cash so deposited.
ARTICLE VIII
Amendments to the Trust Indenture Act
Reservation of right to amend
Indenture as necessary or
desireable based on
amendments to Trust
Indenture Act
Section 8.01 The Company reserves the right, without any consent or other action by
holders of bonds, to make such amendments to this Indenture (a) as shall be necessary from
time to time in order to quali& this Indenture under the Trust Indenture Act as in force on
the date of the making of any such amendment, and/or @) as may in the judgment of the
Company (as set forth in a Resolution) from time to time be desirable and as may hereafter
become permitted by virtue of amendments to the Trust Indenture Act in force on the date of
such amendment to this Indenture; provided that no such amendment shall, without the
consent of the holder of any bond issued under this Indenture affected thereby, impair or
affect the right of such holder to receive payment of the principal of (and premium, if any)
and interest on such bond, on or after the respective due dates expressed in such bond, or to
institute suit for the enforcement of any such payment on or after such respective dates, or
permit the creation of any lien ranking prior to, or on a parity with, the Lien of this
Indenture with respect to any of the property mortgaged and pledged thereunder or permit
the deprivation of such bondholder of a lien upon the Mortgaged and Pledged Property for
the security ofhis, her or its bonds (subject only to the lien oftaxes for the then current year,
the lien of taxes, assessments or governmental charges not then due and delinquent and to
any mortgage or other liens existing upon said property which are prior to this Indenture at
the time of such amendment), and holders of any bonds Outstanding under this Indenture by
acceptance ofsuch bonds, agree and consent to the making ofany such amendments.
51
Art. D( S$9.0r, 9.02, 9.03
ARTICLE D(
Particular Covenants of the Company
Section 9.01 The Company hereby covenants that on the day hereof it is Iawfully
possessed of all the Mortgaged and Pledged Property; that it will maintain and preserve the
Lien of this Indenture so long as any of the bonds issued hereunder are Outstanding; that
(subject to the provisions of Section 18.03 hereof) all property of the Company hereafter
acquired, made or constructed and wheresoever situated, except any hereinbefore or
hereinafter expressly excepted, shall be subject to the Lien of this Indenture just as though
said property was now owned by the Company and described herein; and that it has good
right and Iawful authority to mortgage and pledge the Mortgaged and Pledged Property, as
provided in and by this Indenture.
Section 9.02 The Company hereby covenants that it will duly and punctually pay the
principal of and interest and premium, if any, on all bonds Outstanding hereunder, according
to the terms thereof; and that as the coupons appertaining to said bonds are paid they will be
cancelled.
Section 9.03 (a) The Company hereby covenants that, whenever necessary to avoid orfill a vacancy in the office of Trustee, the Company will in the manner provided in
Section 19.15 hereof appoint a Trustee so that there shall be at all times a Trustee
hereunder which shall at all times be a bank or trust company having its principal office and
place of business in the United States of America, if there be such a bank or trust company
willing and able to accept the trust upon reasonable or customary terms, and which shall at
all times be a corporation organized and doing business under the laws of the United States
or of any State or Territory or of the District of Columbia (provided, however, that if
Section 310(a) of the Trust Indenture Act or the rules and regulations of the Securities and
Exchange Commission under the Trust Indenture Act at any time permit a coryloration
organized and doing business under the laws of any other jurisdiction to serve as trustee of
an indenture qualified under the Trust Indenture Act, this Section 9.03 shall be
automatically amended to permit a corporation organized and doing business under the laws
of any such other jurisdiction to serve as Trustee hereunder), with a combined capital and
surplus of at least Five Million Dollars ($5,000,000) or the foreign currency equivalency
thereof, and authorized under such laws to exercise corporate trust powers and
Possession; maintenance of
Lien; Lien extends to all
property unless expressly
excepted
Palment of principal and
interesti cancellation of
coupons
Appointment ofTrustee
Automatic amendment
52
Company to maintain office or
agency
Results of failure to maintain
such office or agency
Duty of paying agent other
than Trustee
!9.08
subject to supervision or examination by a supervisoly or examining authority.
(b) The Company hereby covenants that it wiII keep an office or agency, while any of the
bonds issued hereunder are Outstanding, at any and all places at which the principal of or
interest on any ofsaid bonds and coupons appurtenant thereto shall be payable, where bonds
entitled to be registered, transferred, exchanged or converted may be presented or
surrendered for registration, transfer, exchange or conversion, where notices, presentations
and demands to or upon the Company in respect ofsuch bonds or coupons as may be payable
at such places or in respect of this Indenture may be given or made, and for the payment of
the principal thereof and interest and premium, if any, thereon. The Company will from time
to time give the Trustee written notice of the location of such ofEce or offices or agency or
agencies, and in case the Company shall fail to maintain such office or offices or agency or
agencies or to give the Trustee written notice ofthe location thereof, then in addition to any
other remedy or right arising as a result of the violation of the covenants contained in this
Section, the Company agrees that any such notice, presentation or demand in respect ofsaid
bonds or coupons or of this Indenture may be given or made, unless other provision is
expressly made herein, to or upon the Trustee at its corporate trust offrce, and the Company
hereby authorizes such presentation and demand to be made to and such notice to be served
on the Trustee in either of such events and the principal of and interest and premium, if any,
on said bonds shall in such event be payable at said offrce ofthe Trustee.
(c) The Company hereby covenants that, ifit shall appoint a paying agent other than the
Trustee, it will cause such paying agent to execute and deliver to the Trustee an instrument
in which it shall agree with the Trustee, subject to the provisions of this Section, (1) that
such paying agent shall hold in trust for the benefit of the bondholders or the Trustee all
sums held by such paying agent for the payment of the principal of or interest on the bonds
(and premium, if any); and (2) that such paying agent shall give the Trustee notice of any
default by the Company in the making of any deposit with it for the payment of the principal
of or interest on the bonds (and premium, if any), and of any default by the Company in the
making of any such payment. Such paying agent shall not be obligated to segregate such
sums from other funds of such paying agent except to the extent required by law.
53
$se.03, e.04
(d) The Company hereby covenants that, if the Company acts as its own paying agent, it
will, on or before each due date ofeach installment ofprincipal or interest on the bonds, set
aside and segregate and hold in trust for the benefit ofthe bondholders or the Trustee a sum
suffrcient to pay such principal or interest so becoming due on the bonds (and premium, if
any) and wiII notifu the Trustee ofsuch action, or ofany failure to take such action.
(e) Anything in this Section to the contrary notwithstanding, the Company may at any
time, for the purpose of obtaining a release or satisfaction of this Indenture or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust by it or any paying agent
as required by this Section, such sums to be held by the Trustee upon the trusts in this
Indenture contained.
(f) Anything in this Section to the contrary notwithstanding, the holding of sums in trust
as provided in this Section is subject to the provisions ofSection 22.03 hereof.
Section 9.04 The Company hereby covenants that it will pay all taxes and assessments
and other governmental charges lawfully levied or assessed upon the Mortgaged and Pledged
Property, or upon any part thereof, or upon the interest ofthe Trustee in the Mortgaged and
Pledged Property, before the same shall become delinquent, and will duly observe and
conform to all valid requirements of any governmental authority relative to any of the
Mortgaged and Pledged Property, and all covenants, terms and conditions upon or under
which any of the Mortgaged and Pledged Property is held; that it will not suffer any lien to
be hereafter created upon the Mortgaged and Pledged Property, or any part thereof, or the
income therefrom, prior or equal to the Lien hereof, other than Excepted Encumbrances, and
other than, in the case of property hereafter acquired, vendors'liens, purchase money
mortgages and any lien thereon at the time of the acquisition thereof (including but not
limited to a Class "lt'' Mortgage), and within four months after any lawful claim or demand
for labor, materials, supplies or other objects has become delinquent which if unpaid would
or might by law be given precedence over the Lien ofthis Indenture as a lien or charge upon
any of the Mortgaged and Pledged Property, or the income therefrom, it will pay or cause to
be discharged or make adequate provisions to satisfu or discharge the same; provided,
however, that nothing in this Section contained shall require the Company to observe or
conform to any
Duty ofCompany acting as
paying agent
Delivery to Trustee of sums
held by other paying agent
All sums to be held subject to
Section 22.03
PaSrment of taxes, etc.,
discharge ofliens
Insurance on property
Other method or plan ofprotection against loss by frre
54
$s9.04,9.05
requirement of governmental authority or to cause to be paid or discharged, or to make
provision for, any such lien or charge, or to pay any such tax, assessment or governmental
charge so long as the validity thereof shall be contested in good faith and by appropriate
legal proceedings; and provided that nothing in this Section contained shall require the
Company to pay, discharge or make provisions for any tax, assessment or other
governmental charge, the validity ofwhich shall not be so contested ifadequate security for
the payment of such tax, assessment or other governmental charge and for any damages
which may reasonably be anticipated from failure to pay the same shall be given to the
Trustee; and that, save as aforesaid, it will not suffer any matter or thing whereby the Lien
hereof might or could be impaired in contravention of the provisions hereof.
Section 9.05 (I) The Company hereby covenants that it will keep or cause to be kept all
the property subject to the Lien hereof insured against fire, to the extent that property of
similar character is usually so insured by companies similarly situated and operating like
properties, to a reasonable amount, by reputable insurance companies, any loss, except as to
materials and supplies and except as to any particular loss less than the greater of Four
Million Dollars ($4,000,000) or two per centum (2%) of the bonds Outstanding hereunder on
the date of such particular loss, to be made payable to the Trustee as the interest of the
Trustee may appear, to the trustee of a Class "/t'' Mortgage, or to the trustee or other holder
of any mortgage or other lien constituting a Qualified Lien or any other lien prior hereto
upon property subject to the Lien hereof, if the terms thereof require losses so to be made
payable or that it will, in lieu of or supplementing such insurance in whole or in part, adopt
some other method or plan ofprotection against loss by fire at least equal in protection to the
method or plan of protection against loss by fire of companies similarly situated and
operating properties subject to similar fire hazards or properties on which an equal primary
fire insurance rate has been set by reputable insurance companies, and that ifit shall adopt
such other method or plan, it will, except as to materials and supplies and except as to any
particular loss less than the greater of Four Million Dollars ($4,000,000) or two per centum
(2%) ofthe bonds Outstanding hereunder on the date of such particular loss, pay to the
Trustee on account of any loss sustained by reason of the destruction or damage of such
property by fire, an amount of cash equal to such loss less any amounts otherwise paid to the
Trustee, to the trustee ofa Class
55
S9.05
"/t'' Mortgage, or to the trustee or other holder of any mortgage or other lien constituting a
Qualified Lien or any other lien prior hereto upon property subject to the Lien hereof, if the
terms thereof require losses so to be paid. Any amounts of cash so required to be paid by the
Company pursuant to any such method or plan shall for the purposes of this Indenture be
deemed to be proceeds of insurance. In case of the adoption of such other method or plan of
protection, the Company shall also furnish to the Trustee a certificate of an actuary or other
qualified person appointed by the Company with respect to the adequacy of such method or
plan.
(II) AII moneys paid to the Trustee by the Company in accordance with this Section or
received by the Trustee as proceeds of any insurance against loss by fire shall, subject to the
requirements of a Class "/t'' Mortgage, any mortgage constituting a Qualified Lien or any
other lien prior hereto upon property subject to the Lien hereof, be held by the Trustee and,
subject as aforesaid, shall be paid by it to the Company to reimburse the Company for an
equal amount expended or committed for expenditure in the rebuilding or renewal of the
property destroyed or damaged, upon receipt by the Trustee of (1) an Offrcers' Certificate
requesting such reimbursement, (2) an Engineer's Certificate stating the amounts so
e:rpended or committed for expenditure and the nature of such rebuilding or renewal and the
fair value to the Company of the property rebuilt or renewed or to be rebuilt or renewed and
if
(A) within six months prior to the date of acquisition thereof by the Company, such
property has been used or operated, by a person or persons other than the Company, in a
business similar to that in which it has been or is to be used or operated by the Company,
and
(B) the fair value to the Company of such property as set forth in such Engineer's
Certificate is not less than TVenty-five Thousand Dollars ($25,000) and not less than one
per centum (lo/o) of the aggregate principal amount of the bonds at the time Outstanding
under this Indenture,
the Engineer making such certificate shall be an independent Engineer, and (3) an Opinion
of Counsel that the property so rebuilt or renewed or to be rebuilt or renewed is or will be
subject to the Lien hereof to the same extent as was the property so destroyed or damaged,
provided, however, that to the extent that moneys paid by the Trustee to the
Application of insurance
proceeds
Use ofmoney not applied to
rebuilding or renewal within
eighteen months
Fire insurance policies;
provision for maximum
deductible amount and,/or cr
insurance or self insurance
provisions with maximum
dollar amount
Maintenance of Mortgaged
and Pledged Property
56
s$9.05,9.06
Company for reimbursement, as aforesaid, shall represent the proceeds of property that was
not Funded Property destroyed or damaged by fire, the property so rebuilt or renewed (for
which reimbursement is so made), shall not be deemed to be Funded Property.
(II) Any such money not so applied within eighteen (18) months after its receipt by the
Trustee, or in respect of which notice in writing of intention to apply the same to the work of
rebuilding or renewal then in progress and uncompleted shall not have been given to the
Trustee by the Company within such eighteen (18) months, or which the Company shall at
any time notifu the Trustee is not to be so applied, shall thereafter be withdrawn, used or
applied in the manner, to the extent and for the purposes and subject to the conditions
provided in Section 13.06 hereof.
(IV) Anything in this Indenture to the contrary notwithstanding, the Company may have
fire insurance policies with (a) a deductible provision in a dollar amount per occurrence not
exceeding the greater of Five Million Dollars ($5,000,000) or three per centum (3%) of the
bonds Outstanding hereunder on the date such policy goes into effect and/or @) co-insurance
or self insurance provisions with a dollar amount per occurrence not exceeding 30% of the
loss proceeds otherwise payable; provided, however, the dollar amount described in clause
(a) above may be exceeded to the extent such dollar amount per occurrence is below the
deductible amount in effect as to frre insurance (x) on property of similar character insured
by companies similarly situated and operating like property or (y) on property as to which an
equal primary fire insurance rate has been set by reputable insurance companies.
Section 9.06 (I) The Company will not, except as herein permitted, do or suffer any act
or thing whereby the Mortgaged and Pledged Property might or could be materially
impaired, and it will at all times maintain, preserve and keep the Mortgaged and Pledged
Property, as an operating system or systems capable of engaging in all or any of the
businesses described in the first sentence of subdivision O of Section 1.04 hereof, in good
repair, working order and condition. The Company will from time to time make all needful
and proper repairs, replacements, additions, betterments and improvements, so that the
operations and business of and pertaining to the Mortgaged and Pledged Property, as an
operating system or systems, shall at all times be conducted properly and advantageously;
and whenever any portion of the Mortgaged and Pledged Property shall have been worn out
or destroyed
57
s9.06
or shall have become obsolete or otherwise unfit for use, the Company will procure
substitutes of at least equal utility and effrciency, so that at all times the effrciency of the
Mortgaged and Pledged Property, as an operating system or systems, shall be fully
maintained.
(I) Nothing herein contained, however, shall be held to prevent the Company from
permanently discontinuing the operation of or reducing the capacity of any of its plants or
properties, il in the judgment of the Company, any such action which affects the Mortgaged
and Pledged Property is necessary or desirable in the conduct of the business of the
Company, or if the Company is ordered so to do by regulatory authority having jurisdiction
in the premises, or if the Company intends to sell or dispose of the same and within a
reasonable time shall endeavor to effectuate such sale; nor shall anything herein contained
be construed to prevent the Company from taking such action with respect to the use of its
plants and properties as is proper under the circumstances; including the cessation or
omission to exercise rights, permits, licenses, privileges or franchises which, in the judgment
of the Company, can no longer be profitably exercised or availed of; provided, however, the
Company covenants that it wiII, within sixty (60) days after its determination permanently
to discontinue the operation of any of its plants or properties subject to the Lien of this
Indenture ofa Cost, determined as provided in Section 1.04 hereof, in any one case in excess
of Five Million Dollars ($5,000,000) or in the aggregate in any period of twelve (12)
consecutive calendar months in excess of Ten Million Dollars ($10,000,000), furnish the
Trustee for information purposes with an Officers' Certificate setting forth the Cost, as so
determined, to the Company of the plants, or properties, the operation of which the Company
shall have determined so to discontinue.
(II) Whenever (but not more often than once in any period of five (5) years) the holders
of at least twenty-five per centum (25%) in principal amount of the bonds Outstanding
hereunder shall deliver to the Trustee and to the Company a written statement that they
have reasonable grounds to believe that the Mortgaged and Pledged Property has not been
adequately maintained, as an operating system or systems, in good repair, working order
and condition and request the Company to furnish to the Trustee an Independent Engineer's
Certificate stating whether or not the Mortgaged and Pledged Property, as an operating
system or systems, has been maintained in good repair, working order and condition, and
whether or not there is any property subject to the Lien ofthis Indenture
Permanent discontinuance of
operation or reduction of
capacity of any plants or
property
Independent Engineer's
Certificate on maintenance of
Mortgaged and Pledged
Property
Company objection in writing
to frndings of independent
Engineer; artibration
58
$9.06
which should be retired on the books of the Company as having ceased permanently to be
used or usefuI in the business of the Company and which has not been so retired, the
Company shall cause such Independent Engineey's Certificate to be furnished to the Trustee
within a reasonable time after such request. If such independent Engineer shall report that
the Mortgaged and Pledged Property, as an operating system or systems, has not been
maintained in good repair, working order and condition, he or she shall state clearly in his or
her report the character and extent of, and, if longer than one year, the time reasonably
necessary to make good such deficiency and, if he or she shall report that there is property
subject to the Lien ofthis Indenture which should be retired on the books ofthe Company as
having ceased permanently to be used or useful in the business of the Company and which
has not been so retired, his or her report shall briefly describe such property. Said report
shall be placed on file by the Trustee and shall be open to inspection by any bondholder at
any reasonable time.
(ID If the Company, within thirty (30) days after the fiIing of the report of such
independent Engineer, objects in a writing delivered to the Trustee to the findings of such
independent Engineer as to the character and extent of such maintenance deficiency and/or
to the property which should be retired upon the books of the Company, then the character
and extent ofsuch maintenance deficiency, ifany, and/or the property, ifany, so to be retired
upon the books of the Company shall be forthwith referred to three arbitrators selected in
the following manner: The Trustee, within ten (10) days after the expiration of said period of
thirty (30) days, shall name one arbitrator and give notice of such selection to the Company.
Within ten (10) days after receipt of such notice, the Company shall name one arbitrator and
give notice of such selection to the Trustee, and failure so to do shall entitle the Trustee to
name an arbitrator to represent the ComFany. The two thus selected shall, within ten
(10) days after the appointment of the arbitrator representing the Company, select a third
arbitrator, but if said arbitrators are unable, within said ten (10) days, to agree upon such
third arbitrator, then, upon the election of either the Company or the Trustee, any District
Judge of the United States of America for the District in which the Trustee has its principal
place of business may appoint such third arbitrator, upon application to said District Judge
by either party after five (5) days' notice thereofto the other party. The written decision of a
majority of such arbitrators shall be filed as soon as practicable with the Trustee and a copy
thereof
59
$e.06
delivered to the Company, and shall be binding upon the Trustee, the Company and the
bondholders.
fltr) Within one year from the date of the report of such independent Engineer or the date
of such decision of arbitrators, whichever is later, or such longer period as may be reported
by such independent Engineer or the arbitrators, as the case may be, to be reasonably
necessary to cure any such deficiency, no statement contained in any report of any
independent Engineer filed with the Trustee, as hereinbefore in this Section provided, shall
be deemed to be in any way evidence or proof of a failure to comply with the provisions of this
Section.
(VI) The Company shall, with all reasonable speed, do or cause to be done such
maintenance work as may be necessary to cure any such maintenance deficiency as shall
have been determined to exist as hereinabove provided at the time of the report of such
independent Engineer or at the time of such decision of arbitrators, as the case may be,
whereupon such independent Engineer or such arbitrators, as the case may be (or, in case of
his or her or their refusal or inability to act, some other independent Engineer), shall report
in writing to the Trustee whether such deficiency has been cured.
(IX) In the event that any regulatory authority having jurisdiction over the Company
shall determine that the expenditures for repairs and maintenance necessary to cure any
such maintenance deficiency as shall have been so determined would be excessive or shall, by
order or regulation, prohibit, in whole or in part, such expenditures for repairs and
maintenance, then, upon filing with the Trustee a certified copy of
(VII) Unless the Trustee shall be so advised in writing by such independent Engineer or
arbitrators, as the case may be, within one year from the date of the report of such
independent Engineer or the date ofsuch decision ofarbitrators, as the case may be, or such
longer period as may be reported by such independent Engineer or the arbitrators, as the
case may be, to be reasonably necessary for the purpose, that such deficiency has in all
material respects been cured, the Company shall be deemed to have defaulted in the due
performance of the covenants of this Section, so far as concerns the maintenance of the
Mortgaged and Pledged Property.
(VIII) All expenses incurred pursuant to this Section shall be borne by the Company. Expenses
Grace period regarding
compliance
Company shall cure
deficiency; independent
Engineer or arbitrators shall
report to Trustee
Company deemed to have
defaulted in covenants of this
Section unless Trustee
advised defrciency has been
cured
Relief of Company from
certain covenants by order or
regulation of regulatory
authority
Retirement from plant
account of property no longer
useful in business
Covenant as to common
dividends.
Maintenance of corporate
existence and franchises.
Recording, filing, etc.
60
$!9.06, 9.07, 9.0E, 9.09
such order or a copy of such regulation, as the case may be, the Company shall, so long as
such order or such regulation remains in effect, be relieved from compliance with the
covenants contained in this Section, in regard to the maintenance of the Mortgaged and
Pledged Property, to the extent that such expenditures for repairs and maintenance shall
have been held excessive or shall be prohibited.
(X) The Company covenants that it will promptly retire on its books of account any of the
Mortgaged and Pledged Property included in plant account (except real estate held for the
purpose of sale or resale) that has, in the opinion of the Company, ceased permanently to be
used or useful in its business or which pursuant to the provisions of this Section any
independent Engineer has reported to the Company more than thirty (30) days prior thereto
(without written objection thereto having been delivered to the Trustee by the Company), or
any arbitrators have determined, should be retired on the books of the Company as having
ceased permanently to be used or useful in the business of the Company.
Section 9.07 Other than dividends payable solely in shares of its common stock, the
Company shall not declare and pay dividends in cash or property on any shares of its
common stock if, after giving effect to such declaration or payment, the Company would not
be able to pay its debts as they become due in the usual course ofbusiness.
Section 9.08 The Company hereby covenants that it will, subject to the provisions of
Article XVIII hereof, at all times maintain its corporate existence and right to carry on
business, and duly procure all renewals and extensions thereof, if and when any shall be
necessary and, subject to the provisions of this Indenture, will use its best efforts to
maintain, preserve and renew all the rights, powers, privileges and franchises owned by it,
affecting the Mortgaged and Pledged Property.
Section 9.09 The Company hereby covenants that it will cause this Indenture and all
indentures and instruments supplemental hereto (or notices, memoranda or financing
statements as may be recorded or filed to place third parties on notice thereof) to be promptly
recorded and filed and re-recorded and re-filed in such manner and in such places, as may be
required by law in order fully to preserve and protect the security ofthe bondholders and all
rights of the Trustee, and will furnish to the Trustee:
61
s9.oe
(a) Promptly after the execution and delivery of this Indenture and of each
supplemental indenture, an Opinion of Counsel either stating that in the opinion of such
counsel this Indenture or such supplemental indenture (or notice or memorandum thereof
or financing statement in connection therewith) has been properly recorded and filed, so
as to make effective the lien intended to be created hereby or thereby, and reciting the
details of such action, or stating that in the opinion of such counsel no such action is
necessary to make such lien effective. The Company shall be deemed to be in compliance
with this subdivision (a) if (1) the Opinion of Counsel herein required to be delivered to
the Trustee shall state that this Indenture or such supplemental indenture (or financing
statement or notice or memorandum thereof) has been received for record or filing in eachjurisdiction in which it is required to be recorded or filed and that, in the opinion of
counsel (if such is the case), such receipt for record or filing makes effective the lien
intended to be created by this Indenture or such supplemental indenture, and (2) such
opinion is delivered to the Trustee within such time, following the date of the execution
and delivery of this Indenture or such supplemental indenture, as shall be practicable
having due regard to the number and distance of the jurisdictions in which this Indenture
or such supplemental indenture is required to be recorded or filed.
(b) On or before October 1 of each year, beginning October 1, 1989, an Opinion of
Counsel either stating that in the opinion of such counsel such action has been taken,
since the date of the most recent Opinion of Counsel furnished pursuant to this
subdivision (b) or the first Opinion of Counsel furnished pursuant to subdivision (a) of
this Section, with respect to the recording, filing, rerecording, and re-filing of this
instrument and of each indenture supplemental to this instrument (or financing
statement or notice or memorandum thereof), as is necessary to maintain the Lien hereof,
and reciting the details of such action, or stating that in the opinion of such counsel no
such action is necessary to maintain such lien.
The Company hereby covenants that it will execute and deliver such supplemental
indenture or indentures and such further instruments and do such further acts as may be
necessaly or proper to carry out more effectually the purposes of this Indenture and to make
subject to the Lien hereofany property hereafter acquired, made or constructed, intended
Opinion of Counsel on
recording and filing
Annual Opinion of Counsel on
maintenance ofLien
Instruments offurther
assistance.
Company to furnish Trustee
list of bondholders semi-
annually unless Trustee also
registrar and transfer agent.
Preservation of bondholders
list
Bondholders list to be
available to bondholders
62
ssg,09, 9.10
to be subject to the Lien hereof, and to transfer to any new trustee or trustees or co-trustee
or co-trustees, the estate, powers, instruments or funds held in trust hereunder.
Section 9.10 (a) The Company covenants and agrees that it will furnish or cause to be
furnished to the Trustee between February 15 and March 1 and between August 15 and
September 1, in each year after the calendar year 1988, and at such other times as the
Trustee may request in writing, a list in such form as the Trustee may reasonably require
containing all the information in the possession or control of the Company or of its paying
agents, as to the names and addresses of the holders of bonds obtaiued since the date as of
which the next previous list, if any, was furnished. Any such list may be dated as of a date
not more than fifteen (15) days prior to the time such information is furnished or caused to
be furnished, and need not include information received after such date; and, provided, that
the Company need not furnish or cause to be furnished any such list with respect to bonds
with respect to which the Trustee maintains the books for the registration and transfer of
bonds as provided for in Section 2.09 hereof.
(b) 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 bonds (1) contained in the most
recent list, if any, furnished to it as provided in subdivision (a) of this Section, (2) received
by it in the capacity of paying agent hereunder, and (3) filed with it within two preceding
years pursuant to the provisions of paragraph (2) of subdivision (c) of Section 19.13 hereof.
The Trustee may (1) destroy any list furnished to it as provided in subdivision (a) of this
Section upon receipt of a new list so furnished; (2) destroy any information received by it as
paying agent upon delivery to itselfas Trustee, not earlier than forty-five (45) days afber an
interest payment date of the bonds, of a list containing the names and addresses of the
holders ofbonds obtained from such information since the delivery ofthe next previous list,
if any; (3) destroy any list delivered to itself as Trustee which was compiled from
information received by it as paying agent upon the receipt of a new list so delivered; and
(4) destroy any information received by it pursuant to the provisions of paragraph (2) of
subd.ivision (c) of Section 19.13 hereof, but not until two years after such information has
been filed with it.
(c) In case three or more holders of bonds (hereinafter referred to as 'Applicants") apply
in writing to the Trustee, and furnish to the
63
$9.10
Trustee reasonable proof that each such Applicant has owned a bond 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 bonds with respect to their rights
under this Indenture or under the bonds, and is accompanied by a copy ofthe form ofproxy
or other communication which such Applicants propose to transmit, then the Trustee shall,
within five (5) 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 subdivision @) of this Section; or
(2) inform such Applicants as to the approximate number of holders of bonds whose
names and addresses appear in the information preserved at the time by the Trustee, in
accordance with the provisions of subdivision @) of this Section, and as to the
approximate cost of mailing to such bondholders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford to such Applicants access to such information, the
Trustee shall, upon the written request of such Applicants, mail to each bondholder whose
name and address appears in the information preserved at the time by the Trustee in
accordance with the provisions ofsubdivision @) ofthis Section, a copy ofthe form ofproxy
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 afber such tender the
Trustee shall mail to such Applicants and fiIe with the Securities and Exchange
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 bonds, or would be in violation of applicable law. Such written
statement shall speciS the basis of such opinion. If said 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 said Commission shall find, after notice and
opportunity for a 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 bondholders
with reasonable promptness afber the entry of such order
Trustee to mail
communications to
bondholders.
Filings with Trustee
64
$$9.r0,9.u
and the renewal of such tender; otherwise the Trustee shall be relieved of any obligation or
duty to such Applicants respecting their application.
(d) Neither the Trustee nor any paying agent shall be held account-able by reason ofthe
disclosure of information as to names and addresses or the mailing of any material pursuant
to any request made under subdivision (c) of this Section.
Section 9.11 The Company covenants and agrees:
(1) to file with the Trustee within ftflteen (15) days after the Company is required to
file the same with the Securities and Exchange 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 such Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with such Commission pursuant to
Section 13 or Section 15(d) ofthe Securities Exchange Act of 1934, as amended; or, ifthe
Company is not required to file information, documents, or reports pursuant to either of
such sections, then to file with the Trustee and the Securities and Exchange
Commission, in accordance with rules and regulations prescribed from time to time by
said Commission, such of the supplementary and periodic information, documents, and
reports which may be required pursuant to Section 13 of the Securities Exchange Act of
1g34, as amended, in respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and regulations;
(2) to file with the Trustee and the Securities and Exchange Commission, in
accordance with the rules and regulations prescribed from time to time by said
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, including,
in the case of annual reports, if required by such rules and regulations, certificates or
opinions of independent public accountants, conforming to the requirements of
Section 22.05 hereof, as to compliance with conditions or covenants, compliance with
which is subject to verification by accountants, but no such certificate or opinion shall be
required as to (A) dates or periods not covered by annual reports required to be filed by
the Company, in the case ofconditions precedent which depend upon a state offacts as of
a date
65
$$9.1r, 9.12, 9.r3
or dates or for a period or periods different from that required to be covered by such
annual reports, or @) the amount and value of Property Additions, except as provided in
Section 5.06 hereof, or (C) the adequacy ofdepreciation, maintenance, or repairs; and
(3) to transmit to the holders of bonds, in the manner and to the extent provided in sumaries to bondholders
subdivision (c) of Section 19.13 hereof with respect to reports pursuant to subdivision
(a) of Section 19.13 hereof, such summaries of any information, documents and reports
required to be filed by the Company pursuant to subdivisions (1) and (2) of this Section as
may be required by the rules and regulations prescribed from time to time by the
Securities and Exchange Commission.
Section 9.12 The Company hereby covenants that books of record and account will be
kept in which full, true and correct entries wiII be made of all dealings of or transactions of,
or in relation to, the plants, properties, business and affairs ofthe Company.
The Company hereby covenants that it will not issue, or permit to be issued, any bonds
hereunder in any manner other than in accordance with the provisions ofthis Indenture and
that it will faithfully observe and perform all the conditions, covenants and requirements of
this Indenture and ofall indentures supplemental hereto and ofthe bonds issued hereunder.
Section 9.13 The Company hereby covenants that it will promptly advise the Trustee in
writing of any failure to pay interest upon or principal (whether at maturity as therein
expressed or by declaration, or otherwise) of any Outstanding Qualified Lien Bonds or
Class "/t'' Bonds continuing beyond the period of grace, if any, specified in the Qualified Lien
or Class'A" Mortgage securing the same.
The Company hereby covenants that upon the cancellation and discharge ofany Qualified
Lien securing Qualified Lien Bonds it will (unless the Qualified Lien Bonds, cash, proceeds
and other property mentioned in subdivisions (a) and (b) below are thereupon otherwise
disposed of as required by another Qualified Lien) cause
(a) any Qualified Lien Bonds deposited with and then held by the trustee or other
holder of such Qualified Lien cancelled and discharged, to be cancelled and notification
thereofto be given to the Trustee, or, at the option ofthe Company, to be delivered to and
deposited with the Trustee hereunder; and
True and correct entries to
books ofrecord and acount,
Company to advise Trustee of
certain defaults on Qualified
Lien or Class "A" Bonds
Upon discharge of QualifiedLien Company will cause:
(a) Such Qualified Lien
Bonds to be cancelled,
etc.
(b) Transfer of deposits
Company will not pemit the
amount of Qualified Lien
Bonds to be increasedi
exceptions:
66
$9.r3
&) all cash which (after giving effect to the provisions of Section 13.06 hereoD is then
deemed to be Funded Cash and aU obligations secured by purchase money mortgages
and all proceeds of insurance on, or of the release of, or the taking by eminent domain of,
or the purchase by a governmental authority or its designee of, Funded Property,
deposited with and then held by the trustee or other holder of such Qualified Lien
cancelled and discharged (including as to all of the foregoing all proceeds of or
substitutes for any thereof then held as aforesaid), to be paid and/or delivered to and/or
deposited with the Trustee hereunder, to be held as part of the Mortgaged and Pledged
Property;
any such Qualified Lien Bonds constituting a part thereof to be held and disposed of under
the provisions of Article X hereof; any such cash and./or obligations secured by purchase
money mortgages on property released (including any proceeds or substitutes therefor)
constituting a part thereof to be paid over, withdrawn, used or applied, in the manner, to
the extent, and for the purposes and subject to the conditions provided in Section 13.06
hereof and with respect to cash and obligations secured by purchase money mortgages
deposited under the provisions of Section 13.03 hereof; any bonds issued hereunder
deposited with and then held by the trustee or other holder of such Qualified Lien cancelled
and discharged, to be cancelled by the Trustee; and any other property constituting a part
thereof to be subject to use and release as provided with respect to such property in
Article XIII hereof.
The Company hereby covenants that it will not permit the amount of Qualified Lien
Bonds to be increased by the issue of additional Qualified Lien Bonds unless (1) the
Qualified Lien Bonds representing such increase shall be issued upon transfer of, or in
exchange for, or in lieu of Outstanding Qualified Lien Bonds on the exercise by a holder or
holders of such Outstanding Qualified Lien Bonds of the right granted by the Qualified Lien
securing such Qualified Lien Bonds to have such bonds issued or (2) the Qualified Lien
Bonds representing such increase shall be deposited with the Trustee to be held under the
provisions of Article X hereof and/or unless such Qualified Lien Bonds representing such
increase shall be deposited with the trustee or other holder of a Qualified Lien (under
conditions such that no transfer of ownership or possession of such Qualified Lien Bonds
representing such increase by the trustee or other holder of such Qualified Lien is
permissible except upon a default
67
s9.ra
thereunder, or except to the Trustee hereunder to be held subject to the provisions of
Article X hereof, or to the trustee or other holder of a Qualified Lien for cancellation, or to be
held uncancelled under the terms of a Qualified Lien under like conditions); that it will not
apply under any provision ofthis Indenture for the authentication and delivery ofany bonds
or the withdrawal ofcash or the release ofproperty by reason ofthe deposit with the Trustee
of such Qualified Lien Bonds representing such increase; and that it will not apply under any
provision of any Qualified Lien (i) for the withdrawal of cash (which, after giving effect to the
provisions of Section 13.06 hereof, is then deemed to be Funded Cash) held by the trustee or
other holder of such Qualified Lien on the basis of Funded Property, unless such cash so
withdrawn shall be deposited with the Trustee hereunder, to be held as part of the
Mortgaged and Pledged Property, and to be withdrawn, used or applied in the manner, to the
extent, and for the purposes and subject to the conditions provided in Section 13.06 hereof
with respect to cash deposited under the provisions of Section 13.03 hereof, or (ii) for the
release of obligations secured by purchase money mortgage (the proceeds of which, after
giving effect to the provisions of Section 13.06 hereof, would then be deemed to be Funded
Cash) held by the trustee or other holder of such Qualified Lien on the basis of Funded
Property, unless such obligations so released shall be delivered to the Trustee hereunder, to
be held as part of the Mortgaged and Pledged Property, and to be released and otherwise
dealt with, in the manner, to the extent, and for the purposes and subject to the conditions
provided in Section 13.06 hereof with respect to obligations secured by purchase money
mortgage received by the Trustee in consideration ofthe release ofproperty.
The Company hereby covenants that, upon the cancellation and discharge of any other
lien prior hereto (upon property subject to the Lien hereof), securing indebtedness, other
than Qualified Lien Bonds, the Company will cause all cash, purchase money obligations and
other property then held by the trustee or other holder of such lien, which were received by
such trustee or other holder by reason of the release of, or the purchase by a governmental
authority or its designee of, or which represents the proceeds of the taking by eminent
domain of, or insurance on, any of the Mortgaged and Pledged Property (including all
proceeds of or substitution for any thereof) to be paid and/or delivered to and/or deposited
with the Trustee hereunder, to be held as part ofthe Mortgaged and Pledged Property, any
such cash and./or purchase money obligations
Conditions on withdrawal of
cash or release of obligations
held under Qualified Lien
Deposit with Trustee of
certain property upon
discharge of prior lien.
Annual Certificate ofNo
Default
Requirements upon deposit
of prior lien bonds.
68
$$9.r3, 9.14; Art. X S10.0r
constituting a part thereof to be paid over, withdrawn, used or applied in the manner, to the
extent, and for the purposes and subject to the conditions provided in Section 13.06 hereof
with respect to cash and purchase money obligations deposited under the provisions of
Section 13.03 hereof, and any other property constituting a part thereofto be subject to use
and release as provided with respect to such property in Article XIII hereof.
Nothing in this Indenture contained shall be deemed to limit the right of any successor
to the Company under the provisions of Article XVIII hereof which shall not have caused
this Indenture or any indenture executed as in Section 18.02 hereof provided to become a
lien upon any of the properties or franchises of the successor corporation except as
contemplated by clauses (a), @) and (c) ofSection 18.03 hereofto increase the indebtedness
secured by lien upon any of its properties or franchises not subject to the Lien of this
Indenture or ofany such indenture executed as in Section 18.02 hereofprovided.
Section9.14 The Company hereby covenants that it will deliver tothe Trustee, on or
before October 1, 1989 and each October 1 thereafter, a written statement (which need not
comply with Section22.05 hereof) signed by an Authorized Executive Officer of the
Company, and by its Secretary or an Assistant Secretary or an Authorized Financial Offrcer
ofthe Company, stating, as to each signer thereof, that, to the best ofhis or her knowledge,
the Company has fulfilled all its obligations under this Indenture throughout the preceding
calendar year, or, if there has been a default in the fulfillment of any such obligation,
specifuing each such default known to him or her and the nature and status thereof.
ARTICLE X
Concerning Bonds Secured by Lien Prior to
the Lien Hereof Deposited with Trustee
Section 10.01 Each bond secured by lien prior hereto, upon property subject to the
Lien hereof, in coupon form deposited with the Trustee shall be accompanied by all
unmatured coupons when so deposited, or shall be accompanied by evidence satisfactory to
the Trustee (which may be a certificate of the mortgagee or trustee under the lien prior
hereto securing the same) that the discharge ofthe lien securing such bond may be obtained
without the production of any coupon or
69
$$r0.01, 10.02
coupons that may be missing; and each bond secured by any such lien prior hereto so
deposited shall be uncancelled. Each bond secured by any such lien prior hereto deposited
hereunder shall be in bearer form or accompanied by appropriate instruments of transfer;
and the Trustee may cause any or all registered bonds deposited under this Article X to be
registered in its name as Trustee, or otherwise, or in the name or names of its nominee or
nomineeg.
Section 10.02 A11 bonds secured by lien prior hereto, upon property subject to the Lien
hereof, received by the Trustee for the purpose ofthis Article X shall be held by the Trustee,
as part of the Mortgaged and Pledged Property and without impairment of the lien thereof,
for the protection and further security of the bonds issued hereunder. Except during the
continuance of a Default, no payment by way of principal, interest or otherwise on any of the
bonds secured by any such lien prior hereto held by the Trustee shall be made or demanded
and the coupons (if any) thereto appertaining as they mature shall be cancelled by the
Trustee and delivered so cancelled to the Company, unless the Company shall, by an
instrument in writing, signed by an Authorized Executive Officer of the Company, and by its
Secretary or an Assistant Secretary or an Authorized Financial OfEcer ofthe Company, and
delivered to the Trustee, elect with respect to any of such bonds, to have such payments
made and demanded, in which event the Company shall, subject to the provisions hereinafter
in this Section contained, be entitled to receive all such payments. In any event, except
during the continuance of a Default as aforesaid, all cash received by the Trustee (a) on
account of the principal of or interest or premium on said bonds, or (o) by reason of the sale
or delivery of any of said bonds to the sinking fund or other similar device for the retirement
of bonds provided for in any lien securing the same (as to both (a) and @) above, to the extent
that an Offrcers' Certificate delivered to the Trustee shall state that such cash is not cash
which, after giving effect to the provisions of Section 13.06 hereof, is then deemed to be
Funded Cash), shall be paid over by the Trustee to or upon the order of the Company;
provided that, in the absence of such statement, the same shall be retained by the Trustee
and held as part of the Mortgaged and Pledged Property, to be withdrawn, used or applied,
in the manner, to the extent, and for the purposes, and subject to the conditions provided in
Section 13.06 hereof with respect to cash deposited under the provisions of Section 13.03
hereof.
Prior Iien bonds deposited
with Trustee part of
Mortgaged and Pledged
Property.
No payment ofprincipal or
interest except in Default
Conditions on cancellation or
sale of prior lien bonds by
Trustee
70
s10,03
Section 10.03 Except during the continuance of a Default, the Trustee, on the written
request of the Company, signed by an Authorized Executive Officer of the Company, and by
its Secretary or an Assistant Secretary or an Authorized Financial Officer of the Company,
shall cause any bonds secured by lien prior hereto, upon property subject to the Lien hereof,
held by it under this Article X to be cancelled, and the obligation thereby evidenced to be
satisfied and discharged; provided, however, that it shall have received notice from the
trustee or other holder of the lien securing the same that such trustee or other holder, on
receipt of the bonds so held by the Trustee, will cause the lien securing the same to be
satisfied and discharged of record; and provided, further, that the Trustee shall not be
required to cause any bonds so held by it to be cancelled or to be surrendered for
cancellation pursuant to the foregoing provisions of this Section, unless and until the
Trustee shall have received an Opinion of Counsel to the effect that there is no outstanding
Iien (other than Excepted Encumbrances) covering any part of the Mortgaged and Pledged
Property upon which such lien exists junior to such lien and senior to the Lien hereof. Upon
similar request the Trustee shall sell (on such terms as the Company shall designate) or
surrender any bonds held by it subject to this Article X to the trustee or other holder of the
lien securing the same to be held uncancelled for the purposes of any improvement or
sinking fund or other similar device for the retirement of bonds for which provision may
have been made in the lien securing the bonds so sold or surrendered, or for cancellation,
provided, however, that no such bonds shall be sold or surrendered except for cancellation
as aforesaid until the Trustee shall have received an Opinion of Counsel to the effect (a) that
the provisions of the lien securing the bonds so to be sold or surrendered are such that no
transfer of ownership or possession of such bonds by the trustee or other holder of such lien
is permissible thereunder except upon default thereunder or except to the Trustee
hereunder, to be held subject to the provisions of this Article X, or to the trustee or other
holder of any such lien prior hereto, for cancellation or to be held uncancelled under the
terms ofa lien prior hereto, upon property subject to the Lien hereof, under like conditions,
or @) that all of the property subject to the lien, with respect to which such bonds have been
deposited with the Trustee, has been released from the Lien of this Indenture, which shall
be stated in any event if such be the fact; and provided further that if all of the property
subject to any lien securing bonds deposited under this Article X shall have been released
from the Lien ofthis Indenture, such bonds as shall thereupon
7t
$$r0.08, r0.04
cease to be bonds secured by property subject to the Lien of this Indenture shall be
surrendered forthwith by the Trustee to the Company upon its written request signed by an
Authorized Executive Officer of the Company, and by its Secretary or an Assistant Secretary
or an Authorized Financial Officer of the Company.
Prior to any sale or surrender of bonds by the Trustee in accordance with the foregoing
provisions of this Section, there shall be delivered to the Trustee an Engineer's Certificate,
made and dated not more than ninety (90) days prior to the date of the Company's request
for such sale or surrender, stating the fair value, in the opinion ofthe signers, ofthe bonds to
be sold or surrendered, and stating that, in the opinion ofthe signers, the release thereofwill
not impair the security under this Indenture in contravention ofthe provisions hereof.
On the request of the Company evidenced by an Officers' Certificate, the Trustee shall
permit the extension of the maturity of and"/or any other modification of any bonds (other
than Class "1t'' Bonds or any other bonds of which the Company is the obligor) held by the
Trustee subject to the provisions of this Article X and/or any modification of a lien prior to
the Lien hereof.
Modification of terms of prior
lien bonds
Section 10.04 Upon the occurrence of any Default, the Trustee may exercise any and all
rights of a bondholder with respect to the bonds then held by it under this Article X (other
than the right to sell or otherwise alienate Class "lf' Bonds or other bonds of which the
Company is the obligor so as to increase the aggregate of the Company's debt) or may take
any other action which shall in its judgment be desirable or necessary to avail itself of the
security created for such bonds by the liens securing the same.
Rights of Trustee upon
Default
Concerning payments on
Class "A" Bonds
Conceming deposit of
Class "A" Bonds
Voting of Class "A" Bonds
held by Trustee
72
Art. )il, $$[.0r, r1,02, 11.03
ARTICLE XI
Concerning Class "A,'Bonds and Additional
Class ttA" Mortgages
Section 11.01 The Trustee shall notify the trustees of the Class "lt'' Mortgages
securing Class "A" Bonds held hereunder that no payments are to be made on such held
Class "A" Bonds unless a Default hereunder has occurred and is continuing and that the
Trustee will notify such trustees of any such Default.
Section 11.02 Each Class "1t'' Bond deposited with the Trustee pursuant to
Section 4.01 hereof shall be (l) in bearer form, (2) registered in the name of the Trustee or
its nominee or (3) accompanied by appropriate instruments of transfer. Each such Class "It''
Bond in coupon form so deposited shall be accompanied by all unmatured coupons when so
deposited and each such Class "A" Bond so deposited shall be uncancelled. The Trustee may
cause any or all registered Class "/t''Bonds to be registered in the name ofthe Trustee, or in
the name or names of its nominee or nominees.
Section 11.03 Unless the Company is in default in the payment of the interest on any
bonds then Outstanding hereunder or one or more Defaults shall have occurred and be
continuing:
(a) the Trustee shall vote all bonds issued under the Pacific Mortgage then held by it,
or consent with respect thereto, in favor of any or all amendments or modifications of the
Pacific Mortgage of substantially the same tenor and effect as any or all of those set forth
in Exhibit X to this Indenture;
(b) the Trustee shall vote all bonds issued under the Utah Mortgage then held by it,
or consent with respect thereto, in favor of any or all amendments or modifications of the
Utah Mortgage of substantially the same tenor and effect as any or all of those set forth
in Exhibit Y to this Indenture; and
(c) with respect to any other amendments or modifications of a Class "It'' Mortgage,
the Trustee shall vote all Class "It'' Bonds Outstanding under said Mortgage and then
held by it, or consent with respect thereto, proportionately with the vote or consent ofthe
holders of all other Class "It'' Bonds then voting in person or by proxy or consenting in
writing under the Class "A" Mortgage (other than
73
$$11.03, r1.04, 1r.05, 11.06
Class "It'' Bonds similarly either deposited or pledged); provided, however, if the Class "/t''
Bonds held by the Trustee are more adversely affected than any Class "lf' Bonds not so
held, then the Trustee need not so vote without the consent in writing ofthe holders ofa
majority in principal amount of the bonds Outstanding hereunder.
Section 11.04 The Company covenants that it will not issue any additional Class "lt''
Bonds except to the Trustee hereunder or, as permitted by the provisions of the applicable
Class "1t'' Mortgage, to replace Class "It''Bonds at the time Outstanding.
Section 11.05 The Company covenants that it will not issue any additional Class "lf'
Bonds under any provision of any Class "A" Mortgage that permits the issuance of new first
mortgage bonds on the basis of first mortgage bonds retired (e.9., Section 29 of the Pacific
Mortgage or Section 29 of the Utah Mortgage), except for delivery to the Trustee pursuant to
the provisions ofSection 4.01 hereofas the basis for the authentication and delivery ofbonds
hereunder in connection with which an Officers' Certificate is delivered to the Trustee
stating that such bonds are to be issued to refund bonds issued hereunder on the basis of
such Class "/t'' Bonds retired, or to refund Class "ll'Bonds issued by PacifiCorp, an Oregon
corporation, or by its predecessors, PacifiCor?, a Maine corporation (earlier known as Pacific
Power & Light Company), or Utah Power & Light Company, a Utah corporation, or its
predecessor, Utah Power & Light Company, a Maine corporation, prior to the merger of those
corporations into the Company, or to refund bonds hereinafter designated as Class "/t''Bonds
issued by any coryoration prior to its merger into or consolidation with the Company
hereafter.
Section 11.06 (I) In the event that a corporation which was the mortgagor under a
mortgage or deed of trust or similar indenture qualified under the Trust Indenture Act is
hereafter merged into or consolidated with the Company, such mortgage, deed of trust or
similar indenture may be designated an additional Class "lt'' Mortgage hereunder, upon
delivery to the Trustee of the following:
Concerning issue of
additional Class "A" Bonds
Conditions for issuance of
additional Class "A" Bonds
Designation of additional
Class "A" Mortgages
Requirements:
(a) a Resolution authorizing the designation of such mortgage, deed of trust or similar (a) Resolution
indenture as an additional Class "1t''Mortgage hereunder;
74
$rr.06
(b) Offi cers' Certifi cate
(c) Opinion ofCounsel
(b) an Officers' Certificate complying with the requfuements of Section 22.05 hereof,
(i) stating that the Company is not in default under such mortgage, deed of trust or
similar indenture, (ii) reciting the aggregate principal amount of bonds theretofore
issued under such mortgage, deed of trust or similar indenture and the aggregate
principal amount of bonds then outstanding thereunder, and (iii) either (x) stating that
aII bonds outstanding under such mortgage, deed of trust or similar indenture that were
issued on the basis of property additions were issued in principal amounts that did not
exceed seventy per centum (70%) ofthe balance ofthe cost or fair value ofsuch property
additions to the issuer of such bonds (whichever was less) after making deductions and
additions similar to those provided for in Section 1.04 hereof or in Section 4 of the Pacific
Mortgage or in Section 4 of the Utah Mortgage, or (y) in the event that the foregoing
clause (x) is not the case, stating that the Company has @y the certification of the
requisite amounts of previously unfunded property additions as set forth in an
Engineer's Certificate in the form prescribed by subsection 28(3) of the Pacific Mortgage
or subsection 28(3) of the Utah Mortgage or the comparable section of such other
mortgage, deed or trust or similar indenture) irrevocably waived its right to the
authentication and delivery of further bonds under such mortgage, deed of trust or
similar indenture in a principal amount equal to the difference between the aggregate
dollar amount ofproperty additions certified to the trustee under such mortgage, deed of
trust or similar indenture as the basis for all bonds outstanding thereunder that were
issued on the basis ofproperty additions (and outstanding bonds issued on the basis of
retirements of bonds issued on the basis of property additions) and ten-sevenths
(10/7ths) ofthe aggregate principal amount of all such outstanding bonds; and
(c) an Opinion of Counsel complying with the requirements of Section 22.05 hereof,
stating the signer's opinion to the effect that: (i) the corporation that was the mortgagor
under such mortgage, deed of trust or similar indenture has been duly and lawfully
merged into or consolidated with the Company; (ii) such mortgage, deed of trust or
similar indenture is qualified under the Trust Indenture Act; (iii) the Company has duly
assumed and agreed to perform and pay the obligations of the mortgagor under such
mortgage, deed of trust or similar indenture; (iv) such mortgage, deed of trust or similar
75
$1r.06
indenture, when designated a Class "A" Mortgage pursuant to the provisions of this
Section 11.06, will constitute a lien upon the property described therein prior to the Lien
hereof; (v) the Lien hereof will constitute a lien on the property described in such
mortgage, deed of trust or similar indenture subject to no lien thereon prior or equal to
the Lien of this Indenture except Qualified Liens, Excepted Encumbrances and the lien of
such mortgage, deed of trust or similar indenture; (vi) the terms of such mortgage, deed oftrust or similar indenture as then in effect do not permit the further issuance of bonds
thereunder except on the basis of cash, property additions of a character substantially
similar to those described in Section 1.04 hereof or in Section 4 of the Pacific Mortgage or
in Section 4 of the Utah Mortgage, or the retirement of outstanding bonds; (vii) the terms
of such mortgage, deed of trust or similar indenture as then in effect do not permit the
further issuance of bonds thereunder upon the basis of property additions in a principal
amount exceeding seventy per centum (70o/o) of the balance of the cost or the fair value
thereof to the issuer thereunder (whichever shall be less) after making deductions and
additions similar to those provided for in Section 1.04 hereof or in Section 4 of the Pacific
Mortgage or Section 4 of the Utah Mortgage; and (viii) that the indenture supplemental
hereto referred to in subdivision (II) of this Section 11.06 complies with the requirements
of clauses (r), (ii) and (iii) of said subdivision (II).
(II) At such time as the Company and the Trustee have executed, and the Company
has caused to be recorded, an indenture supplemental hereto (i) in which such mortgage,
deed of trust or similar indenture has been designated as an additional Class "lf'
Mortgage, (ii) by which the Company has imposed the Lien of this Indenture upon
properties (ofthe character defined in Section 1.04 hereofas Property Additions) acquired
by the Company from such corporation by virtue of the merger or consolidation (and later
improvements, extensions and additions thereto and renewals and replacements thereof)
as contemplated by Section 18.03 hereo{ and (iii) by which such mortgage, deed of trust
or similar indenture has been amended to provide that a default thereunder shall include
the existence of any 'Default," as defined under the Pacific Mortgage, or the existence of
any "Default," as defined under the Utah Mortgage, or the existence of any default under
another Class "/t''
Status of additional Class "A"
Mortgages and additional
CIass "A'n Bonds
What bonds redeemable
Redemption of part of any
series; selection
Notice
76
$11.06; Art. )ilI. $$r2.01' 12.02
Mortgage, which then permits the declaration of the principal of all of the bonds secured by
such Class "/t''Mortgage and the interest accrued thereupon due and payable (provided that
if such default or Default under such Class "1t'' Mortgage shall be remedied or cured by the
Company or waived by the holders of such indebtedness, then the default under such
mortlage, deed of trust or similar indenture by reason thereof shall be deemed likewise to
have b"en thereupon remedied, cured or waived without further action upon the part of any
party), then such mortgage, deed of trust or similar indenture and all bonds issued and
outslanding thereunder shall for all purposes hereof be treated as a Class "A" Mortgage and
as Class "A" Bonds to the full and same extent as if specifically identified in Section 1.02
hereof.
ARTICLEXII
Redemption or Purchase of Bonds
Section 12.01 Such ofthe bonds of any series issued hereunder as are, by their terms,
redeemable before maturity, may, at the option of the Company oI pursuant to the
requirements of this Indenture be redeemed at such times, in such amounts and at such
prices as may be specified therein and in accordance with the provisions of the three next
succeeding Sections numbered from 12.02 to 12.04, both inclusive.
Section 12.02 If less than all the Outstanding bonds of any series are to be redeemed,
the particular bonds to be redeemed shall be selected by the Trustee from the Outstanding
bonds of such series which have not previously been called for redemption by such method
as the Trustee shall deem fair and appropriate. Notwithstanding the foregoing, special
provisions for the selection of the particular bonds to be redeemed within a particular series
may be provided by a supplemental indenture to this Indenture.
Unless otherwise established in accordance with Section 2.03 with respect to a particular
series of bonds, notice of redemption to owners and/or holders of any bonds which are not
registered as to both principal and interest or as to only principal shall be given, by or on
behalf of the Company, by publication in one Daily Newspaper of general circulation in the
Borough of Manhattan, The City of New York, and in one Daily Newspaper of general
circulation in the City of Portland, Oregon, once before the date fixed for redemption, the
publication to be at least thirty
Failure duly to give such notice by publication and./or by mailing to the owner or holder of Failure to sive notice does not
any bond designated for redemption in whole or in part shall not affect the validity of the errectvardrtv
proceedings for the redemption of any other bond.
77
$r2.02
(30) days prior to the date fixed for redemption. Ifless than all bonds ofany particular series
are to be redeemed, unless otherwise provided as to a particular series of bonds, the numbers
of any bonds to be redeemed which are not so registered shall be included in such notice and
may be stated: individually; in groups from one number to another number, both inclusive,
except such as shall have been previously called for redemption or otherwise retired; or in
any other way satisfactory to the Trustee.
Unless otherwise so provided as to a particular series of bonds, notice of redemption to
the registered owner of any bond registered as to principal and interest or as to principal
only which is to be redeemed in whole or part shall be mailed by or on behalf of the
Company, not less than thirty (30) days before the date fixed for redemption, to him, her orit, at his, her or its last address appearing upon the registry books.
Unless otherwise so provided as to a particular series of bonds, if at the time of
publication or mailing of any notice of redemption the Company shall not have deposited
with the Trustee and/or irrevocably directed the Trustee to apply, from money held by it
available to be used for the redemption of bonds, an amount in cash sufficient to redeem allof the bonds called for redemption, including accrued interest to such date fixed for
redemption, such notice shall state that it is subject to the receipt of the redemption moneys
by the Trustee before the date fixed for redemption (unless such redemption is mandatory)
and such notice shall be ofno effect unless such moneys are so received before such date.
The Trustee, upon the request ofthe Company evidenced by a Resolution delivered to the
Trustee at least fifteen (15) days prior to the date on which notice of redemption must first be
published or mailed (unless a shorter notice shall be accepted by the Trustee as sufficient)
shall, for and on behalf of and in the name of the Company, call for redemption bonds
secured hereby (whether or not the Trustee shall hold at the time of such call cash sufficient
for such redemption) provided that, if cash sufficient for such puryose is not so held and such
redemption is not mandatory, the notice shall state that it is subject to the receipt of the
redemption moneys by the Trustee before the date fixed for
Notice to be mailed at least
thirty days before redemption
Redemption may be
conditional on deposit of
moneys
Deposit of redemption priee
with Trustee
Moneys to be paid to
respective holders upon
surrender ofbonds and
unmatured coupons
Bonds cease to bear interest
Redemption of portion of
registered bond
Purchase of bonds by
Trustee
78
$$12.02, 12,03, 12.04, 12.05
redemption and such notice shall be of no effect unless such moneys are so received before
such date.
Section 12.03 Publication of the notice of redemption, if required, having been
completed. as above provided, or if mailing is required, notice of redemption having been
mailed, as in Section 12.02 hereof provided, and the Company having before the redemption
date specified in the notice of redemption deposited with the Trustee (and/or having
irrevocably directed the Trustee to apply, from money held by it available to be used for the
redemption of bonds) an amount in cash suffrcient to redeem all of the bonds called for
redemption, including accrued interest, the bonds called for redemption shall become due
and payable on such redemption date.
Section 12.04 AII moneys held by the Trustee for the redemption of bonds shall,
subject to the provisions of Section22.03 hereof, be held in trust for account of the holders of
the bonds so to be redeemed, and shall be paid to them, respectively, upon presentation and
surrender of said bonds, with (if required by the Company) all unmatured coupons, if any,
appertaining thereto. Coupons maturing on or prior to the date fixed for redemption shall
remain payable in accordance with their terms. On and after such date fixed for redemption,
if the moneys for the redemption of the bonds to be redeemed shall be held by the Trustee
for the pu{pose, such bonds shall cease to bear interest and shall cease to be entitled to the
Lien ofthis Indenture and the coupons for interest, ifany, maturing subsequent to the date
fixed for redemption shall be void.
If any fully registered bond shall be called for redemption in part only, the notice of
redemption shall specify the principal amount thereof to be redeemed, and such fully
registered bond shall be presented for cancellation properly endorsed for transfer (if
required by the Company) at or after the date fixed for the redemption of said bonds so
called for redemption, and thereupon the payment with respect to said bond shall be made
upon surrender of said bond so endorsed (if required), and coupon bonds or fully registered
bonds for the unpaid balance of the principal amount of the fully registered bond so
presented and surrendered shall to the extent authorized be executed by the Company and
authenticated and delivered by the Trustee without charge therefor to the holder thereof.
Section 12.05 At any time, upon the request of the Company, expressed by an Officers'
Certificate, the Trustee shall, to the extent that
79
$$r2.06, 12.06
such bonds are available for such purchase, apply all or any part ofthe cash held by it under
any provision ofthis Indenture, subject to the provisions ofSections 7.03 and 12.04 hereof, or
any cash deposited with it by the Company for the purpose, to the purchase (including a
purchase from the Company) of bonds then Outstanding hereunder of such series as the
Company may designate. Before making any such purchase the Trustee may, and upon
request of the Company shall, by notice mailed in accordance with the provisions of
subdivision (c) of Section 19.13 hereof if all of the bonds then Outstanding hereunder of such
series are registered or the addresses of the holders thereof are on fi.Ie, otherwise published
once in one Daily Newspaper of general circulation in the Borough of Manhattan, The City of
New York, and in one Daily Newspaper of general circulation in the City of Portland,
Oregon, advertise for written proposals (to be received by it on or before a specified date) to
sell to it on or before a subsequent specified date bonds of the series designated by the
Company then Outstanding hereunder; and the Trustee, to the extent, as nearly as is
possible, of such funds then in its hands and requested by the Company to be so applied,
shall purchase the bonds so offered at the price or prices most favorable to the Company, and
reasonable notice shall be mailed by the Trustee to the holder or holders of the bonds whose
proposals shall have been accepted. The Trustee sha1l, upon request of the Company, invite
offers of bonds for sale to it in any other usual manner. The Trustee in its discretion may
reject any or all proposals in whole or in part, and shall reject any or all proposals in whole
or in part if on the same day after opening said proposals it has actual knowledge that it can
purchase the requisite amount ofsuch bonds or any part thereofat a price more favorable to
the Company than it could by accepting said proposals. All offers by holders shall be subject
to acceptance of a portion thereof unless otherwise expressed in the offers and all
advertisements for written proposals shall so state. Nothing herein contained shall be
deemed to prohibit the Company from purchasing or otherwise acquiring Outstanding bonds
in any manner it may deem appropriate.
Notice
Section 12.06 All bonds issued hereunder paid, retired or redeemed under any of the Retired bonds to be cancelled
provisions ofthis Indenture or purchased by the Trustee as provided in Section 12.05 hereof
and all appurtenant coupons, if any, shall forthwith be cancelled by the Trustee. Unless the
Company otherwise directs in writing, the Trustee shall periodically destroy any such
cancelled coupon bonds and deliver to the Company a certificate of such destruction, and
shall deliver any such cancelled fully registered bonds to the Company.
Company's possession and
enjoyment
What Company may do
without release or consent by
Trustee
(1) Sale ofmachinery
equipment, tools, etc.
(2) Cancellation, etc. of
right of way grants
(3) Surrender or
modification of
franchises
80
Art. )ilII, $$18.01, 13.02
ARTICLE XIII
Possession, Use and Release of Mortgaged
and Pledged Property
Section 13.01 Un1ess one or more Defaults shall have occurred and be continuing, the
Company shall be suffered and permitted to possess, use and enjoy the Mortgaged and
Pledged Property (except such cash as is expressly required to be deposited with the Trustee
and except, to the extent not herein otherwise provided, such securities as are expressly
required to be deposited with the Trustee), and to receive, use and dispose ofthe tolls, rents,
revenues, issues, earnings, income, products and profits thereof, with power in the ordinary
course of business, freely and without let or hindrance on the part of the Trustee or of the
bondholders, except as herein otherwise expressly provided to the contrary, to exercise any
and all rights under choses in action, contracts, franchises and claims.
Section 13.02 Unless the Company is in default in the payment of the interest on any
of the bonds then Outstanding hereunder or one or more Defaults shall have occurred and
be continuing, the Company may at any time and from time to time, without any release or
consent by, or report to, the Trustee:
(1) se[ or otherwise dispose of, free from the Lien of this Indenture, any machinery,
apparatus, equipment, frames, towers, poles, wire, pipe, tools, implements, or furniture,
or any other fixtures or personalty, then subject to the Lien hereof, which shall have
become old, inadequate, obsolete, worn out, unfit, unadapted, unserviceable, undesirable
or unnecessary for use in the operations ofthe Company upon replacing the same by, or
substituting for the same, machinery, apparatus, equipment, flames, towers, poles, wire,
pipe, tools, implements, or furniture, or any other fixtures or personalty, of at least equal
value to that of the property sold or otherwise disposed of and subject to the Lien hereof,
subject to no liens prior hereto except liens to which the property sold or otherwise
disposed of was subject;
(2) cancel or make changes or alterations in or substitutions of any and all right of
way grants; and
(3) surrender or assent to the modification of any right, power, franchise, license,
governmental consent or permit under which it may be operating, provided that, in the
opinion of the Board of
81
$$r3.02, r3.03
Directors (such opinion to be stated in a Resolution to be filed with the Trustee), any such
surrender or modification which affects the Mortgaged and Pledged Property is necessary
or desirable in the conduct ofthe business ofthe Company.
Section 13.03 Unless the Company is in default in the payment of the interest on any
bonds then Outstanding hereunder or one or more Defaults shall have occurred and be
continuing, the Company may obtain the release of any of the Mortgaged and Pledged
Property, except cash then held by the Trustee (provided, however, that Qualified Lien
Bonds deposited with the Trustee shall not be released except as provided in Article X hereof
and Class "A" Bonds deposited with the Trustee shall not be released except as provided in
Article XIV hereof and obligations secured by purchase money mortgage deposited with the
Trustee shall not be released except as provided in Section 13.06 hereof), and the Trustee
shall release all its right, title and interest in and to the same from the Lien hereof upon the
application of the Company and receipt by the Trustee of the following:
Release ofproperty by
Trustee
Requirements:
(1) an Offrcers' Certificate complying with the requirements of Section 22.05 hercof (1) offrcers'Certifrcate
and describing in reasonable detail the property to be released and requesting such
release, and stating that the Company is not in default in the payment of the interest on
any bonds then Outstanding hereunder and that no Default has occurred and is
continuing;
(2) an Engineer's Certificate, made and dated not more than ninety (90) days prior to (2) Engineer's certifrcate
the date ofsuch application, stating:
(a) that the Company has sold, Ieased, granted an interest in, exchanged,
dedicated or disposed of, or intends or has agreed to sell, lease, grant an interest in,
exchange, dedicate or dispose of, or that a governmental body or agency has lawfully
ordered the Company to divest itselfof, the property to be released;
@) the fair value and the Cost (or as to Property Additions constituting Funded
Property of which the fair value to the Company at the time the same became Funded
Property was less than the Cost as determined pursuant to Section 1.04 hereof, then
such fair value in lieu of Cost), in the opinion of the signers, of the property (or
securities) to be released;
(c) the Cost (or as to Property Additions of which the fair value to the Company at
the time the same became Funded
(3) Consid€ration
82
$13.03
Property was less than the Cost as determined pursuant to Section 1.04 hereof, then such
fair value in lieu ofCost), in the opinion ofthe signers, ofany portion thereof(which shall be
specified) that is Funded Property;
(d) that (except in any case where a governmental body or agency has lawfuIly ordered
the Company to divest itself of such property) such release is in the opinion of the signers
desirable in the conduct ofthe business ofthe Company;
(e) the amount of cash and,/or principal amount of obligations secured by purchase money
mortgage received or to be received for any portion of said property sold to any Federal,
State, County, Municipal or other governmental bodies or agencies or public corporations,
districts or authorities; and
(f) that in the opinion of the signers such release will not impair the security under this
Indenture in contravention ofthe provisions hereof;
(3) an amount in cash to be held by the Trustee as part of the Mortgaged and Pledged
Property, equivalent to the amount, if any, by which the Cost (or as to Property Additions
constituting Funded Property of which the fair value to the Company at the time the same
became Funded Property was less than the Cost as determined pursuant to Section 1.04
hereof, then such fair value in lieu of Cost) of the property to be released, as specified in the
Engineer's Certificate provided for in subdivision (2) above, exceeds the aggregate of the
following items:
(a) the principal amount, subject to the limitations stated below in this subdivision (3), of
any obligations delivered to the Trustee, to be held as part of the Mortgaged and Pledged
Property, consisting of obligations secured by purchase money mortgage upon the property
released;
G) the Cost or fair value to the Company (whichever is less) of any Property Additions
made the basis of the application which are not then Funded Property (after making any
deductions and any additions pursuant to the provisions of Section 1.04 hereof) as shown by
a further Engineer's Certificate (made and dated no more than ninety (90) days prior to the
date of such application) delivered to the Trustee; provided, however, that Property
Additions acquired, made or constructed within ninety
83
$r3.08
(90) days prior to the date of such application for release, or subsequently thereto, may, at
the option of the Company, not have deducted therefrom the deductions nor added thereto
the additions pursuant to Section 1.04 hereof;
(c) the aggregate principal amount of bonds to the authentication and delivery of which
the Company shall be entitled under the provisions of Sections 5.04 or 6.01 hereof, by virtue
of compliance with all applicable provisions of said Sections 5.04 or 6.01, as the case may be
(except as hereinafter in this Section otherwise provided); provided, however, that (except as
hereinafter in this Section otherwise provided) the application for such release shall operate
as a waiver by the Company of such right to the authentication and delivery of such bonds on
the basis of which right such property is released and to such extent no such bonds may
thereafter be authenticated and delivered hereunder, and any bonds or Qualified Lien Bonds
which have been made the basis of any such right to the authentication and delivery of bonds
so waived shall be deemed to have been made the basis of the release of such property;
(d) the principal amount, subject to the limitations stated below in this subdivision (3), of
any obligations secured by purchase money mortgage upon the property to be released and/or
any amount in cash, that is evidenced to the Trustee by a certificate of the trustee or other
holder of a Qualified Lien or a lien (other than a Class "ll' Mortgage) prior hereto, as the
case may be, to have been received by it in accordance with the provisions of such QualifiedLien or lien prior hereto in consideration for the release of such property or any part thereof
from such Qualified Lien or lien prior hereto;
(e) the aggregate principal amount of any bonds Outstanding under this Indenture
delivered to the Trustee; and
(0 any taxes and expenses incidental to such sale, exchange, dedication or disposal;
provided, however, that (i) no obligations secured by purchase money mortgage upon any
property being released from the Lien hereof
84
(4) Opinion ofCounsel otr Property
Additions
$r3.03
shall be used as a credit in any application for such release unless all obligations secured by
such purchase money mortgage shall be delivered to the Trustee or to the trustee or other
holder of a Qualified Lien or lien prior hereto; (ii) in case the total principal amount of
obligations secured by purchase money mortgage upon property being released shall exceed
seventy-five per centum (75o/o) of. the fair value of such property, as specified in the
Engineer's Certificate provided for in subdivision (2) above, the aggregate credit which may
be used pursuant to clause (a) and clause (d) of this subdivision (3) in respect of such
obligations shall not exceed seventy-five per centum (75o/o) of ttre fair value of the property to
be released, as specified in such Engineer's Certificate; and (iii) no obligations secured by
purchase money mortgage shall be used as a credit in any application for the release of
property hereunder, if the aggregate credit in respect of such obligations to be used by the
Co*pury pursuant to clause (a) and clause (d) of this subdivision (3) plus the aggregate
credits ,."d by the Company pursuant to said clause (a) and clause (d) in all applications for
the release of property theretofore released from the Lien hereof on the basis of purchase
money obligations theretofore delivered to and then held by the Trustee or the trustee or
other holder of a Qualified Lien or lien prior hereto shall, immediately after the release then
being applied for, exceed fifteen per centum (15%) ofthe aggregate principal amount ofbonds
at such time Outstanding under this Indenture;
(a) in the case where the release is on the basis of Property Additions, an Opinion of
Counsel as required by Section 5.06(7) hereof;
(5) in case any obligations secured by purchase money mortgage upon the property to
be released are included in the consideration for such release and are delivered to the
Trustee or to the trustee or other holder of a Qualified Lien or a lien prior hereto in
connection with any release of such property, an Opinion of Counsel stating that, in his or
her or their opinion, such obligations are valid obligations enforceable in accordance with
their terms, except as limited by bankruptcy, insolvency, reorganization, moratorium or
other laws affecting the enforcement of mortgagees' and other creditors' rights and by
general equitable principles (regardless of whether such enforceability is considered in a
proceedini in equity or at law), and that the purchase money mortgage securing the same
is suffrcient
(5) Opinion ofCounsel on purchase
money mortgsgg €tc.
85
$r3.03
to afford a valid purchase money lien upon the property to be released, subject to no lien
prior thereto except Excepted Encumbrances and such liens, if any, as shall have existed
thereon just prior to such release as Qualified Liens or liens prior to the Lien of this
Indenture;
(6) in case the Trustee is requested to release any franchise, an Opinion of Counsel
stating that in his or her or their opinion such release will not impair to any material
extent the right of the Company to operate any of its remaining properties; and
(7) an Opinion of Counsel semplying with the requirements of Section 22.05 hereof.
(6) Opinion of
Counsel if franchise to be
r€lssed
(7) Opinion ofCounsel on
All purchase money obligations and the mortgages securing the same delivered to the
Trustee pursuant to this Section shall be duly assigned to the Trustee. The Company shall
cause any such purchase money mortgage and the assignment thereof to be promptly
recorded and filed in such place or places as shall be required by law in order fuIly to
preserve and protect the security afforded thereby and shall furnish to the Trustee an
Opinion of Counsel stating that in the opinion of such counsel such purchase money
mortgage and the assignment thereof have been properly recorded and filed so as to make
effective the lien intended to be created thereby. Should any re-recording or re-filing be
necessary at any time or from time to time, the Company shall litewise cause the same to be
duly effected and sha1l, in each case, furnish to the Trustee an Opinion of Counsel similar to
the foregoing. The Trustee shall deliver to the Company any purchase money mortgage
and-/or assignment thereof whenever required for the purpose of recording or filing or re-
recording or re-filing, as evidenced by an Opinion of Counsel, and the same shall be promptly
returned to the Trustee when such purposes shall have been accomplished.
In case the release ofproperty is, in whole or in part, based upon Property Additions (as
permitted under the provisions of clause (b) of subdivision (3) of thie Section), the Company
shall, subject to the provisions of said clause @), comply with all applicable provisions of this
Indenture (including but not limited to the furnishing of the Engineer's Certificate provided
for in subdivision (3) of Section 5.06 hereof and, in case the provisions of subdivision (4) of
Section 5.06 hereof are applicable, the Independent Engineey's Certificate provided for in
said subdivision (4) of Section 5.06 hereof) as if such Property Additions were made the
Conditions if relesse based on
Property Additionsi bonds retired
hereundcr, €tc.
86
$13.08
Vdurtion of property subject to
Qualificd Lien or prior lien
basis of an application for the authentication and delivery of bonds thereon (equivalent in
principal amount to seventy per centum (70%) ofthe fair value ofthat portion ofthe property
to be released which is to be released on the basis of such Property Additions, as shown by
the Engineer's Certificate in subdivision (2) of this Section provided for), and in case the
release of property is in whole or in part based upon the right to the authentication and
delivery of bonds (as permitted under the provisions of clause (c) of subdivision (3) of this
Section) the Company shall comply with all applicable provisions of Section 5.04 or
Section 6.01 hereof, as the case may be, relating to such authentication and delivery, except
that in no such case shall the Company be required to comply with any earnings requirement
or to deliver to the Trustee any Resolution, Offrcers' Certificate, Net Earning Certificate or
Opinion of Counsel provided for in subdivisions (1), (2), (6) and (8) of Section 5.06 hereof;
provided, however, that the Cost of any Property Additions received or to be received by the
Company in whole or in part as consideration in exchange for the property to be released
shall for all purposes of this Indenture be deemed to be the amount stated in the Engineer's
Certificate provided for in subdivision (2) of this Section to be the fair value of the property to
be released (a) plus the amount of any cash and the fair value of any other consideration,
further to be stated in such Engineer's Certificate, paid and/or delivered or to be paid and/or
delivered by, and the amount of any obtigations assumed or to be assumed by, the Company
in connection with such exchange as additional consideration for such Property Additions or
(b) less the amount of any cash and the fair value to the Company of any other consideration,
which shall also be stated in such Engineer's Certificate, received or to be received by the
Company in connection with such exchange in addition to such Property Additions.
For all purposes of this Article XIII, the fair value of property subject to a Qualifred Lien
shall be determined as if such property were free of such Qualified Lien and the fair value of
property subject to a lien prior to the Lien hereof, which has not theretofore or is not then to
become a Qualified Lien shall be the fair value thereof less the principal amount of any
obligations secured by such lien thereon ifit will thereafter cease to be a lien on any property
subject to the Lien hereof.
Notwithstanding any of the other provisions of this Indenture, (A) to the extent that any
property to be released is not Funded Property and the Property Additions made the basis of
such release
Property Additions made brsis of
releese of unfunded property do not
become Funded Property
87
$r3.08
shall (as evidenced by a statement to such effect in an Engineer's Certificate) neverpreviously have been used as the basis of the release of property under the provisions of
clause (b) of subdivision (3) of this Section or as the basis of the withdrawal of cash under
subdivision (l) of Section 13.06 or under a Qualified Lien, said Property Additions shall not
have the status of Funded Property except to the extent of any amount which shall, at the
time such Property Additions were made the basis of such release, have been deducted foom
the Cost or fair value of such Property Additions pursuant to the provisions of clause (A) of
Section 1.04 hereof less any amount which shall then have been added thereto pursuant to
the provisions of clause @) of said Section 1.04, and except to the extent of any amount
which shall then have been deducted in respect of Qualified Liens on such Property
Additions pursuant to the provisions of Section 5.04 hereof, and
@) to the extent that any property released shall not have been Funded Property just
prior to its release,
(i) any Property Additions made the basis of such release of property shall not be
deemed to be Funded Property except to the extent of any amount which shall, at the time
such Property Additions were made the basis of such release, have been deducted from the
Cost or fair value of such Property Additions pursuant to the provisions of clause (A) of
Section 1.04 hereof less any amount which shall then have been added thereto pursuant to
the provisions of clause (B) of said Section 1.04, and except to the extent of any amount
which shall then have been deducted in respect of Qualified Liens on such Property
Additions pursuant to the provisions ofSection 5.04 hereof, and
(ii) any waiver of the right to the authentication and delivery of bonds made the basis
ofsuch release ofproperty shall be revoked and cease to be effective and shall no longer be
deemed to have been made, if the Company shall within two years after the release of suchproperty frle with the Trustee such Officers' Certificates, Engineer's
Certificates, Independent Engineer's Certificates, Opinions of Counsel and other papers
(other than any Resolution, Net Earning Certificate or Opinion of Counsel such as is
described in subdivisions (1), (6) and (8) of Section 5.06 hereof) as under the provisions of
Article V hereof
Provisions re release ofcertrin
property which is not Fund€d
Prop€rty
Substituted property to become
subject to Lien h€reof
Rclcase of property which is not
Funded Property
88
$$13.03, r3.04
would entitle the Company, on the basis of Property Additions acquired, made or
constructed subsequent to the application for the release of such property, to the
authentication and delivery ofbonds (equal in principal amount to seventy per centum
(70%) of. the fair value of such property so released), and the inclusion of such
subsequently acquired Property Additions in any such Officers' Certificate, Engineer's
Certifrcate, Independent Engineer's Certificate, Opinion of Counsel or other papers
shall not make such subsequently acquired Property Additions Funded Property.
Any bonds Outstanding under this Indenture deposited with the Trustee pursuant to the
provisions of subdivision (3)(e) of this Section shall forthwith be cancelled by the Trustee,
and any Qualified Lien Bonds deposited with the Trustee pursuant to the provisions of this
Section shall be held by the Trustee subject to the provisions of Article X hereof and any
moneys and./or obligations secured by purchase money mortgage and./or other property and/or
the proceeds of any thereof and/or substitutes therefor received by the Trustee under this
Section shall be held as part of the Mortgaged and Pledged Property and such moneys and/or
obligations secured by purchase money mortgage shall be paid over, withdrawn, used or
"ppii"d, in the manner, to the extent, and for the purposes and subject to the conditions
provided in Section 13.06 hereof'
Any property acquired by the Company by exchange or purchase to take the place of any
property released under any provisions of this Article shall forthwith and without further
"o*yurr"" become subject to the Lien of and be covered by this Indenture as a part of the
Mortjaged and Pledged Property, subject to no lien except Class "It'' Mortgages, Qualified
Liens and Excepted Encumbrances and any liens existing thereon just prior to the
acquisition thereof.
Section 13.04 Unless the Company is in default in the payment of the interest on any
bonds then Outstand.ing hereunder or one or more Defaults shall have occurred and be
continuing, the Company may obtain the release of any of the Mortgaged and Pledged
Property tutrl"f, is nol Funded Property, except cash then held by the Trustee (provided,
however, that Qualified Lien Bonds deposited with the Trustee shall not be released except
as provided in Article X hereof and Class "A" Bonds deposited with the Trustee shall not be
released except as provided in
89
s13.04
Article XIV hereof and obligations secured by purchase money mortgage deposited with Requircments:
Trustee shall not be released except as provided in Section 13.06 hereof), and the Trustee
shall release aII its right, title and interest in and to the same from the Lien hereof upon
application of the Company and receipt by the Trustee of the following (in lieu of complying
with the requirements of Section 13.03 hereof):
(f) An Offrcers' Certificate stating that the Company has sold, leased, granted an
interest in, exchanged, dedicated or disposed of, or intends to sell, lease, grant an interest
in, exchange, dedicate, or dispose of, or that governmental body or agency has lawfully
ordered the Company to divest itself of, certain property (which property shall be
described in such certificate in reasonable detail) that is not Funded Property and stating
the consideration, if any, received or to be received therefor, and requesting the release
thereof from the Lien of this Indenture; and stating that such property has not
theretofore been funded; that such release is in the opinion ofthe signers desirable in the
conduct of the business of the Company; and that the Company is not, to the knowledge
of the signers, in default in the performance of any of the terms or covenants of this
Indenture; and that in the opinion ofthe signers all conditions precedent provided for in
this Indenture relating to the release of the property in question have been semplied
with;
(1) Officero'Certifiote
(2) (a) An Engineer's Certificate, made and dated not more than ninety (90) days (2)Etrginecr'scertificrt€
prior to the date of such application, (x) stating, in the opinion of the signers, the then
fair value of the property to be released (which property shall be described in such
certificate in reasonable detail) without deduction for any liens on such property; and
(y) stating that, in the opinion of the signers, such release will not impair the security
under this Indenture in contravention ofthe provisions ofthis Indenture;
(b) In the case the fair value of such property to be released and of all other property
released from the Lien of this Indenture since the commencement of the then current
calendar year, as shown by certificates filed pursuant to Article XIII hereof, is ten per
centum (10%) or more of the aggregate principal amount of bonds Outstanding at the
time of the application then being made, an Independent Engineer's Certificate stating in
substance, the then fair value, in the opinion ofthe signers, ofthe property to be released,
without deduction for any lien on such property; and that such release, in the
(3) Further Engineer's Certificate
(4) Opinion ofCounsel
Relcrs€ ofc€rtain unimprovcd real
estrte upon requ€st of ComPrny
Requirements:
(l) Engineer's Certificate
90
ssls.04, 13.06
opinion of the signers, will not impair the security under this Indenture in contravention
of the terms of this Indenture; provided, however, that no Independent Engineer's
Certificate need be d.elivered to the Trustee in the case of any release of property if the
fair value thereof, as shown by the certificate filed pursuant to paragraph (a) of this
subdivision (2), is less than Twenty-five Thousand Dollars ($25,000) or less than one per
centum (1%) of the aggregate principal amount of bonds at the time Outstanding;
(3) A further Engineer's Certificate, made and dated not more than ninety (90) days
prior to the date of such application, stating, in the opinion of the signers, that the
aggregate principal amount of bonds to be Outstanding under this Indenture immediately
after such release shall not exceed seventy per centum (70o/o) of. the aggregate fair value
ofthe then Funded Property ofthe Company; and
(a) An Opinion of Counsel to the effect that all conditions precedent provided for in
this Indenture relating to the release of the property in question have been complied with
and, in case the Trustee is requested to release any franchise, that such release will not
impair to any material extent the right of the Company to operate any of its remaining
properties.
Section 13.05 Unless the Company is in default in the payment of the interest on any
bonds then Outstanding hereunder or one or more Defaults shall have occurred and be
continuing, the Trustee shall whenever from time to time requested by the Company (such
request to be evidenced by an Offrcers' Certificate) and without requiring compliance with
any of the provisions of Section 13.03 hereof, release from the Lien hereof all the right, title
and interest ofthe Trustee in and to any real estate unimproved for use in the conduct ofthe
business ofthe Company, provided the Company has sold, exchanged, dedicated or disposed
ofsuch real estate, or has agreed to sell, exchange, dedicate or dispose ofsuch real estate, or,
as evidenced by such Offrcers' Certificate, has authorized its officers to endeavor to sell such
real estate, and provided the aggregate fair value ofthe interest ofthe Company in such real
estate so reieased without such compliance in any calendar year shall not exceed the greater
of Five Million DoIIars ($5,000,000) or three per centum (3%) of the bonds Outstanding
hereunder on the date of such release. Prior to the granting of any such release, there shall
be delivered to the Trustee an Engineer's
91
$$r8.06, r3.06
Certificate stating the fair value of the property to be released and that in the opinion of the
signers the release thereofwill not impair the security under this Indenture in contravention
ofthe provisions hereof and setting forth any other facts required to be known by the Trustee
as a condition precedent to any act by the Trustee under this Section. The Company
covenants that on or before March lst of each year it will deposit with the Trustee, to be
dealt with in the manner provided in Section 13.06 hereof, the net consideration, if any,
received by it upon the sale or other disposition of all such real estate so released during the
previous calendar year (to the extent that the same shall not have been paid or delivered to
the trustee or other holder of a Class "/t'' Mortgage or a Qualified Lien or another lien prior
to the Lien of this Indenture in accordance with the provisions thereof and an Offrcers'
Certifrcate to that effect shall have been furnished to the Trustee), or if no consideration be
received therefor or results therefrom the Company will so deposit the fair value thereof. Any
cash paid over to the Trustee hereunder may thereafter be withdrawn, used or applied in the
manner, to the extent and for the purposes and subject to the conditions provided in
Section 13.06 hereof. For the purposes hereof the term "unimproved for use in the conduct of
the business of the Company'' shall include not only vacant lands but parcels of real estate
(and all buildings, fixtures and other improvements thereon) that are not used or usable in
the Company's operations or are surplus to its needs.
Section 13.06 Unless the Company is in default in the payment of the interest on any
bonds then Outstanding hereunder or one or more Defaults shall have occurred and be
continuing, any Funded Cash received by the Trustee shall be held by the Trustee and such
cash and any cash which may be applied as in this Section provided,
(1) may be withdrawn from time to time by the Company to the extent of the Cost or
the fair value to the Company (whichever is less) of Property Additions not then Funded
Property (after making any deductions and additions pursuant to the provisions of
Section 1.04 hereof); provided, however, that no such withdrawal ofcash representing the
proceeds of insurance on or the release of property or securities or payment of or on
account of obligations secured by purchase money mortgages may be based in whole or in
part upon Property Additions acquired, made or constructed more than five years prior to
the last day of the calendar month immediately
(2) Deposit of considerrtion
(unimproved for use in the conduct
ofthe business ofthe Company"
Withdrawal, use or application of
money r€c€iv€d by Trustee for
reletses
(1) Withdrrwrl on brsis of Property
Additions
(2) Withdrawrl on bssis of right to
issu€ bonds
(3) Applied to purchase bonds
(4) Applied to retirc or red€em
bonds
Conditions upon which moncys will
be prid out
92
s13.0,6
preceding the receipt by the Trustee of such cash, and provided further, that Property
Additions acquired, made or constructed within ninety (90) days prior to the date of the
receipt by the Trustee of such cash representing the proceeds of insurance on or the
release of property (including securities and other personal property, if any), or payment
of or on account of obligations secured by purchase money mortgages, or subsequent to
such receipt ofcash, may, at the option ofthe Company, not have deducted therefrom the
deductions nor added thereto the additions pursuant to Section 1.04 hereof;
(2) may be withdrawn from time to time by the Company in an amount equal to the
principal amount of each bond or fraction of a bond to the authentication and delivery of
which the Company shall be entitled under the provisions of Section 5.04 or Section 6.01
hereof, by virtue of compliance with all applicable provisions of said Section 5.04 or
Section 6.01, as the case may be (except as hereinafter in this Section otherwise
provided); provided, however, that (except as hereinafter in this Section otherwise
provided) the application for such withdrawal of cash shall operate as a waiver by the
bo11tp"rry of such right to the authentication and delivery of each such bond or fraction
thereof, on the basis of which right such cash is withdrawn, and any bonds or Qualified
Lien Bonds which have been made the basis of any such right to the authentication and
delivery of bond(s) or fraction of a bond so waived shall be deemed to have been made the
basis of the withdrawal of such cash;
(B) may, upon the request ofthe Company, be used by the Trustee for the purchase of
bonds issued hereunder in accordance with the provisions ofSection 12.05; or
(4) may, upon the request of the Company, be applied by the Trustee to the payment
at maturiiy oi ,rry bonds issued hereunder or to the redemption of any bonds issued
hereunder which are, by their terms, redeemable, of such series as may be designated by
the Company, such redemption to be in the manner and as provided in Article XII hereof-
Such moneys shall, from time to time, be paid out or used or applied by the Trustee, as
aforesaid, upon the request of the Company evidenced by a Resolution, and upon receipt by
the Trustee of an Officers' Certificate stating that the Company is not in default in the
payment ofthe interest on any bonds then Outstanding hereunder and that no Default has
93
sr3.06
occurred and is continuing. In case the withdrawal of cash is, in whole or in part, based upon
Property Additions (as permitted under the provisions of clause (1) of this Section), the
Company shall, subject to the provisions of said clause (1), comply with all applicable
provisions of this Indenture (including but not limited to the furnishing of the Engineer's
Certificate provided for in subdivision (3) of Section 5.06 hereof and, in case the provisions of
subdivision (4) of Section 5.06 hereof are applicable, the Independent Engineer's Certificate
provided for in said subdivision (4) of Section 5.06 hereof) as if such Property Additions were
made the basis of an application for the authentication and delivery of bonds thereon
equivalent in principal amount to seventy per centum (70%) of. the cash to be withdrawn on
such basis; or in case the withdrawal of cash is, in whole or in part, based upon the right to
the authentication and delivery of bonds (as permitted under the provisions of clause (2) of
this Section) the Company shall comply with all applicable provisions of Section 5.04 or 6.01
hereo( as the case may be, relating to such authentication and delivery; except that in no
such case shall the Company be required to comply with any earnings requirement or to
deliver to the Trustee any Resolution, Offrcers' Certificate, Net Earning Certificate or
Opinion of Counsel such as is described in subdivisions (l), (2), (6) and (8) of Section 5.06
hereof.
Notwithstanding any of the other provisions of this Indenture,
(a) to the extent that any cash to be withdrawn under the provisions ofthis Section or
of a Qualified Lien represents the proceeds of property that was not Funded Property
released, taken by eminent domain or damaged or destroyed by fire or represents
payment on account ofprincipal of, or consideration for the release of, obligations secured
by purchase money mortgage which shall have been deposited with the Trustee or with
the trustee or other holder of a Qualified Lien as the basis ofthe release ofproperty that
was not Funded Property, and the application for the withdrawal of such cash is based
upon Property Additions (which shall never previously have been used as the basis of the
withdrawal of cash under subdivision (1) of this Section or under a Qualified Lien or as
the basis of the release of property under the provisions of clause &) of subdivision (3) of
Section 13.03 hereo( as evidenced by a statement to such effect in an Engineer's
Certificate), then such Property Additions shall not have the status ofFunded Property,
Whcn Property
Additions mide bffis
ofrithdrawel do not becom€
Funded Property
When cssh withdrswn docs not
reprcsent trund€d Property
94
$13.06
except to the extent of any amount which shall, at the time such Property Additions were
made the basis of such withdrawal of cash, have been deducted from the Cost or fair
value of such Property Additions pursuant to the provisions of clause (A) of Section 1.04
hereof less any amount which shall then have been added thereto pursuant to the
provisions of clause (B) of said Section 1.04, and except to the extent of any amount which
shall then have been deducted in respect of Qualified Liens on such Property Additions
pursuant to Section 5.04 hereof, and
@) to the extent that any cash withdrawn, used or applied under the provisions of this
Section or of a Qualified Lien shall have represented the proceeds of property that was not
Funded Property released, taken by eminent domain or damaged or destroyed by fire or shall
have represented payment on account of principal of, or consideration for the release of,
obligations secured by purchase money mortgage which shall have been deposited with the
Trustee or the trustee or other holder of a Qualified Lien as the basis of the release of
property that was not Funded Property,
(i) such cash shall no longer be deemed to be, or to have been at the time of such
withdrawal, use or application, Funded Cash;
(ii) any Property Additions made the basis of such withdrawal of cash shall not be
deemed to be Funded Property except to the extent of any amount which shall, at the time
such Property Additions were made the basis of such withdrawal of cash, have been deducted
from the Cost or fair value of such Property Additions pursuant to the provisions of clause
(A) of Section 1.04 hereof less any amount which shall then have been added thereto
pursuant to the provisions of clause (B) of said Section I".04, except to the extent of any
amount which shall then have been deducted in respect of Qualified Liens on such Property
Additions pursuant to Section 5.04 hereof; and
(iii) any waiver of the right to the authentication and delivery of bonds, made the basis of
such withdrawal of cash, shall be revoked and cease to be effective and shall no longer be
deemed to have been made, if the Company shall, within two years after the withdrawal, use
or application of such cash, file with the Trustee such Officers' Certificates, Engineer's
Certificates, Independent Engineer's Certificates, Opinions of Counsel and other papers
(other than any
95
$r8.06
Resolution, Net Earning Certificate or Opinion of Counsel such as is described in
subdivisions (1), (6) and (8) of Section 5.06 hereof) as, under the provisions of Article V
hereof, would entitle the Company, on the basis of Property Additions acquired, made or
constructed subsequent to the receipt by the Trustee or the trustee or other holder of a
Qualified Lien ofsuch cash, to the authentication and delivery ofbonds equal in principal
amount to seventy per centum (70%) of such cash so withdrawn, used or applied, and the
inclusion of such subsequently acquired Property Additions in any such OfEcers'
Certificate, Engineer's Certificate,Independent Engineer's Certificate, Opinion of
Counsel or other papers shall not make such subsequently acquired Property Additions
Funded Property.
Any obligation secured by purchase money mortgage received or to be received by the
Trustee under any of the provisions of this Indenture in consideration of the release of any
property may be released at any time upon payment by the Company to the Trustee of all or
the unpaid portion of the principal of such obligation; provided, however, at any time after
the Trustee shall have received on account of the principal of any obligations secured by
purchase money mortgage on a specified property (from the Company, the obligor or
otherwise), an amount in cash equal to the aggregate principal amount of such obligations to
the extent made the basis of a credit in the application for the release from the Lien hereof of
such property, the Trustee shall deliver to the Company on the written request of an
Authorized Executive Oflicer of the Company, and the Secretary or an Assistant Secretary or
an Authorized Financial Officer of the Company, the purchase money mortgage on such
property and all obligations secured thereby then held by the Trustee including, but not
limited to, any such obligations delivered to the Trustee as required by subdivision (3) of
Section 13.03 hereofbut not used as a credit thereunder.
The principal of and interest on any such obligations secured by purchase money
mortgage held by the Trustee shall be collected by the Trustee as and when the same become
payable. Unless the Company is in default in the payment of the interest on any of the bonds
then Outstanding hereunder or one or more Defaults shall have occurred and be continuing,
the interest received by the Trustee on any such obligations shall be paid over to the
Company, and any payments received by the Trustee on account ofthe principal ofany such
obligations in excess of the amount of credit used by the Company in respect of such
Rclease of purchase money mortgag€
obligationr
Trustee shall collect purchase
money mortgage obligations
Cencellation or retention by Trustee
of c€rtdn bondg
Release ofproperty taken y
eminent domain or purchased
by governmental body
Opinion ofCounsel
Officer's Certifrcate
Applicetion of proceeds
96
$$13.06, r3.07
obligations upon the release of any property from the Lien hereof shall also be paid over to
the Company.
The Trustee shall have and may exercise all the rights and powers of an owner of such
obligations and of all substitutions therefor and, without limiting the generality of the
foregoing, may collect and receive all insurance moneys payable to it under any of the
provlsions thereof and apply the same in accordance with the provisions thereof, may
consent to extensions thereof at a higher or lower rate of interest, may join in any plan or
plans of voluntary or involuntary reorganization or readjustment or rearrangement and may
accept and hold hereunder new obligations, stocks or other securities issued in exchange
therefor und.er any such plan. Any discretionary action which the Trustee may be entitled to
take in connection with any such obligations or substitutions therefor shall be taken, so long
as no Default shall exist, in accordance with the request of the Company, evidenced by a
Resolution, and during the existence of a Default in its own discretion.
Any bonds issued und.er this Indenture received by the Trustee pursuant to the
provisions of this Section shall forthwith be cancelled by the Trustee and any Qualified Lien-Bonds deposited with the Trustee, pursuant to the provisions of this Section shall be held by
the Trustee subject to the provisions ofArticle X hereof.
Section 13.0? Should any of the Mortgaged and Pledged Property (or any interest
therein) be taken by exercise of the power of eminent domain or be sold to an entity
possessing the power of eminent domain under a threat to exercise the same, and should the
Co*puny not elect to obtain the release of such property or interest pursuant to other
provisions of this Article XIII, the Trustee shall, upon request of the Company evidenced by
an Officers' Certificate, release from the Lien hereof all its right, title and interest in and to
the property so taken or sold, or subordinate the Lien hereofto the interest so taken or sold,
upon being furnished with an Opinion of Counsel to the effect that such property or interest
has been taken by exercise of the power of eminent domain or has been sold under threat of
an exercise of such power. Such Opinion of Counset shall be accompanied by an Officers'
Certificate stating the amount of net proceeds received or to be received for such property or
interest so taken or sold and the amount so stated shall be deemed to be the fair value of
such property or interest for the purpose of subdivision (b) of Section 19.13 hereof. On or
before March lst of each
97
s$13.07, 18.0E
year, an amount equal to the net proceeds ofall property so taken or sold during the previous
calendar year (which proceeds shall, in either event, be required to be entirely in the form of
cash) shall be paid over to the Trustee (unless the same shall have been paid or delivered to
the trustee or other holder of a Class "1t'' Mortgage or a Qualified Lien or lien prior hereto, in
accordance with the provisions thereof and a certificate of such trustee or other holder to
that effect shall have been furnished to the Trustee), and (if paid over to the Trustee
hereunder) may thereafter be withdrawn, used or applied in the manner, to the extent and
for the purposes and subject to the conditions provided in Section 13.06 hereof.
Section 13.08 In case the Mortgaged and Pledged Property shall be in the possession of
a receiver or trustee, lawfully appointed, the powers hereinbefore conferred upon the
Company with respect to the sale or other disposition of the Mortgaged and Pledged Property
or the withdrawal of cash may be exercised, with the approval of the Trustee, by such
receiver or trustee, notwithstanding the Company may be in default and any request,
certificate, appointment or approval made or signed by such receiver or trustee for such
purposes shall be as effective as if made by the Company or its Board of Directors or any of
its ofEcers or appointees in the manner herein provided; and if the Trustee shall be in
possession of the Mortgaged and Pledged Property under any provision of this Indenture,
then such powers may be exercised by the Trustee in its discretion notwithstanding that the
Company may be in default.
Notwithstanding the existence of a default in the payment of interest on any bonds
Outstanding hereunder or the existence of a Default, the Trustee, in its discretion, may
release from the Lien hereof any part of the Mortgaged and Pledged Property or permit the
withdrawal of cash, upon compliance with the other conditions specified in this Article in
respect thereof.
No purchaser in good faith of property purporting to have been released hereunder shall
be bound to ascertain the authority of the Trustee to execute the release, or to inquire as to
any facts required by the provisions hereof for the exercise of this authority; nor shall any
purchaser or grantee of any property or rights permitted by this Article to be sold, granted,
exchanged, dedicated or otherwise disposed of, be under obligation to ascertain or inquire
into the authority of the Company to make any such sale, grant, exchange, dedication or
other disposition.
If property is hrnds of receiver or
trustce
Release of property or withdrawel of
cruh in the discr€tion ofTruste
Purcheser in good frith not put on
inquiry
98
s$18.09, 13.10
Chss "A'Mortgrgc Section 13.09 In lieu of the other provisions for the release of Mortgaged and Pledged
Property provided in this Indenture, unless the Company is in default in the payment of the
interest on any bonds then Outstanding hereunder or one or more Defaults shall have
occurred and be continuing, the Company may in the alternative obtain the release of any of
the Mortgaged and Pledged Property which is subject to the lien of a Class "lt'' Mortgage
(except cash, Qualified Lien Bonds, Class "/t'' Bonds or obligations secured by purchase
money mortgage) by delivery to the Trustee of the Officers' Certificate provided for in
subdivision (1) of Section 13.03 hereof, the Engineer's Certificate provided for in
subparagraphs (a), @), (d) and (f) of subdivision (2) of Section 13.03 hereof, the Opinion of
Counsel provided for in subdivision (7) ofSection 13.03 hereofand a copy ofa release ofsuch
Mortgaged and Pledged Property from the lien of a Class "lt'' Mortgage executed by the
trustee of such Class "/t'' Mortgage.
Quitclaim of prop€rty not iubject to Section 13.10 In case the Company has sold, exchanged, dedicated or disposed of, or
intends or has agreed to sell, exchange, dedicate or dispose ol or a governmental body or
agency has lawfully ordered the Company to divest itself of, any property of a character
excepted from the Lien hereof, or the Company desires to disclaim or quitclaim title to
property to which the Company does not purport to have title, the Trustee shall, from time to
time, execute such instruments of disclaimer or quitclaim as may be appropriate upon
receipt by the Trustee of the following:
Lien
(l) an Officers' Certificate complying with the requirements of Section 22.05 hereof
and describing in reasonable detail the property to be disclaimed or quitclaimed; and
(2) an Opinion of Counsel complying with the requirements of Section 22.05 hereof
and stating the signer's opinion that such property is not subject to the Lien hereof or
required to be subject thereto by any of the provisions hereof; and stating that the
execution of such disclaimer or quitclaim is appropriate.
99
Arr XIV, $14.01; Art. XV, $15.01
ARTICLE Xry
Discharge of Class "A" Mortgage
Section 14.01 At the option of the Company as evidenced by a written request signed
by an Authorized Executive Ofhcer of the Company, and by the Secretary or an Assistant
Secretary or an Authorized Financial Officer of the Company, and accompanied (a) by an
Opinion of Counsel to the effect that upon satisfaction of the Class "1t'' Mortgage the Lien of
this Indenture will constitute a lien on substantially all of the property formerly subject to
the lien of such Class "ll' Mortgage (except such property as is excepted from the Lien
hereof) subject to no lien prior or equal to the Lien of this Indenture except Qualified Liens
and Excepted Encumbrances and @) by an Officers' Certificate to the effect that no Class "A"
Bonds are Outstanding under such Class "lt''Mortgage other than the Class "lt'' Bonds held
hereunder and that promptly upon such surrender the Class "A" Mortgage will be satisfied
pursuant to the terms thereof, the Trustee shall surrender for cancellation to the trustee
under such Class "A" Mortgage all Class "/t'' Bonds issued under said Class "/t'' Mortgage
then held by the Trustee.
Dischrrg€ of Clsss "A'Mortgrge
ARTICLE XV
Remedies of Trustee and Bondholders Upon Default
Section 15.01 The following events are hereby defined for all purposes ofthis Indenture
(except where the term is otherwise defined for specific purposes) as "Defaults":
(Defeults'
(a) Failure to pay the principal of any bond hereby secured when the same shall
become due and payable, whether at maturity, as therein expressed, or by declaration or
otherwise;
(b) Failure to pay interest upon any bond hereby secured for a period of sixty (60)
days after such interest shall have become due and payable;
(c) Failure to pay interest upon or principal (whether at maturity, as therein
expressed, or by declaration, or otherwise) of any Outstanding Qualified Lien Bonds
continued beyond the period of grace, if any, specified in the Qualified Lien securing the
same;
(d) Failure to pay any installment of any fund required to be applied to the purchase
or redemption of any of the bonds hereby
100
$r6.01
secured for a period ofsixty (60) days after the same shall have become overdue and payable;
(e) The expiration of a period of ninety (90) days following the entry of a decree or order
by a court having jurisdiction in the premises for relief in respect of the Company under the
Federal Bankruptcy Act or any other applicable Federal or State law of a similar nature, or
appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of or for the Company or for all or substantially all of its property, or ordering the
winding up or liquidation of its affairs unless during such period such decree, order or
appointment of a custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official shall be vacated or shall be stayed on appeal or otherwise or shall have
otherwise ceased to continue in effect;
(fl The commencement by the Company of a voluntary case, or the institution by it of
proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it ofa petition or answer or
consent seeking reorganization, arrangement or relief under the Federal Bankruptcy Act or
any other applicable Federal or State law ofa similar nature, or the consent or acquiescence
by it to the filing of any such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator (or other similar offrcial) ofthe
Company or for all or substantially all of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by the Company in
furtherance of any such action;
(g) The expiration of a period of ninety (90) days after the receipt by the Company of a
written demand (citing this provision) from the Trustee or (with copy to the Trustee) from
the holders of fifteen per centum (15%) in principal amount of the bonds at the time
Outstanding hereunder (determined as provided in Section 15.07 hereof) that the Company
perform a specified covenant or agreement contained herein or in any indenture
supplemental hereto or in any bond secured hereby, which specified covenant or agreement
the Company shall have failed to perform prior to the mailing of such notice, unless
101
$sr6,01, 15.02
the Company during such period shall have performed such specified covenant or
agreement or, if such covenant or agreement cannot reasonably have been performed
during such period, then the Company shall have commenced and be diligently pursuing
such performance. The Trustee may, and, if requested in writing so to do by the holders of
a majority in principal amount of the bonds then Outstanding, shall, make such demand;
(h) The existence of any "Default", as defined under the Pacific Mortgage, or the
existence of any 'Default", as defined under the Utah Mortgage, or the existence of any
default under another Class "lt'' Mortgage, which then permits the declaration of the
principal of all of the bonds secured by such Class "A" Mortgage and the interest accrued
thereupon due and payable;
provided that with respect to subdivisions (c) and (h) of this Section 15.01, if such default or
Default, as the case may be, under such Qualified Lien or Class "lt'' Mortgage shall be
remedied or cured by the Company or waived by the holders of such indebtedness, then the
Default hereunder by reason thereof shall be deemed likewise to have been thereupon
remedied, cured or waived without further action upon the part of either the Trustee or any
of the holders; and provided, further, that, subject to the provisions of Sections 19.01 and
19.02 hereof, the Trustee shall not be charged with knowledge of any such default or Default,
as the case may be, unless written notice thereof shall have been given to the Trustee by the
Company, by a holder or an agent of the holder of any such indebtedness, by a trustee then
acting under any Qualified Lien or Class "lt''Mortgage under which such default or Default,
as the case may be, shall have occurred, or by the holders of not less than twenty-five per
centum (25o/o) in aggregate principal amount of all the bonds then outstanding.
Section 15.02 The Trustee shall, within ninety (90) days after the occurrence thereof,
give to the bondholders and any trustee under a Class "A" Mortgage, in the manner and to
the extent provided in subdivision (c) of Section 19.13 hereof, notice of all defaults known to
the Trustee, unless such defaults shall have been cured before the giving of such notice (the
term "defaults" for the purposes of this Section being hereby defined to be the events
specified in subdivisions (a), (b), (c), (d), (e), (0, (g) and (h) of Section 15.01 hereof not
including any periods of grace provided for in said subdivisions) but in the case of any default
as specified
Notice to defrults
Declaration of principal and
accrued interest due upon
Default.
Holders of majority of bonds
may annul declaration
t02
s$r6.02, r5.03
in subdivision (g) of Section 15.01 hereof, no such notice shall be given until at least sixty
(60) days after the occurrence thereof; provided that, except in the case of default in the
payment ofthe principal ofor interest on any ofthe bonds hereby secured, or in the payment
of any installment of any fund required to be applied to the purchase or redemption of any of
the bonds hereby secured, the Trustee shall be protected in withholding such notice ifand so
Iong as the board of directors, 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 not detrimental to the interests ofthe bondholders.
Section 15.03 Upon the occurrence of a Default, the Trustee may, and upon the written
request of the holders of a majority in principal amount of the bonds then Outstanding
(determined as provided in Section 15.07 hereof) shall, and the holders of twenty-five per
centum (25o/o) in principal amount of the bonds at the time Outstanding hereunder may, by
notice in writing given to the Company (and to the Trustee if such notice be given by the
bondholders), unless prior to such declaration all covenants with respect to which Default
shall have occurred, shall have been fully performed or cured and all indebtedness secured
hereby (other than expenses and charges of the Trustee), except the principal of any bonds
not then due by their terms (other than by such declaration) and except interest accrued on
such bonds since the last interest payment date, shall be paid, or the amount thereofshall be
paid to the Trustee for the benefit of those entitled thereto, declare the principal of all of the
bonds hereby secured and the interest accrued thereon immediately due and payable, and
such principal and interest shall thereupon become and be immediately due and payable;
subject, however, to the right of the holders of a majority in principal amount of all
Outstanding bonds, by written notice to the Company and to the Trustee, thereafter to annul
such declaration and destroy its effect at any time before any sale hereunder, if, before any
such sale, all covenants with respect to which a Default shall have occurred shall be fully
performed or cured, and all other indebtedness secured hereby except the principal of any
bonds not then due by their terms (other than by such declaration) and except interest
accrued on such bonds since the last interest payment date, shall be paid, or the amount
thereofshall be paid to the Trustee for the benefit ofthose entitled thereto.
103
$$16.04, 15.06
Section 15.04 Upon the occurrence of one or more Defaults, the Company upon demand
of the Trustee, shall (if at the time such action shall be lawful) forthwith surrender to the
Trustee the actual possession of, and (if at the time such action shall be lawful) the Trustee,
by such offlrcer or agent as it may appoint, may take possession of, all the Mortgaged and
Pledged Property (with the books, papers and accounts of the Company) and hold, operate
and manage the same, and from time to time make all needful repairs and such extensions,
additions and improvements as to the Trustee shall seem wise; and receive the tolls, rents,
revenues, issues, earnings, income, products and profits thereof, and out ofthe same pay all
proper costs and expenses of so taking, holding, managing and operating the same, including
reasonable compensation to and expenses of the Trustee, its agents and counsel, and any
charges ofthe Trustee hereunder, and any taxes and assessments and other charges prior to
the Lien of this Indenture which the Trustee may deem it wise to pay, and all expenses of
such repairs, extensions, additions and improvements, and apply the remainder of the
moneys so received by the Trustee, subject to the provisions of Section 15.12 hereof with
respect to extended, transferred or pledged coupons or claims for interest, first to the
payment of the installments of interest which are due and unpaid, in order of their maturity,
and next, if the principal of any of said bonds is due, to the payment of the principal and
accrued interest thereon pro rata without any preference or priority whatever, except as
aforesaid. Whenever all that is due upon such bonds and installments of interest and under
any of the terms of this Indenture shall have been paid and all Defaults cured, the Trustee
shall surrender possession to the Company, its successors or assigns; the same right of entry,
however, to exist upon any subsequent Default.
Section 15.05 Upon the occurrence of one or more Defaults, the Trustee, by such offrcer
or agent as it may appoint, with or without entry, may, if at the time such action shall be
Iawful, sell all the Mortgaged and Pledged Property as an entirety, or in such parcels as the
holders of a majority in principal amount of the bonds Outstanding hereunder (determined
as provided in Section 15.07 hereof) shall in writing request, or in the absence of such
request, as the Trustee may determine, at public auction, at some convenient place in the
City of Portland, Oregon, or such other place or places as may be required by law, having
first given notice of such sale by publication in at least one Daily Newspaper of general
circulation in the City of Portland, Oregon (if there be such a Daily
Trustee may take possession
of and operate property.
Application of income
When Trustee shall surrender
possession to Company
Power to sell all Mortgaged
and Pledged Property
Notice by publications
Judicial proceedings
Bemedies cumulative
Delay, etc, no waiver of rights
Waiver of Default not to
extend to subsequent Default.
Bondholders may direct
proceedings
to4
s$r6.06, r6.06, r5.07
Newspaper), once preceding such sale, to be made not less than twenty (20) days prior to the
date of such sale, and by like publication in at least one Daily Newspaper of general
circulation in the Borough of Manhattan, the City of New York, New York, and any other
notice which may be required by law, and from time to time may (to the extent permitted by
Iaw) adjourn such sale in their discretion by announcement at the time and place fixed for
such sale without further notice, and upon such sale may make and deliver to the purchaser
or purchasers a good and suffrcient instrument or instruments ofconveyance, assignment or
transfer for the same, which sale shall, to the extent then permitted by law, be a perpetual
bar, both at law and in equity, against the Company and all persons, firms and corporations
Iawfully claiming or who may claim by, through or under it.
Section 15.06 In case of the breach of any of the covenants or conditions of this
Indenture, the Trustee shall have the right and power to take appropriate judicial
proceedings for the enforcement ofits rights and the rights ofthe bondholders hereunder. In
case of a Default, the Trustee may either after ently, or without ently, proceed by suit or
suits at law or in equity to enforce payment of the bonds then Outstanding hereunder and to
foreclose this Indenture and to sell the Mortgaged and Pledged Property under the judgment
or decree ofa court or courts ofcompetent jurisdiction.
No remedy by the terms of this Indenture conferred upon or reserved to the Trustee (or to
the bondholders), is intended to be exclusive of any other remedy, but each and every such
remedy shall be cumulative and shall be in addition to any other remedy given hereunder or
now or hereafter existing at law or in equity or by statute.
No delay or omission to exercise any right or power accruing upon any Default shall
impair any such right or power or shall be construed to be a waiver of any such Default or
acquiescence therein; and every such right and power may be exercised foom time to time
and as often as may be deemed expedient.
No waiver of any Defau1t, whether by the Trustee or by the bondholders, shall extend to
or shall affect any subsequent Default or shall impair any rights or remedies consequent
thereon.
Section 15.07 The holders of not less than a majority in principal amount of the bonds
at the time Outstanding hereunder may direct the
105
$$16.07, 15.08
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, provided, however,
that such direction shall not be otherwise than in accordance with the provisions oflaw and
this Indenture and that, subject to the provisions of Section 19.01 and 19.02 hereof, the
Trustee shall have the right to decline to follow any such direction if the Trustee in good
faith shall by Responsible Officers determine that the action or proceeding so directed would
involve the Trustee in personal liability or be unjustifrably prejudicial to nonassenting
bondholders or that it will not be sufficiently indemnified for any expenditures in any action
or proceeding so directed.
For the purposes of this Sectionand of Sections 9.06, 15.01, 15.03, 15.05, L9.02, 19.14,
19.15, 21.02, 21.06, 21.10 and 22.06 hereof, and for the purpose of waiving, in accordance
with any of the provisions of Section 21.07 hercof" any past Default of the Company and the
consequences thereof, in determining whether the holders of the required percentage of the
principal amount of bonds have concurred or participated in any direction or consent,
(a) bonds for the purchase of which money in the necessaly amount shall have been
deposited with or shall then be held by the Trustee with irrevocable direction to apply the
same to the purchase thereof shall be deemed Outstanding and (b) bonds owned by the
Company, or by any person directly or indirectly controlling or controlled by or under direct
or indirect common control with the Company (unless all bonds at the time Outstanding
hereunder are then so owned), shall be disregarded, except that for the purpose of
determining whether the Trustee shall be protected in relying on any such direction or
consent, only bonds which the Trustee knows are so owned shall be so disregarded. Bonds so
owned which have been pledged in good faith may be regarded as Outstanding for the
purposes of this paragraph, if the pledgee shall establish to the satisfaction of the Trustee
the pledgee's right to vote such bonds 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. In case of a dispute as to such right, any decision by the Trustee taken upon the
advice ofcounsel shall be full protection to the Trustee.
Section 15.08 In case of a Default, and upon the filing of a bill in equity or other
commencement of judicial proceedings to enforce the rights of the Trustee and of the
bondholders under this Indenture, the Trustee shall be entitled, as a matter of right (to the
extent that such
Situations when bonds owned
by Company and certain other
bonds to be disregarded
Appointment of receiver
All bonds to become due and
payable upon sale of property
Purchase by bondholder at
sale ofproperty
Bonds as part of purchase
price
Receipt of Trustee or sale
officer as discharge to
purchaser
106
$$r5.0E, 15.09, 15.10, l5.ll
right is enforceable under applicable law), to the appointment ofa receiver or receivers ofthe
Mortgaged and Pledged Property, and of the tolls, rents, revenues, issues, earnings, income,
products and profits thereof, pending such proceedings, with such powers as the court
making such appointment shall confer, whether or not the Mortgaged and Pledged Property
shall be adequate to satisfu the bonds then outstanding.
Section 15.09 Upon any sale being made either under the power of sale hereby given or
under judgment or decree in any judicial proceedings, for the foreclosure or otherwise for the
enforcement of this indenture, the principal of all bonds then secured hereby, if not
previously due, shall become and be immediately due and payable.
Section 15.10 Upon any sale made either under the power ofsale hereby given or under
judgment or decree in any judicial proceedings for foreclosure or otherwise for the
enforcement ofthis Indenture, any bondholder or bondholders may bid for and purchase the
Mortgaged and Pledged Property or any part thereof and upon compliance with the terms of
sale may hold, retain and possess and dispose of such property in his, her, their or its own
absolute right without further accountability, and any purchasers at any such sale may, in
paying the purchase money, turn in any ofthe bonds Outstanding hereunder and coupons or
claims for interest outstanding hereunder in lieu of cash to the amount which shall, upon
distribution of the net proceeds of such sale, be payable thereon, subject, however, to the
provisions of Section 15.12 hereofwith respect to extended, transferred or pledged coupons or
claims for interest. Said bonds and coupons, in case the amounts so payable thereon shall be
Iess than the amount due thereon, shall be returned to the holders thereof after being
appropriately stamped to show partial payment.
Section 15.11 Upon any sale made either under the power of sale hereby given or under
judgment or decree in any judicial proceedings for the foreclosure or otherwise for the
enforcement of this Indenture, the receipt of the Trustee or of the officer making such sale
shall be a suffrcient discharge to the purchaser or purchasers at any sale for his, her, its or
their purchase money and such purchaser or purchasers, his, her, its or their assigns or
personal representatives, shall not, after paying such purchase money and receiving such
receipt of the Trustee or of such officer therefor, be obliged to see to the application of such
purchase
107
$$r6.r1, r6.rz
money, or be in anywise answerable for any loss, misapplication or non-application thereof.
Any sale made either under the power of sale hereby given or under judgment or decree
in any judicial proceedings for the foreclosure or otherwise for the enforcement of this
Indenture shall, if and to the extent then permitted by law, operate to divest all right, title,
interest, claim and demand whatsoever, either at law or in equity, of the Company of, in and
to the property so sold, and be a perpetual bar both at law and in equity against the
Company, its successors and assigns and against any and all persons, firms or corporations
claiming or who may claim the property sold; or any part thereof, from, through or under the
Company, its successors or assigns.
Section 15.12 The proceeds of any sale made either under the power of sale hereby
given, or under judgment or decree in any judicial proceedings for the foreclosure or
otherwise for the enforcement of this Indenture, together with any other amounts of cash
which may then be held by the Trustee, as part of the Mortgaged and Pledged Property, shall
be applied, as follows:
First.-To the payment of all taxes, assessments, governmental charges, Qualified
Liens and liens prior to the Lien ofthis Indenture, except those subject to which such sale
shall have been made, and ofall the costs and expenses ofsuch sale, including reasonable
compensation to and expenses ofthe Trustee, its agents and its attorneys, and ofall other
sums payable to the Trustee hereunder (and any predecessor Trustee) by reason of any
expenses or liability incurred (in good faith and without negligence by the Trustee) or
advances made in connection with the management or administration of the trusts
hereby created in accordance with Section 19.09 hereof;
Effect of sale on rights of
Company
Disposition of proceeds of sale
Order of application:
(l) Taxes, etc., compensation
of Trustee
Second.---To the payment in full of the amounts then due and unpaid for principal, (2) Principal and interest
premium and interest upon the bonds then secured hereby; and in case such proceeds
shall be insufficient to pay in full the amounts so due and unpaid, then to the payment
thereof ratably, without preference or priority as to principal, premium or interest, or of
any installment of interest over any other installment of interest; provided, however, that
if the time for the payment of any coupon or claim for interest upon any of the bonds
secured hereby shall have been extended (except pursuant to action taken
(3) Surplus to Company
Waiver of advantage of any
appraisement, valuation, 6tay,
extension or redemption laws
and rights to marshal assets
108
$$r5.12, r5.18
under Article XXI hereofl by or with the consent of the Company, or if any thereof at or
after maturity shall have been transferred or pledged separate from the bond to which
they relate, such coupons or claims for interest shall not be entitled in case of Default
hereunder to the benefit or security of this Indenture except after the prior payment in
fulI of the principal and premium, if any, of all bonds issued hereunder and then secured
hereby and of all coupons and claims for interest on such bonds the payment of which has
not been so extended, or not so transferred or pledged; but the foregoing provisions ofthis
paragraph Second shall not be applicable to any coupon or claim for interest the time for
the payment of which shall have been extended, if such extension be pursuant to a plan
proposed by the Company to all holders of any one or more series of bonds then
Outstanding and accepted by and binding upon the holder of such coupon or claim for
interest; and
Third.-Any surplus thereof remaining to the Company, its successors or assigns or
to, him, her, them or it whosoever may be lawfully entitled to receive the same.
Section 15.13 In case of a Default, to the extent that such rights may then lawfully be
waived, neither the Company nor anyone claiming through or under it shall or will set up,
claim, or seek to take advantage of any appraisement, valuation, stay, extension or
redemption laws now or hereafter in force in any locality where any of the Mortgaged and
Pledged Property may be situated, in order to prevent or hinder the enforcement or
foreclosure ofthis Indenture, or the absolute sale ofthe Mortgaged and Pledged Property, or
the final and absolute putting into possession thereof, immediately after such sale, of the
purchaser or purchasers thereat, but the Company, for itself and all who may claim through
or under it, hereby waives, to the extent that it lawfuIly may so do, the benefrt of all such
Iaws and all right of appraisement and redemption to which it may be entitled under the
laws of any State where any of the Mortgaged and Pledged Property may be situated. The
Company, for itself and all who may claim through or under it, waives, to the extent that it
lawfully may do so, any and all right to have the estates comprised in the security intended
to be created hereby marshalled upon any foreclosure ofthe Lien hereof, and agrees that any
court having jurisdiction to foreclose such Lien may sell the Mortgaged and Pledged Property
as an entirety.
109
$r5.14
Section 15.14 The Company covenants that if default shall be made in the payment of
the principal of any bond hereby secured when the same shall become payable, whether by
the maturity of said bond or otherwise or in the case of a default in the payment of the
interest on any bond for a period of sixty (60) days after such interest 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 bonds and coupons then secured hereby, the whole amount due
and payable on all such bonds and coupons for principal, premium, if any, and interest, with
interest, upon the overdue principal at the same rate borne by the bonds which are overdue.
In the case of a default in payment of the principal of any bond, when the same shall
become due and payable, or in the case of a default in the payment of the interest on any
bond for a period of sixty (60) days after such interest shall have become due and payable,
the Trustee may recover judgment, in its own name and as trustee of an express trust,
against the Company for the whole amount of such principal, interest and any premium
remaining unpaid together with interest upon the overdue principal at the same rate borne
by the bonds which are overdue.
The Trustee may fiIe such proofs of claim and other papers or documents as may be
necessaly or advisable in order to have the claims of the Trustee and of the bondholders
allowed in any judicial proceedings relative to the Company or its creditors, or its property.
In case of any receivership, insolvency, bankruptcy, reorganization or other similar
proceedings affecting the Company or its property, the Trustee, irrespective of whether the
principal ofthe bonds shall then be due and payable and irrespective ofwhether the Trustee
shall have made any demand for such payment, shall be entitled and empowered either in its
own name or as trustee of an express trust or as attorney-in-fact for the holders of the bonds
and coupons, or in any one or more of such capacities, to fiIe a proof of claim for the whole
amount of principal and interest (with interest upon such overdue principal at the same rate
borne by the bonds which are overdue) which may be or become owing and unpaid in respect
of the bonds and for any additional amount which may be or become payable by the
Company hereunder, without regard to or deduction for any amount which may have been or
which may thereafter be received, collected or realized by the Trustee from or out of the
Mortgaged and Pledged Property or any part thereofor from or out ofthe proceeds thereofor
any part thereof; but nothing in this Indenture contained shall
Payment of principal and
interest by Company
Trustee may recover
judgment
Proofs of claim
Judgment may be taken by
Trustee
Lien of Indenture not to be
affected by judgement or levy
ofexecution thereon
Application ofmoneys
collected by Trustee
Possession ofbonds
unnecessary in action by
Trustee
110
$$r5.r4, r5.r6
authorize the Trustee to accept or consent to any composition or plan of reorganization on
behalf of any bondholder.
The Trustee, to the extent permitted by law, shall be entitled to sue and recover
judgment and/or to fiIe and prove such claim as aforesaid either before or after or during the
pendency of any proceedings for the enforcement of the Lien of this Indenture upon the
Mortgaged and Pledged Property, and in case of a sale of any of the Mortgaged and Pledged
Property and of the application of the proceeds of sale to the payment of the debt hereby
secured, the Trustee in its own name and as trustee of an express trust, shall be entitled to
enforce payment of and to receive all amounts then remaining due and unpaid upon any and
all the bonds and coupons then Outstanding hereunder, for the benefit ofthe holders thereo{
and the Trustee shall be entitled to recover judgment for any portion of the debt remaining
unpaid, with interest. No recovery of any such judgment by the Trustee and no levy of any
execution upon any such judgment upon any ofthe Mortgaged and Pledged Property or upon
any other property shall in any manner or to any extent affect the Lien of this Indenture
upon the Mortgaged and Pledged Property or any part thereo{ or any rights, powers or
remedies of the Trustee hereunder, or any lien, rights, powers or remedies of the holders of
said bonds, but such lien, rights, powers and remedies ofthe Trustee and ofthe bondholders
shall continue unimpaired as before.
Any moneys thus collected or received by the Trustee under this Section shall be applied
by it first, to the payment of its expenses, disbursements and compensation and the
expenses, disbursements and compensation of its agents and attorneys, and, second, toward
payment of the amounts then due and unpaid upon such bonds and coupons in respect of
which such moneys shall have been collected, ratably and without preference or priority of
any kind (subject to the provisions of Section 15.12 hereof with respect to extended,
transferred or pledged coupons and claims for interest), according to the amounts due and
payable upon such bonds and coupons, respectively, at the date fixed by the Trustee for the
distribution of such moneys, with interest upon overdue principal at the same rate borne by
the bonds which are overdue, upon presentation ofthe several bonds and coupons and upon
stamping such payment thereon, if partly paid, and upon surrender thereof, if fuIly paid.
Section 15.15 All rights of action (including the right to file proofs of claim) under this
Indenture or under any ofthe bonds or coupons may
111
$$16.16, r5.16
be enforced by the Trustee without the possession of any of the bonds or coupons or the
production thereof in any trial or other proceeding relating thereto and any such suit or
proceeding instituted by the Trustee shall be brought in its name as Trustee, and any
recovery of judgment shall be for the equal benefit of the holders of the Outstanding
bonds and coupons, subject to the provisions of Section 15.12 hereof with respect to
extended, transferred or pledged coupons and claims for interest.
In any proceeding brought by the Trustee (including also any proceeding involving the
interpretation ofany provision ofthis Indenture to which the Trustee shall be a party), such
Trustee shall be held to represent all the holders of the bonds and coupons secured by this
Indenture and it shall not be necessary to make such holders of the bonds and coupons
parties to any such proceedings.
Section 15.16 No holder of any bond or coupon shall have any right to institute any
suit, action or proceeding in equity or at law for the foreclosure of this Indenture or for the
execution of any trust hereof or for the appointment of a receiver or any other remedy
hereunder unless such holder shall have previously given to the Trustee written notice of a
Default, nor unless also the holders of twenty-five per centum (25%) in principal amount of
the bonds then Outstanding hereunder shall have made written request to the Trustee and
shall have offered it reasonable opportunity either to proceed to exercise the powers
hereinbefore granted or to institute such suit, action or proceeding in its own name and shall
have offered to the Trustee security and indemnity satisfactory to the Trustee against the
costs, expenses and liabilities to be incurred thereby without negligence or bad faith, and the
Trustee shall have declined to take euch action or shall have failed so to do within sixty (60)
days thereafter; it being understood and intended that no one or more holders ofthe bonds or
coupons shall have any right in any manner whatsoever to affect, disturb or prejudice the
Lien ofthis Indenture by his, her, its or their action to enforce any right hereunder except in
the manner herein provided, and that all proceedings at law or in equity shall be instituted,
had and maintained in the manner herein provided and for the equal benefit of all holders of
Outstanding bonds and coupons. Such notification, request and offer ofindemnity are hereby
declared, at the option of the Trustee, but subject to the provisions of Sections 19.01 and
19.02 hereof, to be conditions precedent to the execution by it ofthe powers and trusts ofthis
Indenture and to the exercise by it ofany action or cause ofaction or remedy hereunder.
Bondholders not necessary
parties to action
Right of bondholders to
institute legal proceedinEs
Right of bondholders to
enforce pa;rment not to be
impaired
Waiver of periods of grace
If proeeedings abandoned,
Trustee and Company
restored to fomer position
and rights
Execution of instruments by
bondholders
Proof of execution
(a) Notary's certificate
(b) Certificate oftrust
company, bank, etc.
tt2
$$r5.16, 15.r7; Art. XVI, $16.01
Notwithstanding any other provision of this Indenture, the right of any holder of any
bond to receive payment of the principal of and interest on such bond, on or after the
respective due dates expressed in such bond, or to institute suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or affected without the
consent of such holder.
Section 15.17 The Company may waive any period of grace provided for in this Article.
In case the Trustee shall have proceeded to enforee any right under this Indenture by
foreclosure, ently or otherwise, and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the Trustee, then and
in every such case the Company and the Trustee shall be restored to their former positions
and rights hereunder with respect to the Mortgaged and Pledged Property, and all rights,
remedies and powers ofthe Trustee shall continue as if no such proceedings had been taken.
ARTICLE XVI
Evidence of Rights of Bondholders and
Ownership of Bonds
Section 16.01 Any request, declaration or other instrument, which this Indenture may
require or permit to be signed and executed by the bondholders, may be in any number of
concurrent instruments ofsimilar tenor, and shall be signed or executed by such bondholders
in person or by an attorney appointed in writing. Proof of the execution of any such request
or other instrument, or of a writing appointing any such attorney, or of the holding by any
person of the bonds or coupons appertaining thereto, shall be suffrcient (subject, in so far as
the Trustee is concerned, to the provisions of Section 19.01 and Section 19.02 hereof) for any
purpose of this Indenture (except as otherwise herein expressly provided) if made in the
following manner:
(a) The fact and date of the execution by any person of such request or other
instrument or writing may be proved by a witness or by a certificate acknowledged before
a Notary Public or other officer authorized to take acknowledgments;
(b) The amount of bonds transferable by delivery held by any person executing such
request or other instrument as a bondholder,
113
0s16.0r, r6.02
and the series and serial numbers thereof, held by such person, and the date ofhis, her or
its holding the same, may be proved by a certificate executed by any trust company, bank,
banker or other depositary wherever situated, if such certificate shall be deemed by the
Trustee to be satisfactory, showing that at the date therein mentioned such person had
on deposit with such depositary the bonds described in such certificate. The Trustee may
nevertheless in its discretion require further proof in cases where it deems further proof
desirable. The ownership ofregistered bonds shall be proved by the registry books.
Any request, consent or vote of the owner of any bond shall bind all future holders and
owners of said bond or any bond issued in exchange or substitution for said bond in respect of
anything done or suffered by the Company or the Trustee in pursuance thereof.
Section 16.02 The Company and the Trustee (or any agent of the Company or the
Trustee) may deem and treat the bearer of any temporary or coupon bond Outstanding
hereunder, which shall not at the time be registered as to principal as hereinbefore
authorized, and the bearer of any coupon for interest on any such bond, whether such bond
shall be registered or not, as the absolute olvner of such bond or coupon, as the case may be,
whether or not such bond or coupon shall be overdue, for the pulpose of receiving payment
thereof or on account thereof and for all other pu{poses, and neither the Company nor the
Trustee shall be affected by any notice to the contrary.
The Company and the Trustee (and their agents) may, subject to the provisions of this
Indenture providing for the use of a record date in certain cases, deem and treat the person
in whose name any fuIly registered bond Outstanding hereunder shall be registered upon the
books of the Company, as herein authorized, as the absolute owner of such bond for the
purpose of receiving payment of or on account of the principal of and interest on such bond
and for all other purposes, and they may deem and treat the person in whose name any
coupon bond shall be so registered as to principal as the absolute owner thereof for the
purlose of receiving payment of or on account of the principal thereof and for all other
purposes, except to receive payment of interest represented by outstanding coupons; and all
such payments so made to any such registered owner, or upon his, her or its order, shall be
valid and effectual to satisfu and discharge the liability upon such bond to the
Consent or vote binding on
future bondholder
Ownership of temporary or
coupon bonds
0wnership of registered
bonds
Inspection ofbonds
No recourse clause
tL4
$r6.02; Art. XVII, $17.01
extent of the sum or sums so paid, and neither the Company nor the Trustee shall be affected
by any notice to the contrary. Neither the Company nor the Trustee (or their agents) shall be
bound to recognize any person as the holder of a bond Outstanding under this Indenture
unless and until his, her or its bond is submitted for inspection, if required, except as may
otherwise be provided by regulations made under Section 21.03 hereof, and his, her or its
title thereto satisfactorily established, if disputed.
ABTICLE XVII
Immunity of Incorporators, Subscribers to the
Capital Stock, Shareholders, Officers and Directors
Section 17.01 No recourse under or upon any obligation, covenant or agreement
contained in this Indenture (including any indenture supplemental hereto) or in any bond or
coupon hereby secured, or because of the creation of any indebtedness hereby secured, shall
be had against any incorporator or any past, present or future subscriber to the capital stock,
shareholder, ofEcer or director of the Company or of any predecessor or successor
corporation, as such, either directly or through the Company or any predecessor or successor
corporation, under any rule of law, statute or constitution or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise; it being expressly agreed
and understood that this Indenture and the obligations hereby secured are solely coraorate
obligations, and that no such personal liability shall attach to, or be incurred by, such
incorporators, subscribers to the capital stock, shareholders, officers or directors of the
Company or of any predecessor or successor corporation, or any of them, as such, because of
the incurring of the indebtedness hereby authorized, or under or by reason of any of the
obligations, covenants or agreements contained in this Indenture or in any of the bonds or
coupons hereby secured, e1 lmflied therefrom, and that any and all such personal liability of
evely name and nature, and any and all such rights and claims against every such
incorporator, subscriber to the capital stock, shareholder, offrcer or director, as such, whether
arising at common law or in equity, or created by rule of law, statute, constitution or
otherwise, are expressly released and waived as a condition of, and as part of the
consideration for, the execution of this Indenture and the issue of the bonds and interest
obligations secured hereby.
115
Art. Xr/III, $$r8.01, 18.02
ARTICLE XVIII
Effect of Merger, Consolidation, Etc.
Section 18.01 Nothing in this Indenture shall prevent any consolidation of the
Company with, or merger of the Company into, any corporation having corporate authority
to carry on any of the businesses mentioned in the first sentence of Section 1.04 hereof, or
any conveyance, transfer or lease, subject to the Lien of this Indenture, of all or substantially
all of the Mortgaged and Pledged Property as an entirety to any corporation lawfully entitled
to acquire or lease or operate the same; provided, however, and the Company covenants and
agrees, that such consolidation, merger, conveyance, transfer or lease shall be upon such
terms as fully to preserve and in no respect to impair the Lien or security of this Indenture,
or any of the rights or powers of the Trustee or the bondholders hereunder; and provided,
further, that any such lease shall be made expressly subject to immediate termination by the
Company or by the Trustee at any time during the continuance of a Default, and also by the
purchaser of the property so leased at any sale thereof hereunder, whether such sale be
made under the power of sale hereby conferred or under judicial proceedings; and provided,
further, that, upon any such consolidation, merger, conveyance or transfer, or upon any such
Iease the term of which extends beyond the date of maturity of any of the bonds secured
hereby, the due and punctual payment of the principal and interest of all said bonds
according to their tenor and the due and punctual performance and observance of all the
covenants and conditions ofthis Indenture to be kept or performed by the Company shall be
expressly assumed by an instrument in writing executed and delivered to the Trustee by the
corporation formed by such consolidation or into which such merger shall have been made, or
acquiring all or substantially all the Mortgaged and Pledged Property as an entirety, as
aforesaid, or by the lessee under any such lease the term ofwhich extends beyond the date of
maturity of any of the bonds secured hereby.
Section 18.02 In case the Company, as permitted by Section 18.01 hereof, shall be
consolidated with or merged into any other corporation or shall convey or transfer, subject to
the Lien of this Indenture, all or substantially all the Mortgaged and Pledged Property as an
entirety, the successor corporation formed by such consolidation, or into which the Company
shall have been merged, or which shall have received a
Company may merge,
consolidate, etc., upon certain
tems
No impairment of Lien
Assmption of obligation
Rights ofsuccessor
corporation
Execution of indenture
Execution of bonds, etc.' on
basis of Property Additions
116
$rE.02
conveyance or transfer as aforesaid-upon executing with the Trustee and causing to be
recorded an indenture whereby such successor colToration shall assume and agree to pay,
duly and punctually, the principal of and interest on the bonds issued hereunder in
accordance with the provisions ofsaid bonds and coupons and this Indenture, and shall agree
to perform and fuIfilI all the covenants and conditions of this Indenture to be kept or
performed by the Company-shall succeed to and be substituted for the Company with the
same effect as if it had been named herein, and shall have and may exercise under this
Indenture the same powers and rights as the Company, and (without in anywise limiting or
impairing by the enumeration of the same the scope and intent of the foregoing general
powers and rights) such successor corporation thereafter may cause to be executed,
authenticated and delivered, either in its own name or in the name of PacifiCorp, as its name
is now or shall then exist, in respect of property of the character defined in Section 1.04
hereof as Property Additions, such bonds as could or might have been executed, issued and
delivered by the Company had it acquired such property ofsuch character by purchase on or
after the date of such consolidation, merger, conveyance or transfer, and had such
consolidation, merger, conveyance or transfer not occurred, and upon the order of such
successor corporation in lieu of the Company, and subject to all the terms, conditions and
restrictions in this Indenture prescribed, concerning the authentication and delivery of
bonds, the Trustee shall authenticate and deliver any bonds delivered to it for authentication
which shall have been previously signed by the proper officers of the Company, and such
bonds as the successor co4roration shall thereafter, in accordance with the provisions ofthis
Indenture, cause to be executed and delivered to the Trustee for such purpose, and such
successor corporation shall also have and may exercise in respect of the property of such
character, and subject to all the terms, conditions and restrictions in this Indenture
prescribed applicable thereto, whether as to withdrawal of cash, release of property, or
otherwise, the same powers and rights which the Company might or could exercise had it
acquired the property of such character by purchase on or after the date of such
consolidation, merger, conveyance or transfer, and had such consolidation, merger,
conveyance or transfer not occurred. A11 the bonds so issued or delivered by the Company
shall in all respects have the same legal right and security as the bonds theretofore issued or
d.elivered in accordance with the terms of this Indenture as though all of said bonds had been
authenticated and delivered at the date ofthe
tt7
$$18.02, 1E.03
execution hereof. As a condition precedent to the execution of such successor corporation and
the authentication and delivery by the Trustee of any such additional bonds or the
withdrawal of cash or release of property, under any of the provisions of this Indenture, on
the basis of property of the character defined in this Indenture as Property Additions
acquired, made or constructed by the successor corporation or by any corporation with which
the Company or any successor corporation may be so consolidated or into which the
Company or any successor corporation may be so merged or to which the Company or any
successor corporation may make any such conveyance, the indenture with the Trustee to be
executed and caused to be recorded by the successor corporation as in this Section provided,
or a subsequent indenture, shall contain a conveyance or transfer and mortgage in terms
sufficient to subject such property to the Lien hereof; and provided further that the lien
created thereby and the lien thereon shall have similar force, effect and standing as the Lien
of this Indenture would have if the Company should not be consolidated with or merged into
such other corporation or should not convey or transfer, subject to this Indenture, all or
substantially all the Mortgaged and Pledged Property as an entirety, as aforesaid, to such
successor corporation, and should itself on or afler the date of such consolidation, merger,
conveyance or transfer, acquire or construct such property, and in respect thereof should
request the authentication and delivery ofbonds or the withdrawal ofcash or the release of
property under the provisions ofthis Indenture.
Section 18.03 In case the Company, as permitted by Section 18.01 hereof, shall be
consolidated with or merged into any other corporation, or shall convey or transfer, subject to
the Lien of this Indenture, all or substantially all the Mortgaged and Pledged Property as an
entirety as aforesaid, neither this Indenture nor the indenture with the Trustee to be
executed and caused to be recorded by the successor corporation as in Section 18.02 hereof
provided, shall, unless such indenture shall otherwise provide, become or be or be required to
become or be a lien upon any of the properties or franchises then owned or thereafter
acquired by the successor corporation @y purchase, consolidation, merger, donation,
construction, erection or in any other way) except (a) those acquired by it from the Company,
and improvements, extensions and additions thereto and renewals and replacements thereof,
&) the property made and used by the successor corporation as the basis under
Proviso
Extent oflien in case of
consolidation. etc.; Company
consolidated or merged into
other corporation
Other corporation
consolidated or merged into
Company
118
$r8.03
any of the provisions of this Indenture for one or more Authorized Purposes, and (c) such
franchises, repairs and additional property as may be acquired, made or constructed by the
successor colporation (1) to maintain, renew and preserve the franchises covered by this
Indenture, or (2) to maintain the property mortgaged and intended to be mortgaged
hereunder as an operating system or systems in good repair, working order and condition, or
(3) in rebuilding or renewal ofproperty subject to the Lien hereof damaged or destroyed, or
(4) in replacement of or substitution for machinery, apparatus, equipment, frames, towers,
poles, wire, pipe, tools, implements or furniture, or any other fixtures or personalty, subject
to the Lien hereof, which shall have become old, inadequate, obsolete, worn out, unfit,
unadapted, unserviceable, undesirable or unnecessary for use in the operation of the
property mortgaged and intended to be mortgaged hereunder.
In case any other corporation shall be merged or consolidated into the Company with the
result that the Company shall be the surviving corporation, this Indenture shall not (unless
an indenture supplemental hereto shall otherwise provide) become or be required to become
or be a Iien upon any of the properties or franchises owned by such other corporation at the
time of the merger or consolidation, or later improvements, extensions or additions thereto or
renewals or replacements thereof, except (a) property made and used by the Company as the
basis under any of the provisions of this Indenture for one or more Authorized Purposes, and
@) such franchises, repairs and additional property as may be acquired, made or constructed
by the Company (1) to maintain, renew and preserve the franchises covered by this
Indenture, or (2) to maintain the property mortgaged and intended to be mortgaged
hereunder as an operating system or systems in good repair, working order and condition, or
(3) in rebuilding or renewal of property subject to the Lien hereof damaged or destroyed, or
(4) in replacement of or substitution for machinery, apparatus, equipment, frames, towers,
poles, wire, pipe, tools, implements or furniture, or any other fixtures or personalty, subject
to the Lien hereof, which shall have become old, inadequate, obsolete, worn out, unfit,
unadapted, unserviceable, undesirable or unnecessary for use in the operation of the
property mortgaged and intended to be mortgaged hereunder.
119
Art. )(IX, S$19.0r, 19.02
ARTICLEXD(
Concerning the Trustee
Section 19.01 The Trustee shall at all times be a bank or trust company eligible under Qualificetion orrmstee
Section 9.03 hereof and have a combined capital and surplus of not less than Five Million
Dollars ($5,000,000) or the foreign currency equivalent thereof. If the Trustee publishes
reports of condition at least annually, pursuant to law or to the requirement of any
supervising or examining authority referred to in Section 9.03 hereof, then for the purposes
of this Section the combined capital and surplus of the Trustee shall be deemed to be its
combined capital and surplus as set forth in its most recent report ofcondition so published.
The Trustee hereby accepts the trust hereby created. The Trustee undertakes, prior to Acceptrnceorrrust
Default, and after the curing of all such Defaults which may have occurred, to perform such
duties and only such duties as are specifically set forth in this Indenture, and in case ofsuch
Default (which has not been cured) to exercise 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
person would exercise or use under the circumstances in the conduct of his or her own
affairs. For the purposes of this Section 19.01 and of Section 19.02 hereof a Default shall be
deemed cured when the act or omission or other event giving rise to such Default shall have
been cured, remedied, terminated or waived.
The Trustee, upon receipt of evidence furnished to it by or on behalf of the Company
pursuant to any provision of this Indenture, will examine the same to determine whether or
not such evidence conforms to the requirements of this Indenture.
Section 19.02 No provision of this Indenture shall be construed to relieve the Trustee Trustee's liabilitv generallv
from liability for its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that
(a) prior to Default, and after the curing of all such Defaults which may have
occurred, the Trustee shall not be liable except for the performance of such duties as are
specifically set forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee but the duties and obligations of the
Trustee, prior to Default, and after the curing of all such Defaults which may have
occurred, shall be determined solely by the express provisions ofthis Indenture; and
Trustee may act through
agents, etc.
120
$s1e.02
@) prior to Default, and after the curing of all such Defaults which may have
occurred, and in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions conforming to the requirements of this
Indenture; and
(c) no Trustee which is a corporation shall be personally liable for any error of
judgment made in good faith by a Responsible Officer or Responsible Officers of such
Trustee unless it shall be proved that such Trustee was negligent in ascertaining the
pertinent facts and no Trustee who is an individual shall be personally liable for any
error of judgment made in good faith by him or her unless it shall be proved that he or
she was negligent in ascertaining the pertinent facts; and
(d) the Trustee shall not be personally liable with respect to any action suffered,
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 bonds at the time
Outstanding (determined as provided in Section 15.07 hereof) 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; and
(e) 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, who is not, in either case, an employee of the Trustee, appointed with due care
by it hereunder; and
(f) the Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the holders of bonds of
any series pursuant to this Indenture, unless such holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction.
The provisions of this Section, which have been made specifically applicable to the
Trustee, shall apply to the Trustee and, if a separate or co-trustee is appointed pursuant to
Section 19.16 hereof, to any separate or co-trustee.
t2l
ssl9.03, r9.04, r9.06, 19.06
Section 19.03 The recitals contained herein and in the bonds shall be taken as the
statements of the Company and the Trustee assumes no responsibility for the correctness of
the same. The Trustee makes no representations as to the condition, genuineness, validity or
value of the Mortgaged and Pledged Property or any part thereof, or as to the title of the
Company thereto, or as to the validity or adequacy of the security afforded thereby and
hereby, or as to the validity of this Indenture or of the bonds or coupons issued hereunder.
The Trustee shall be under no responsibility or duty with respect to the disposition of any
bonds authenticated and delivered hereunder or the application of the proceeds thereof or
the application of any moneys paid to the Company under any of the provisions hereof.
Section 19.04 The Trustee and any separate or co-trustee shall not be personally liable
in case of entry by it upon the Mortgaged and Pledged Property for debts contracted or
Iiability or damages incurred in the management or operation of said property.
The Trustee, any paying agent, bond registrar, or authenticating agent, in its individual
or any other capacity, may become the holder, owner or pledgee ofbonds or coupons gecured
hereby and, subject to Sections 19.11 and 19.12 hereof, may otherwise deal with the
Company with the same rights it would have if it were not Trustee, paying agent, bond
registrar or authenticating agent.
Section 19.05 Whenever it is provided in this Indenture that the Trustee shall take any
action upon the happening of a specified event or upon the fulfillment of any condition or
upon the request of the Company or of bondholders, the Trustee taking such action shall
have full power to give any and all notices and to do any and all acts and things incidental to
such action.
Recitals herein and in bonds
those of Company
Trustee not personally liable
in case of entry
Trustee, etc. may own bonds
and coupons
Trustee's power to give notice
Section 1g.06 Any notice or demand which by any provision of this Indenture is Notice bv Trustee to companv
required or permitted to be given or served by the Trustee on the Company shall be deemed
to have been sufficiently given or served, for all purposes, by being deposited postage prepaid
in a post offrce letter box addressed (until another address is filed by the Company with the
Trustee for the purpose ofthis Section) to the Company at the address given in Section 22.08
hereof.
122
s$r9.07, 19.08
Section 19.07 To the extent permitted by Sections 19.01 and 19.02 hereof:
Trustee protected (1) The Trustee may rely and shall be protected in acting upon any Resolution,
Officers' Certificate, Engineer's Certificate, Inde- pendent Engineer's Certificate, Net
Earning Certificate, Opinion of Counsel, resolution, certificate, opinion, notice, request,
consent, order, appraisal, report, bond or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties; and any
request or direction of the Company mentioned herein shall be sufficiently evidenced by
an Officers' Certifrcate, Resolution or written order given as required by any provision
hereof; and
Trustee may consult with
counsel (2) The Trustee may consult with counsel, who may be of counsel to the Company,
and the opinion of such counsel shall be full and complete authorization and protection in
respect of any action taken or omitted or suffered by it hereunder in good faith and in
accordance with the opinion of such counsel.
The Trustee shall not be under any responsibility for the selection, appointment or
approval of any expert for any of the purposes expressed in this Indenture, except that
nothing in this Section contained shall relieve the Trustee of its obligation to exercise
reasonable care with respect to such selection, appointment or approval of independent
experts who may furnish opinions or certificates to the Trustee pursuant to any provision of
this Indenture.
Nothing contained in this Section shall be deemed to modifr the obligation of the Trustee
to exercise during the continuance of a Default, the rights and powers vested in it by this
Indenture with the degree ofcare and skill specified in Section 19.01 hereof.
Trustee need not segTegate
funds
Interest on funds with Trustee
Section 19.08 Subject to the provisions of Section 22.03 hereof, all moneys received by
the Trustee whether as Trustee or paying agent shall, until used or applied as herein
provided, be held in trust for the purposes for which they were paid, but need not be
segregated from other funds except to the extent required by law. The Trustee may allow and
credit to the Company interest on any moneys received by it hereunder at such rate, if any,
as may be agreed upon with the Company from time to time and as may be permitted by law.
L23
$$19.0E, r9.09
None ofthe provisions contained in this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur 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.
Section 19.09 The Company covenants and agrees to pay to the Trustee from time
to time, and the TYustee shall be entitled to, reasonable compensation for aII 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, which
compensation shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust, and the Company will reimburse the Trustee for all
appropriate advances made by the Trustee and will pay to the Trustee from time to timeits expenses and disbursements (including the reasonable compensation and the
expenses and disbursements of its agents and all other persons not regularly in its
employ and of its counsel), except to the extent that any such expense or disbursement
results from the Trustee's negligence or bad faith. The Company also covenants to
indemnify the Trustee for, and to hold it harmless against, any loss, [abitity or expense
arising out of or in connection with the acceptance or administration of this Indenture or
performance of its duties hereunder, including the costs and expenses of defending
against any claim of liability in the premises, except to the extent that any such expense,
loss, liability or disbursement results from the Trustee's negligence or bad faith. The
obligations of the Company under this Section shall survive the resignation or discharge
of the Trustee and the satisfaction and discharge of this Indenture, and to secure such
obligations the Trustee shall have (in addition to any other rights under this Indenture)
a lien prior to that of the bonds upon the Mortgaged and Pledged Property, including all
property and funds held or collected by the Trustee.
If, and to the extent that, the Trustee and its counsel and other persons not regularly in
its employ do not receive compensation for services rendered, reimbursement of its or their
advances, expenses and disbursements, or indemnity, as herein provided, as the result of
allowances made in any reorganization, bankruptcy, receivership, liquidation or other
proceeding or by any plan ofreorganization or readjustment
COMPENSATIoN oT TRUSTEE
"Trustee"
Trustee may request proof by
certificate signed by certain
oflicers
Action to be taken by Trustee
who becomes creditor of
Company
t24
$$19.09, 19.10, 19.11
of obligations of the Company, the Trustee shall be entitled, in priority to the holders of the
bonds, to receive any distribution of any securities, dividends or other disbursements which
would otherwise be made to the holders ofbonds in any such proceeding or proceedings and
the Trustee is hereby constituted and appointed, irrevocably, the attorney'in'fact for the
holders ofthe bonds and each ofthem to collect and receive, in their name, place and stead,
such distributions, dividends or other disbursements, to deduct therefrom the amounts due
to the Trustee, its counsel and other persons not regularly in its employ on account of
services rendered, advances, expenses, and disbursements made or incurred, or indemnity,
and to pay and distribute the balance, pro rata, to the holders ofthe bonds. The Trustee shall
have a lien upon any securities or other considerations to which the holders of bonds may
become entitled pursuant to any such plan of reorganization or readjustment of obligations,
or in any such proceeding or proceedings; and the court or judge in any such proceeding or
proceedings may determine the terms and conditions under which any such lien shall exist
and be enforced.
The term "Trustee" used in this Section includes any predecessor Trustee, provided that
the negligence and bad faith of any Trustee shall not affect the rights of any other Trustee
under this Section 19.09.
Section 19.10 Whenever in the administration of the trusts of this Indenture, prior to a
Default, and after the curing of any such Default, the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to taking or omitting or suffering any
action hereunder, such matter (unless other evidence in respect thereofbe herein specifically
prescribed) may to the extent permitted by Sections 19.01 and 19.02 hereof be deemed to be
conclusively proved and established by a certificate signed by an Authorized Executive
Officer of the Company, and by the Secretary or an Assistant Secretary or an Authorized
Financial Offrcer of the Company and delivered to the Trustee, and such certificate shall be
full warrant to the Trustee for any action taken, omitted or suffered by it under the
provisions ofthis Indenture upon the faith thereof.
Section 19.11 (a) Subject to the provisions of subdivision @) of this Section, if the
Trustee shall be or shall become a creditor, directly or indirectly, secured or unsecured, ofthe
Company within four months prior to a default (as defined in the last paragraph of this
subdivision), or subsequent to such a default, then, unless and until such default shall be
cured, the Trustee shall set apart and hold in a special account for the
t25
$19.1r
benefit of the Trustee individually, the holders of the bonds, and the holders of other
indenture securities (as defined in the last paragraph ofthis subdivision (a))
(1) an amount equal to any and all reductions in the amount due and owing upon any
claim as such creditor in respect of principal or interest effected after the beginning of
such four months period and valid as against the Company and its other creditors, except
any such reduction resulting from the receipt or disposition of any property described in
paragraph (2) of this subdivision (a) or from the exercise of any right of setoffwhich the
Trustee could have exercised if a petition in bankruptcy had been fiIed by or against the
Company upon the date ofsuch default; and
(2) alt property received in respect of any claim as such creditor, either as security
therefor, or in satisfaction or composition thereof, or otherwise, after the beginning of
such four months period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, ifany, ofthe Company and its other creditors
in such property or such proceeds.
Nothing herein contained, however, shall affect the right ofthe Trustee Certain rights of Trustee
unaffected
(A) to retain for its own account (i) payments made on account of any such claim by
any person (other than the Company) who is liable thereon, and (ii) the proceeds of the
bona fide sale of any such claim by the Trustee to a third person, and (iii) distributions
made in cash, securities, or other property in respect of claims filed against the Company
in bankruptcy or receivership or in proceedings for reorganization pursuant to the
Federal Bankruptcy Act or applicable State law;
(B) to realize for its own account, upon any property held by it as security for any
such claim, if such property were so held prior to the beginning of such four months
period;
(C) to realize, for its own account, but only to the extent of the claim hereinafter
mentioned, upon any property held by it as security for any such claim, if such claim was
created after the beginning of such four months period and such property was received as
security therefor simultaneously with the creation thereof, and if the Trustee shall
sustain the burden ofproving that at the time such property
L26
$r9.rr
was so received the Trustee had no reasonable cause to believe that a default as defined
in the last paragraph of this subdivision (a) would occur within four months; or
@) to receive payment on any claim referred to in paragraph @) or (C), against the
release of any property held as security for such claim as provided in paragraph @) or
(C), as the case may be, to the extent ofthe fair value ofsuch property.
For the purposes of paragraphs (B), (C) and @), property substituted after the beginning of
such four months period for property held as security at the time of such substitution shall,
to the extent of the fair value of the property released, have the same status as the property
released, and, to the extent that any claim referred to in any ofsuch paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding any pre-existing
claim of the Trustee as such creditor, such claim shall have the same status as such pre-
existing claim.
Apportionment of proceeds
among Trustee, bondholders,
etc.
If the Trustee shall be required to account, the funds and property held in such special
account and the proceeds thereof shall be apportioned between the Trustee, the bondholders,
and the holders of other indenture securities in such manner that the Trustee, the
bondholders, and the holders of other indenture securities realize, as a result of payments
from such special account and payments of dividends on claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, the same percentage of their respective claims,
figured before crediting to the claim of the Trustee anything on account of the receipt by it
from the Company ofthe funds and property in such special account and before crediting to
the respective claims of the Trustee, the bondholders, and the holders of other indenture
securities dividends on claims filed against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to the Federal Bankruptcy Act or applicable State
law, but after crediting thereon receipts on account of the indebtedness represented by their
respective claims from all sources other than from such dividends and from the funds and
property so held in such special account. As used in this paragraph, with respect to any
claim, the term "dividends" shall include any distribution with respect to such claim, in
bankruptcy or receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable
r27
$r9.u
State law, whether such distribution is made in cash, securities, or other property, but
shall not include any such distribution with respect to the secured portion, ifany, ofsuch
claim. The court in which such bankruptcy, receivership or proceeding for reorganization
is pending shall have jurisdiction (i) to apportion between the Trustee, the bondholders,
and the holders of other indenture securities, in accordance with the provisions of this
paragraph, the funds and property held in such special account and the proceeds thereof,
or (ii) in Iieu of such apportionment, in whole or in part, to give to the provisions of this
paragraph due consideration in determining the fairness of the distributions to be made
to the Trustee, the bondholders, and the holders of other indenture securities, with
respect to their respective claims, in which event it shall not be necessary to liquidate or
to appraise the value of any securities or other property held in such special account or
as security for any such claim, or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claims, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the beginning of such four Resisned or removed rrustee
months period shall be subject to the provisions of this subdivision (a) as though such
resignation or removal had not occurred. If any Trustee has resigned or been removed
prior to the beginning of such four months period, it shall be subject to the provisions of
this subdivision (a) if and only if the following conditions exist-
(i) the receipt of property or reduction of claim which would have given rise to the
obligation to account, if such Tlustee had continued as Trustee, occurred after the
beginning of such four months period; and
(ii) such receipt of property or reduction of claim occurred within four months
after such resignation or removal.
As used in this Section, the term "default" means any failure to make payment in full "default"
ofthe principal ofor interest upon the bonds or upon the other indenture securities when
and as such principal or interest becomes due and payable; and the term "other
indenture securities" means securities upon which the Company is an obligor (as defined
in the Trust Indenture Act) outstanding under any other indenture (a) under which the
Trustee is also trustee, (b) which contains provisions substantially similar to the
provisions of this subdivision (a), and (c) under which a default exists at the time of the
apportionment of the funds and property held in said special account.
r28
$19.u
Certain creditor relationships (b) There shall be excluded from the operation of subdivision (a) of this Section a
creditor relationship arising from-
(1) the ownership or acquisition of securities issued under any indenture, or any
security or securities having a maturity of one (1) year or more at the time of
acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of competent
jurisdiction or by this Indenture for the purpose of preserving the property subject to
the Lien of this Indenture or of discharging tax liens or other prior liens or
encumbrances on the trust estate, if notice of such advance and of the circumstances
surrounding the making thereof is given to the bondholders as provided in subdivisions
(a), O) an{ (c) ofSection 19.13 hereofwith respect to advances by the Trustee as such;
(3) disbursements made in the ordinary course of business in the capacity of trustee
under an indenture, transfer agent, registrar, custodian, paying agent, fiscal agent or
depositary, or other similar capacity;
(4) an indebtedness created as a result of services rendered or premises rented; or
an indebtedness created as a result of goods or securities sold in a cash transaction as
defined in the last paragraph of this subdivision @);
(5) the ownership of stock or of other securities of a corporation organized under the
provisions of Section 25(a) of the Federal Reserve Act, as amended, which is directly or
indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of any drafts, bills of
exchange, acceptances or obligations which fall within the classification of self-
liquidating paper as defined in the last paragraph ofthis subdivision @).
As used in this Section, the term "security'' shall have the meaning assigned to such term
in the Securities Act of 1933, as amended and in force on the date of the execution of this
Indenture; the term "cash transaction" shall mean any transaction in which full payment for
goods or securities sold is made within seven days after delivery of the goods or securities in
currency or in checks or other orders drawn upon banks or bankers and payable upon
demand; the term "self-Iiquidating papey'' shall mean any draft, bill of exchange, acceptance
or obligation which is made, drawn, negotiated or incurred by the Company for the pury)ose
excluded
"security"
"cash transaction"
"self- liquidating paper"
t29
$sr9.u, r9.12
offinancing the purchase, processing, manufacture, shipment, storage or sale ofgoods, wares
or merchandise and which is secured by documents evidencing title to, possession of, or a lien
upon, the goods, wares or merchandise or the receivables or proceeds arising from the sale of
the goods, wares or merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor relationship with the
Company arising from the making, drawing, negotiating or incurring of the draft, bill of
exchange, acceptance or obligation; and the term "Trustee" shall include the Trustee, and
any separate trustee or co-trustee appointed pursuant to Section 19.16 hereof.
Section 19.12 (a) If the Trustee has or acquires any conflicting interest, as defined by
subdivision (d) of this Section, the Trustee shall within ninety (90) days after ascertaining
that it has such conflicting interest, either eliminate such conflicting interest or resign by
giving written notice to the Company, but such resignation shall not become effective until
the appointment of a successor trustee and such successor's acceptance of such appointment.
The Company covenants to take prompt steps to have a successor appointed in the manner
hereinafter provided in Section 19.15 hereof. Upon giving such notice of resignation, the
resigning Trustee shall publish notice thereof in a Daily Newspaper of general circulation in
the Borough of Manhattan, The City of New York, New York, and in a Daily Newspaper of
general circulation in the City of Portland, Oregon, once, provided, however, that if all bonds
then Outstanding shall be registered, no notice need be given except by mail in accordance
with subdivision (c) of Section 19.13 hereof. If the resigning Trustee fails to give such notice
within ten (10) days after giving written notice of resignation to the Company, the Company
shall give such notice.
O) In the event that the Trustee shall fail to comply with the provisions of the preceding
subdivision (a) of this Section, the Trustee shall within ten (10) days after the expiration of
such ninety (90) day period transmit notice of such failure to the bondholders in the manner
and to the extent provided in subdivision (c) of Section 19.13 hereof with respect to reports
pursuant to subdivision (a) ofSection 19.13 hereof.
(c) Subject to the provisions of Section 22.06 hereof, any bondholder who has been a bona
fide holder of a bond or bonds for at least six months may, on behalf of himself, herself or
itself and all others similarly situated, petition any court ef qempetent jurisdiction for the
removal of
Trustee
Effect of confl icting interest
on part ofTrustee
Notice of conflict to bond-
holders
Bondholder petition to
remove Trustee
Conflicting Interest:
(1) Trusteeship under
another indenture of
Company
(2) Obligor on bonds or
under-writer of Company
(3) Direct, indirect orcomon control
(4) Certain employees in
comon; exceptions
130
$19.12
the Trustee and the appointment of a successor if the Trustee fails, after written request
therefor by such holder, to comply with the provisions of subdivision (a) of this Section.
(d) The Trustee shall be deemed to have a conflicting interest if-
(1) such Trustee is trustee under another indenture under which any other securities,
or certificates of interest or participation in any other securities, of the Company, are
outstanding unless such other indenture is a collateral trust indenture under which the
only collateral consists ofbonds issued under this Indenture; provided that there shall be
excluded from the operation of this paragraph (1) another indenture or indentures under
which other securities, or certificates ofinterest or participation in other securities, ofthe
Company are outstanding, ifthe Company shall have sustained the burden ofproving, on
application to the Securities and Exchange Commission and after opportunity for hearing
thereon, that trusteeship under this Indenture and such other indenture is not so likely
to involve a material conflict of interest as to make it necessary in the public interest or
for the protection of investors to disqualifu the Trustee from acting as such under one of
such indentures;
(2) the Trustee or any ofits directors or executive officers is an obligor upon the bonds
or an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly or indirectly controlled by
or is under direct or indirect common control with the Company or an underwriter for the
Company;
(4) the Trustee or any of its directors or executive offrcers is a director, officer,
partner, employee, appointee or representative of the Company, or of an underwriter
(other than the Trustee itself) for the Company who is currently engaged in the business
of underwriting, except that (A) one individual may be a director and/or an executive
officer of the Trustee and a director and"/or an executive officer of the Company, but may
not be at the same time an executive offrcer of both the Trustee and the Company; @) if
and so long as the number of directors of the Trustee in office is more than nine, one
additional individual may be a director and./or an executive officer of the Trustee and a
director of the Company; and (C) the Trustee may be designated by the Company or by
any underwriter for the Company to act in the capacity oftransfer agent, registrar,
131
s19.12
custodian, paying agent, fiscal agent, escrow agent or depositary or in any other similar
capacity or, subject to the provisions of paragraph (1) of this subdivision (d), to act as trustee,
whether under an indenture or otherwise;
(5) ten per centum (10%) or more of the voting securities of the Trustee is beneficially
owned either by the Company or by any director, partner or executive officer thereof or
twenty per centum (20o/o) ot more of such voting securities is beneficially owned,
collectively, by any two or more of such persons; or ten per centum (10%) or more of the
voting securities of the Trustee is beneficially owned either by an underwriter for the
Company or by any director, partner or executive officer thereof, or is beneficially owned,
collectively, by any two or more such persons;
(6) Ownership ofvoting
securities of Trustee
(6) the Trustee is the beneficial owner ofor holds as collateral security for an obligation
which is in default, (A) five per centum (5%) ot more of the voting securities or ten per
centum (10%) or more of any other class of security of the Company, not including the
bonds issued under this Indenture and securities issued under any other indenture under
which the Trustee is also trustee, or @) ten per centum (10%) or more of any class of
security of an underwriter for the Company;
(6) Ownership of
securities of Company
or underwriter of
Company
(7) the Trustee is the beneficial owner of, or holds as collateral security for an
obligation which is in default, five per centum (5o/o) ot more of the voting securities of any
person who, to the knowledge of the Trustee, owns ten per centum (10%) or more of the
voting securities of, or controls directly or indirectly or is under direct or indirect common
control with, the Company;
(7) Ownership ofvoting
securities of person
affiIiated with
Company
(8) the Trustee is the beneficial owner ofor holds as collateral security for an obligation
which is in default, ten per centum (10%) or more of any class of security of any person
who, to the knowledge of the Trustee, owns fifty per centum (50%) or more of the voting
securities of the Company; or
(8) Ownership ofany
securities of person
affiliated with
Company
(9) the Trustee owns on May 15 in any calendar year in the capacity of executor,
administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or
in any other similar capacity, an aggregate of twenty-five per centum (25o/o) or more of the
voting securities or of any class of security, of any person, the beneficial ownership of a
specified percentage of which would have
(9) Ownership as
executor, etc., of
securities of certain
persons specified
above
t32
s19.12
constituted a conflicting interest under paragraph (6), (7) or (8) ofthis subdivision (d). As
to any such securities of which such Trustee acquired ownership through becoming
executor, administrator or testamentary trustee of an estate which included them, the
provisions of the preceding sentence shall not apply for a period of two years from the
date of such acquisition, to the extent that such securities included in such estate do not
exceed twenty-five per centum (25o/o) of such voting securities or twenty-five per centum
(25%) of. any such class of security. Promptly after May 15 in each calendar year, the
Trustee shall review its holdings of such securities in any of the above-mentioned
capacities as of May 15. If the Company fails to make payment in full of principal or
interest upon the bonds when and as the same becomes due and payable, and such failure
continues for thirty (30) days thereafter, the Trustee shall promptly review its holdings of
such securities in any ofthe above-mentioned capacities as ofthe date ofthe expiration of
such thirty (30) day period and after such date, notwithstanding the foregoing provisions
ofthis paragraph, all such securities so held by the Trustee with sole or joint control over
such securities vested in it, shall, but only so long as such failure shall continue, be
considered as though beneficially owned by the Trustee for the puryoses of paragraphs
(6), (7) and (8) ofthis subdivision (d).
The specifications of percentages in paragraphs (5) to (9), inclusive, of this subdivision
(d) shall not be construed as indicating that the ownership of such percentages of the
securities ofa person is or is not necessary or suffrcient to constitute direct or indirect control
for the purposes ofparagraph (3) or (7) ofthis subdivision (d).
"security"
"securities"
For the purposes of paragraphs (6), (7), (S) and (9) of this subdivision (d) only, (A) the
terms "security" and "securities" shall include only such securities as are generally known as
corporate securities, but shall not include any note or other evidence of indebtedness issued
to evidence an obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms or any certificate of interest or participation in any such note or
evidence of indebtedness; (B) an obligation shall be deemed to be in default when a default in
payment of principal shall have continued for thirty (30) days or more and shall not have
been cured; and (C) the Trustee shall not be deemed to be the owner or holder of (i) any
security which it holds as collateral security (as trustee or otherwise) for an obligation which
is not in default as above defined, or (ii) any security
133
$r9.r2
which it holds as collateral security under this Indenture, irrespective of any default
hereunder, or (iii) any security which it holds as agent for collection, or as custodian, escrow
agent or depositary, or in any similarly representative capacity.
The percentages ofvoting securities and other securities specified in this Section shall be
calculated in accordance with the following provisions:
(aa) A specified percentage ofthe voting securities ofthe Trustee, the Company or any
other person referred to in this Section (each ofwhom is referred to as a "person" in this
paragraph) means such amount of the outstanding voting securities of such person as
entitles the holder or holders thereof to cast such specified percentage of the aggregate
votes which the holders ofall the outstanding voting securities ofsuch person are entitled
to cast in the direction or management of the affairs of such person.
Calculation of percentage of
securities
"person"
Ob) A specified percentage of a class of securities of a person means such percentage
ofthe aggregate amount ofsecurities ofthe class outstanding.
(cc) The term "amount", when used in regard to securities, means the principal "amount"
amount if relating to evidences of indebtedness, the number of shares if relating to
capital shares, and the number ofunits ifrelating to any other kind ofsecurity.
(dd) The term "outstanding" means issued and not held by or for the account of the "outstanding"
issuer. The following securities shall not be deemed outstanding within the meaning of
this definition:
(1) Securities ofan issuer held in a sinking fund relating to securities ofthe issuer
of the same class;
(2) Securities of an issuer held in a sinking fund relating to another class of
securities of the issuer, if the obligation evidenced by such other class of securities is
not in default as to principal or interest or otherwise;
(3) Securities pledged by the issuer thereof as security for any obligation of the
issuer not in default as to principal or interest or otherwise;
(4) Securities held in escrow if placed in escrow by the issuer thereof;
Application of Section to
Trustee and separate or co-
trustee
"underwriter"
Amendment ofSection at
Company's option based on
amendment ofTrust
Indenture Act
t34
$19.12
provided, however, that any voting securities of an issuer shall be deemed outstanding if
any person other than the issuer is entitled to exercise the voting rights thereof.
(ee) A security shall be deemed to be of the same class as another security if both
securities confer upon the holder or holders thereof substantially the same rights and
privileges; provided, however, that, in the case ofsecured evidences ofindebtedness, all of
which are issued under a single indenture, differences in the interest rates or maturity
dates of various series thereof shall not be deemed suffrcient to constitute such series of
different classes, and provided, further, that, in the case of unsecured evidences of
indebtedness, differences in the interest rates or maturity dates thereof shall not be
deemed sufficient to constitute the securities of different classes, whether or not they are
issued under a single indenture.
The provisions of this Section which have been made specifically applicable to the Trustee
shall apply to the Trustee, and, if a separate or co-trustee is appointed pursuant to
Section 19.16 hereof, to any separate or co-trustee, except that in case of the resignation of a
separate or co-trustee such resignation and the appointment of a successor shall (subject to
the provisions of subdivision (c) of this Section) be governed by the provisions of
Section 19.15 and paragraph (3) ofSection 19.16 hereof.
The term "underwriter" when used with reference to the Company means every person
who, within three years prior to the time as of which the determination is made, has
purchased from the Company with a view to, or has offered or sold for the Company in
connection with, the distribution of any security of the Company outstanding at such time, or
has participated or has had a direct or indirect participation in any such undertaking, or has
participated or has had a participation in the direct or indirect underwriting of any such
undertaking, but such term shall not include a person whose interest was limited to a
commission from an underwriter or dealer not in excess of the usual and customary
distributors' or sellers' commission.
If the Trust Indenture Act is amended at any time after the date of this Indenture to
change the circumstances under which a Trustee shall be deemed to have a conflicting
interest with respect to this Indenture or the bonds of any series or to change any of the
definitions in connection therewith, this Section 19.12 may at the Company's option be
amended by an indenture supplemental hereto to incorporate such changes.
135
$19.13
Section 19.13 (a) The Trustee shall transmit within sixty (60) days after May 3l in eachyear, beginning with the year 1989, to the bondholders as hereinafter in this
Section provided, a brief report dated as of such May 31 with respect to
(1) its eligibility and its qualifications under Sections 9.03, 19.01 and 19.12 hereof, or
in lieu thereof, if to the best of its knowledge the Trustee has continued to be eligible and
qualified under such Sections, a written statement to such effect;
(2) the character and amount of any advances (and if such Trustee elects so to state,
the circumstances surrounding the making thereof) made by such Trustee as such which
remain unpaid on the date of such report, and for the reimbursement of which such
Trustee claims or may claim a lien or charge, prior to that of the bonds on the trust estate
or on property or funds held or collected by it as Trustee, provided that such Trustee shall
not be required (but may elect) to state such advances, if such advances so remaining
unpaid aggregate not more than one-half of one per centum (Ll2 of Lo/o) of the principal
amount ofthe bonds Outstanding on the date ofsuch report;
(3) the amount, interest rate, and maturity date of all other indebtedness owing by
the Company to such Trustee in its individual capacity on the date of such report, with abrief description of any property held as collateral security therefor, except an
indebtedness based upon a creditor relationship arising in any manner described in
paragraph (2), (3), (a) or (6) ofsubdivision (b) ofSection 19.11 hereof;
(4) the property and funds physically in the possession of such Trustee on the date of
such report;
(5) any release, or release and substitution, of property subject to the Lien of this
Indenture (and the consideration therefor, ifany) which has not been previously reported;
provided, however, that to the extent that the aggregate value as shown by the release
papers of any or all of such released properties does not exceed an amount equal to one
per centum (1%) ofthe principal amount ofbonds then Outstanding, the report need only
indicate the number ofsuch releases, the total value ofproperty released as shown by the
release papers, the aggregate amount of cash received and the aggregate value of
property received in substitution therefor as shown by the release papers;
Trustee to transmit certain
reports to bondholders
Reports to be
transmitted by mail
136
(6) any additional issue of bonds which has not been previously reported; and
(7) 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 bonds or the trust estate, except in respect of a Default, notice of which has not been
or is to be withheld in accordance with the provisions of Section 15.02 hereof.
(b) The Trustee shall transmit to the bondholders as hereinafter provided a brief report
with respect to-
(1) the release, or release and substitution, of property subject to the Lien of this
Indenture (and the consideration therefor, if any) unless the fair value of such property,
as set forth in the certificate or opinion required by Sections 9.05, 10.03, 13.03, 13.04,
13.05, 13.06 or 13.07 hereof, is less than ten per centum (10%) of the principal amount of
bonds Outstanding at the time of such release, or such release and substitution, such
report to be so transmitted within ninety (90) days after such time; and
(2) 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 since
the date ofthe last report transmitted pursuant to the provisions ofsubdivision (a) ofthis
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 bond.s on the trust estate or on property or funds held or collected by it
as Trustee, and which it has not previously reported pursuant to this paragraph,
provided that the Trustee shall not be required (but may elect) to state such advances, if
such advances remaining unpaid at any time aggregate not more than ten per centum
(10%) of the principal amount of bonds Outstanding at such time, such report to be
transmitted within ninety (90) days after such time.
(c) Reports pursuant to this Section shall be transmitted by mail-
(1) to all registered holders of bonds, as the names and addresses of such holders
appear upon the registration books ofthe Company;
t37
s$r9.18, r9.r4
(2) to such holders of bonds as have, within two years preceding such
transmission, flled their names and addresses with the Trustee for that purpose;
and
(3) except in the case of reports pursuant to subdivision @) of this Section, to
each bondholder whose name and address is preserved at the time by the Trustee,
as provided in subdivision @) of Section 9.10 hereof.
(d) A copy of each such report shall, at the time of such trangmission to
bondholders, be filed by the Trustee with each stock exchange upon which the bonds
are listed and also with the Securities and Exchange Commission. The Company will
notifu the Trustee ofthe name and address of each stock exchange on which the bonds
are listed.
(e) The provisions of this Section which have been made specifically applicable to
the Trustee shall apply to the Trustee and, if a separate or co-trustee is appointed
pursuant to Section 19.16 hereof, to any separate or co-trustee. Notwithstanding any of
the provisions of this Section which require any separate or co-trustee, appointed
pursuant to Section 19.16 hereof, to transmit reports to the bondholders and to file
such reports with each stock exchange upon which the bonds are listed and also with
the Securities and Exchange Commission, such separate or co-trustee may, if he, she
or it so elects, furnish to the Trustee all information concerning such separate or co-
trustee which such separate or co-trustee is required to report, and the Trustee shall
transmit and file such information, in accordance with the provisions of this Section,
on behalfofsuch separate or co-trustee.
Section 19.14 The Trustee may at any time resign and be discharged of the
trusts hereby created by giving written notice to the Company specifying the day upon
which such resignation shall take effect and thereafter publishing notice thereof, in
one Daily Newspaper of general circulation in the Borough of Manhattan, The City of
New York, New York, and in one Daily Newspaper of general circulation in the City of
Portland, Oregon, once, and such resignation shall take effect upon the day specified in
such notice unless previously a successor trustee shall have been appointed by the
bondholders or the Company in the manner hereinafter provided in Section 19.15 and
in such event such resignation shall take effect immediately on the appointment of
such successor trustee; provided, however, that if all bonds then Outstanding shall be
registered, no notice need be given except by mail in accordance with
Filiug with stock
exchange and Securities
and Exchange Comission
Application of
Section to Trustee and
separate or co-trustee
Resignation ofTrustee
Removal of Trustee
Resignation of Trustee upon
ineligibility
Appointment of successor
trustee
138
$$1e.14, 19.r5
subdivision (c) of Section 19.13 hereof. This Section shall not be applicable to resignatrons
pursuant to Section 19.12 hereof.
Any Trustee may be removed at any time by an instrument or concurrent instruments in
writing fiIed with such Trustee and signed and acknowledged by the holders of a majority in
principal amount of the bonds then Outstanding hereunder (determined as provided in
Section 15.07 hereofl or by their attorneys-in-fact duly authorized.
In case at any time the Trustee shall cease to be eligible in accordance with the provisions
of Section 9.03 or Section 19.01 hereof, then the Trustee so ceasing to be eligible shall resign
immediately in the manner and with the effect in this Section provided; and, in the event
that it does not resign immediately in such case, then it may be removed forthwith by an
instrument or concurrent instruments in writing filed with the Trustee so ceasing to be
eligible and either (a) signed by an Authorized Executive Officer of the Company with its
corporate seal attested by the Secretary or an Assistant Secretary of the Company or
(b) signed and acknowledged by the holders of a majority in principal amount of the bonds
then Outstanding hereunder (determined as provided in Section 15.07 hereofl or by their
attorneys-in-fact duly authorized.
Section 19.15 In case at any time the Trustee shall resign or shall be removed (unless
such Trustee shall be removed as provided in subdivision (c) of Section 19.12 hereof in which
event the vacancy shall be filled as provided in said subdivision) or shall become incapable of
acting, or shall be adjudged a bankrupt or insolvent, or if a receiver of the Trustee or of its
property shall be appointed, or if 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, a vacancy shall be deemed to exist in the office ofthe Trustee, and a successor or
successors may be appointed by the holders of a majority in principal amount of the bonds
then Outstanding hereunder (determined as provided in Section 15.07 hereof) by an
instrument or concurrent instruments in writing signed and acknowledged by such
bondholders or by their attorneys-in-fact duly authorized, and delivered to such new Trustee,
notification thereof being given to the Company and the retiring Trustee; provided,
nevertheless, that until a new Trustee shall be appointed by the bondholders as aforesaid,
the Company, by instrument executed by order of its Board of Directors and duly
acknowledged by an Authorized Executive Officer of the Company, may appoint a Trustee
139
$sl9.16, r9.r6
to fill such vacancy until a new Trustee shall be appointed by the bondholders as herein
authorized. The Company shall give notice of any such appointment made by it in the
manner provided in Section 19.14 hereof. Any new Trustee appointed by the Company shall,
immediately and without further act, be superseded by a Trustee appointed by the
bondholders as above provided, ifsuch appointment by the bondholders be made prior to the
expiration of one year after the first giving of notice of the appointment of the new Trustee
by the Company.
If in a proper case no appointment of a successor Trustee shall be made pursuant to the
foregoing provisions of this Section within six months after a vacancy shall have occurred in
the office of Trustee, the holder of any bond Outstanding hereunder or any retiring Trustee
may apply to any court of competent jurisdiction to appoint a successor Trustee. Said court
may thereupon after such notice, if any, as such court may deem proper and prescribe,
appoint a successor Trustee.
If any Trustee resigns because of a conflict of interest as provided in subdivision (a) of
Section 19.12 hereof and a successor has not been appointed by the Company or the
bondholders or, if appointed, has not accepted the appointment, within thirty (30) days after
the date of such resignation, the resigning Trustee may apply to any court of competentjurisdiction for the appointment ofa successor Trustee.
Any Trustee appointed under the provisions of this Section in succession to the Original
Trustee (or in succession to any successor thereof) shall be a bank or trust company etigible
under Sections 9.03 and 19.01 hereof and qualif.ed under Section 19.12 hereof.
Any Trustee which has resigned or been removed shall nevertheless retain the lien
afforded to it by Section 19.09 hereof upon the trust estate, including all property or funds
held or collected by such Trustee, as such, to secure the amounts due to such Trustee as
compensation, reimbursement, expenses and indemnity, and shall retain the rights afforded
to it by said Section 19.09 hereof.
Section 19.16 At any time or times, for the purpose of conforming to any legal
requirements, restrictions or conditions in any State or jurisdiction in which any part of the
Mortgaged and Pledged Property then or to become subject to the Lien of this Indenture may
be located, the Company and the Trustee shall have the power to appoint, and, upon the
request of the Trustee, the Company shall for such purpose join with
Bondholder application for
appointment of successor
trustee
Application of resigned
Trustee for appointment of
successor
Qualifi cations for successor
trustee
Lien ofresigned
or removed Trustee
Appointment of separate
trustee or co-trustee
Conditions:
(1) Exercise of powers
(2) Authentication, etc. of
bonds
(3) ResigDation or removal
of separate trustee or co-
trustee
140
$r9.16
the Trustee in the execution, delivery and performance of all instruments and agreements
necessary or proper to appoint, another corporation or one or more persons approved by the
Trustee, either to act as separate trustee or trustees, or co-trustee or co'trustees jointly with
the Trustee, of all or any of the property subject to the Lien hereof. In the event that the
Company shall not have joined in such appointment within fifteen (15) days after the receipt
by it of a request so to do, the Trustee alone shall have power to make such appointment.
Every separate trustee, every co-trustee and every successor trustee, other than any
trustee which may be appointed as successor to the Original Trustee, shall, to the extent
permitted by law, but to such extent only, be appointed subject to the following provisions
and conditions, namely:
(1) The rights, powers, duties and obligations conferred or imposed upon trustees
hereunder or any of them shall be conferred or imposed upon and exercised or performed
by the Trustee and such separate trustee or separate trustees or co-trustee or co-trustees
jointty, as shall be provided in the instruments and agreements appointing such separate
trustee or separate trustees or co-trustee or co-trustees, except to the extent that under
any law of any jurisdiction in which any particular act or acts are to be performed the
Trustee shall be incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations shall be exercised and performed by such
separate trustee or separate trustees or co-trustee or co-trustees;
(2) The bonds secured hereby shall be authenticated and delivered, and all powers,
duties, obligations and rights, conferred upon the Trustee in respect of the custody of all
bonds and other securities and of all cash pledged or deposited hereunder, shall be
exercised solely by the Original Trustee or its successors in the trust hereunder; and
(B) The Company and the Trustee, at any time by an instrument in writing executed
by them jointly, may accept the resignation of or remove any separate trustee or co-
trustee appointed under this Section or otherwise, and, upon the request of the Trustee,
the Company shall, for such purpose, join with the Trustee and in the execution, delivery
and performance of all instruments and agreements necessary or proper to make effective
such resignation or
t4L
$$r9.16, 19.r7
removal. In the event that the Company shall not have joined in such action within
fifteen (15) days after the receipt by it of a request so to do, the Trustee alone shall have
power to accept such resignation or to remove any such separate trustee or co-trustee. A
successor to a separate trustee or co-trustee so resigned or removed may be appointed in
the manner provided in this Section.
No trustee hereunder shall be personally liable by reason of any act or omission of any
other trustee hereunder.
Any notice, request or other writing, by or on behalfofthe holders ofthe bonds delivered
to the Original Trustee, or its successor in the trust hereunder, shall be deemed to have been
delivered to all of the then trustees or co-trustees as effectually as if delivered to each of
them. Every instrument appointing any trustee or trustees other than a successor to the
Original Trustee shall refer to this Indenture and the conditions in this Article expressed,
and upon the acceptance in writing by such trustee or trustees or co-trustee or co-trustees,
he, she, they or it shall be vested with the estates or property specified in such instrument,
either jointly with the Original Trustee, or its successor, or separately, as may be provided
therein, subject to all the trusts, conditions and provisions ofthis Indenture; and every such
instrument shall be filed with the Original Trustee or its successor in the trust hereunder. At
the written direction ofthe Company or the Trustee, any separate trustee or trustees, or any
co-trustee or co-trustees, shall by an instrument in writing constitute the Original Trustee or
its successor in the trust hereunder his, her, their or its agent or attorney-in-fact, with full
power and authority, to the extent which may be permitted by law, to do any and all acts and
things and exercise any and all discretion authorized or permitted by him, her, them or it, for
and in behalf of him, her, them or it, and in his, her, their or its name. In case any separate
trustee or trustees or co-trustee or co-trustees, or a successor to any of them, shall die,
become incapable of acting, resign or be removed, all the estates, property, rights, powers,
trusts, duties and obligations of said separate trustee or co-trustee, so far as permitted by
law, shall vest in and be exercised by the Original Trustee or its successor in the trust
hereunder, without the appointment ofa new trustee as successor to such separate trustee or
co-trustee.
Section 19.17 Any successor trustee appointed hereunder shall execute, acknowledge
and deliver to his, her or its predecessor trustee,
Notice by bondholders to
Trustee, notice to
all trustees
Contents, frling, etc., of
instrument appointing trustee
Appointment of
agent, otc. by 6eparate trustee
or cGtrustee
Incapacity, etc. of separate
trustee or con-trustee
Acceptance of successor
trustee
RGquirements of Predecessor
upon retiring
Merger or consolidation of
Trustee
Issuance of bonds
authenticated by predecessor
trustee
t42
$$re.17, r9.rE
and also to the Company, an instrument accepting such appointment hereunder, and
thereupon such successor trustee, without any further act, deed or conveyance, shall become
fully vested with all the estates, properties, rights, powers, trusts, duties and obligations of
his, her or its predecessor in trust hereunder, with like effect as if originally named as
trustee herein; but the trustee ceasing to act shall nevertheless, on the written request ofthe
Company, or of the successor trustee, or of the holders of ten per centum (10%) in principal
amount of the bonds then Outstanding hereunder, execute, acknowledge and deliver such
instruments of conveyance and further assurance and do such other things as may
reasonably be required for more fully and certainly vesting and confirming in such successor
trustee all the right, title and interest ofthe trustee to which he, she or it succeeds, in and to
the Mortgaged and Pledged Property and such rights, powers, trusts, duties and obligations,
and the trustee ceasing to act shall also, upon like request, pay over, assign and deliver to
the successor trustee any money or other property subject to the Lien of this Indenture,
including any pledged securities which may then be in his, her or its possession. Should any
deed, conveyance or instrument in writing from the Company be required by the new trustee
for more fully and certainly vesting in and confirming to such new trustee such estates,
properties, rights, powers, trusts and duties, any and all such deeds, conveyances and
instruments in writing shall, on request, be executed, acknowledged and delivered by the
Company.
Section 19.18 Any corporation into which the Trustee may be merged or converted, or with
which it may be consolidated, or any corporation resulting from any merger, conversion or
consolidation in which the Trustee shall be a party or any corporation to which substantially
all the corporate trust business ofthe Trustee may be transferred, provided such corporation
shall be eligible under the provisions of Sections 9.03 and 19.01 hereof and qualified under
Section 19.12 hereof, shall be the successor trustee under this Indenture, without the
execution or filing ofany paper or the performance ofany further act on the part ofany other
parties hereto, anything herein to the contrary notwithstanding. In case any of the bonds
contemplated to be issued hereunder shall have been authenticated but not delivered, any
such successor to the Trustee may, subject to the same terms and conditions as though such
successor had itself authenticated such bonds, adopt the certificate of authentication of the
Original Trustee or ofany successor
t43
$sr9.rE, r9.r9, r9.20
to it, as trustee hereunder, and deliver said bonds so authenticated; and in case any of said
bonds shall not have been authenticated, any successor to the Trustee may authenticate such
bonds either in the name of any predecessor hereunder or in the name of the successor
trustee, and in all such cases such certificate shall have the full force which it is anywhere in
said bonds or in this Indenture provided that the certificate of the Trustee shall have;
provided, however, that the right to authenticate bonds in the name ofthe Original Trustee
shall apply only to its successor or successors by merger, conversion or consolidation or sale
as aforesaid.
Section 19.19 Notwithstanding any other provisions hereof, the Company, by
instrument executed by order of its Board of Directors and duly acknowledged by its proper
offrcers, may, within the period beginning January 1, 1999 and ending December 31, 1999,
and the comparable period in each succeeding decade, appoint any corporation eligible under
the provisions of Section 19.15 hereot and doing business in the United States of America, as
Trustee in succession to the Trustee as of the date of such appointment and the corporation
so appointed Trustee shall thereupon become successor Trustee hereunder until a new
Trustee shall be appointed by the bondholders as authorized herein.
Section 19.20 The Trustee may, from time to time, appoint an authenticating agent or
agents to act on its behalfand subject to its direction in connection with the authentication of
bonds of any series as fully to all intents and purposes as though such authenticating agent
had been expressly authorized in this Indenture to authenticate bonds; and such bonds so
authenticated shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as though authenticated by the Trustee hereunder. For all
pu{poses the authentication ofbonds by an authenticating agent pursuant to this Indenture
shall be deemed to be the authentication of such bonds 'by the Trustee" and whenever this
Indenture provides that "the Trustee shall authenticate" bonds such authentication by an
authenticating agent hereunder shall be deemed to be authentication by the Trustee.
Any such authenticating agent shall be a bank or trust company and a corporation
organized and doing business under the laws of the United States or of any State or
Territory or of the District of Columbia, with a combined capital and surplus of at least Five
Million Dollars ($5,000,000),
Further authentication by
successor
Appointment of successor
Trustee
Appointment of
authenticating agent
t44
sr9.20
and be authorized under such laws to act as an authenticating agent and duly registered to
act as such, if and to the extent required by applicable laws and regulations, and be 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
Iaw or to the requirements of the aforesaid supervising or examining authority, then for the
purposes ofthis Section 19.20 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. If at any time an authenticating agent hereunder shall cease to be
eligible in accordance with the provisions hereof or to be duly registered to the extent
required by applicable laws and regulations, it shall resign immediately in the manner and
with the effect herein specified.
Any corporation into which any authenticating agent may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which any authenticating agent shall be a party, or any corporation
succeeding to the authenticating agency business of any authenticating agent, shall be the
successor of the authenticating agent hereunder, if otherwise eligible under the provisions
hereof, and continue to be an authenticating agent without the execution or filing of any
paper or any further act on the part ofthe Trustee or the predecessor authenticating agent.
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 terminate the agency of
any authenticating agent by giving written notice of termination to such authenticating
agent and to the Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any authenticating agent shall cease to be eligible
hereunder or to be duly registered to the extent required by applicable laws and regulations,
the Trustee may appoint a successor authenticating agent. Any successor authenticating
agent upon acceptance of its appointment hereunder shall become vested with all the rights,
powers, duties and responsibilities of its predecessor hereunder, with like effect as if
originally named as an authenticating agent pursuant to the terms hereof. No successor
authenticating agent shall be appointed unless eligible under the provisions hereof.
The Company agrees to pay to any authenticating agent from time to time reasonable
compensation for its services, and the Trustee shall have no liability for such payments. The
Trustee shall not be responsible
145
!19.20; Art. )O( $20.01
for any misconduct, bad faith or negligence on the part of any authenticating agent
appointed with due care by it hereunder.
Any authenticating agent by the acceptance of its appointment shall be deemed to have
agreed with and warranted to the Trustee that: it will perform and carry out the duties of an
authenticating agent as herein set forth, including among other things the duties to
authenticate bonds when presented to it; it will keep and maintain and will furnish from
time to time as requested by the Trustee appropriate records of all transactions carried out
by it as authenticating agent and will furnish the Trustee such other information and reports
as the Trustee may reasonably require; it is eligible for appointment as authenticating agent
hereunder and will notify the Trustee promptly if it shall cease to be so qualified; and it will
indemnifu the Trustee against any loss, liability or expense incurred by the Trustee and will
defend any claim asserted against the Trustee by reason of any acts or failures to act of the
authenticating agent, but it shall have no liability for any action taken by it at the specific
direction of the Trustee.
The provisions of Sections 16.01, 16.02, L9.02, 19.03, 19.04, 19.09 and 22.07 of this
Indenture shall bind and inure to the benefit of each authenticating agent hereunder to the
same extent that they bind and inure to the benefit ofthe Trustee.
ARTICLE )O(
Discharge of Mortgage
Section20,01 The Trustee (and any separate trustee or trustees or co-trustee or co- Dischargeofthelienhereof
trustees appointed pursuant to the provisions of this Indenture) may, and upon request of
the Company shall, cancel and discharge the Lien hereof, and execute and deliver to the
Company such deeds and instruments as shall be requisite to satisfu the Lien hereof and
reconvey and transfer to the Company the Mortgaged and Pledged Property, whenever all
indebtedness secured hereby, including all proper charges of the Trustee hereunder, shall
have been paid or shall have been duly provided for as set forth in Section 20.02 hereof.
Notwithstanding the satisfaction and discharge ofthis Indenture, the Trustee shall have
an unsecured right to charge and be reimbursed for any expenditures and liabilities
(incurred in good faith and without negligence by the Trustee) which it may thereafter incur.
Trustee's unsecured right to
reimbursement
Bonds for payment ofwhich
money or obligations of the
United States are deposited
are deemed paid; provisos
t46
s20.02
Section 20.02 The Company may provide for the payment or redemption of
Outstanding bonds and interest thereon by depositing with the Trustee either (i) moneys in
the necessary amount or (ii) obligations of the United States of America which shall not
contain provisions permitting the redemption thereof at the option of the issuer, the
principal of and the interest on which when due, and without any regard to reinvestment
thereof, will, in the opinion of an independent accountant or other independent financial
expert delivered to the Trustee, provide moneys which, together with the moneys, if any,
deposited with or held by the Trustee, shall be sufficient to pay when due the principal of,
premium (if any) and interest due and to become due on such bonds or portions thereof on
the redemption date or maturity date thereof, as the case may be. When such sufEcient
moneys and/or obligations shall have been set apart by or deposited with the Trustee, with
irrevocable direction so to apply the same, subject to the provisions of Section 22.03 hereof
(with or without any additional right given to the holders to surrender their bonds or obtain
therefrom payment therefor prior to the redemption date) such bonds and interest thereon
shall for all purposes under this Indenture including satisfuing the Lien of this Indenture be
deemed to have been paid; provided that in case of redemption the notice requisite to the
validity of such redemption shall have been given or arrangements shall have been made
insuring to the satisfaction of the Trustee that the same will be given; and provided further
that the Trustee need not accept such deposit unless it is accompanied by 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 @) since the date ofthis Indenture there has been a
change in applicable federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the holders of such bonds or the right of
payment of interest thereon (as the case may be) will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and/or the ensuing discharge of this
Indenture 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/or discharge
had not occurred. Upon such deposit, the obligation of the Company to duly and punctually
pay or cause to be paid the principal of (and premium, if any) and interest on such bonds
shall cease, terminate and be completely discharged and the holders thereof shall thereafter
be entitled to receive payment solely from the funds deposited with the Trustee as set forth
above.
ARTICLE)Oil
Meetings and Consents of Bondholders
SECTION 21.01 Modifications and alterations of this Indenture and./or of any indenture Modification of Indenture
supplemental hereto and/or of the rights and obligations of the Company and./or of the rightsof the holders of bonds and coupons issued hereunder may be made as provided in this
Article XXI.
t47
$20.03; Art. )O(I, $$21.0r, 2r.02
SECTION 20.03 In the event that the Opinion of Counsel delivered in accordance with
Section 20.02 hereof states in effect that such income tax liability to the bondholders would
arise foom discharge of this Indenture but not from the deposit of such moneys and/or
obligations without an ensuing discharge, then in such case this Indenture shall not be
discharged until such Outstanding bonds and interest thereon have (subject to the provisionsof Section 22.03 hereof) been actually paid (or the unqualified Opinion of Counsel
contemplated by Section 20.02 hereof can be delivered); provided however that thereafter the
Company shall be relieved of its obligations to comply with the covenants of Article IX
hereof.
SECTIoN 21.02 The Trustee may at any time call a meeting of the bondholders and it
shall call such a meeting on written request of the holders of not less than a majority inprincipal amount of the bonds Outstanding hereunder at the time of such request. The
Company, pursuant to a Resolution, may also call a meeting of the bondholders at any time.In each such case the purpose or pu{poses of such meeting shall be set forth in reasonable
detail. In the event of the Trustee's failing for thirty (30) days to call a meeting after being
thereunto requested by the bondholders as above set forth, holders of Outstanding bonds in
the amount above specified in this Section or the Company, pursuant to a Resolution, may
call such meeting. Every such meeting called by and at the instance of the Trustee shall be
held in the City of Portland, oregon, or the Borough of Manhattan, The' City of New york,
New York, or with the written approval of the Company, at any other place in the United
States of America, and notice thereof, stating the place and time thereof and in general
terms the business to be submitted, shall be mailed by the Trustee not less than thirty (30)
days before such meeting (a) to all holders of bonds the names and addresses of whom are
then preserved as
Tax liability arising from
discharge; when Indenture
discharged
Call and notice ofmeeting
Place, when called by Trustee
Mailing, publication
requirements
Place, when called by
Company or bondholders
When notice not required
Attendance at meetings
Trustee may make regulations
as to deposits ofbonds
t48
s$2r.02, 21.03
required by Section 9.10 hereof, and @) to the Company addressed to it at the address given
in Section 22.08 of this Indenture (or at such other address as may be designated by the
Company from time to time), and, unless all bonds Outstanding hereunder are at the time
registered as to principal, shall be published by the Trustee once preceding the meeting, in a
Daily Newspaper of general circulation in the Borough of Manhattan, The City of New York,
New York, the publication to be not less than twenty (20) days prior to the date of such
meeting; provided, however, that the mailing of such notice to any bondholders shall in no
case be a condition precedent to the validity of any action taken at such meeting, and
provided further, however, that if all bonds then Outstanding shall be registered, no notice
need be given except by mail in accordance with subdivision (c) of Section 19.13 hereof. If
such meeting is called by or at the instance either of the Company or of the bondholders, it
shall be held at such place in the United States of America as may be specified in the notice
calling such meeting and notice thereof shall be sufficient for all purposes hereof if given as
aforesaid, stating the place and time of the meeting and in general terms the business to be
submitted. Any meeting of bondholders shall be valid without notice if the holders of all
bonds then Outstanding hereunder are present in person or by proxy and if the Company
and the Trustee are present by duly authorized representatives, or if notice is waived in
writing before or after the meeting by the Company, the holders of all bonds Outstanding
hereunder and by the Trustee, or by such ofthem as are not present in person or by proxy.
Section 21.03 Officers and nominees of the Trustee and of the Company or their or its
nominees may attend such meeting, but shall not as such be entitled to vote thereat.
Attendance by bondholders may be in person or by proxy and, unless specifically prohibited
by 1aw, any such proxy shall remain in effect unless specifically revoked and shall be binding
on any future holder of the bonds represented by such proxy, unless specifically revoked by
any such future holder before being voted. In order that the holder of any bond payable to
bearer and his, her or its proxy may attend and vote without producing his, her or its bond,
the Trustee, with respect to any such meeting, may make and from time to time vary such
regulations as it shall think fit for deposit of bonds with, or the stamping of bonds by, (i) any
banks, bankers or trust or insurance companies having a capital of not less than Five
Hundred Thousand Dollars ($500,000) or (ii) any trustee of any pension, welfare,
hospitalization or similar fund or funds having an aggregate corpus in excess of
L49
$$2r.03
Five Million Dollars ($5,000,000), or (iii) the United States of America, any Territory thereof,
the District of Columbia, any State of the United States, any municipality in any State of the
United States or any public instrumentality of the United States, any State or Territory, or
(iv) by any other person or corporation satisfactory to the Trustee, and for the issue to the
persons depositing the same of certificates by such depositaries entitling the holders thereof
to be present and vote at any such meeting and to appoint proxies to represent them and
vote for them at any such meeting as ifthe persons so present and voting, either personally
or by proxy, were the actual bearers of the bonds in respect of which such certificates shall
have been issued and any regulations so made shall be binding and effective. A bondholder
in any of the foregoing categories may sign such certificate in his, her or its own behalf. In
lieu of or in addition to providing for such deposit, the Trustee may, in its discretion, permit
such institutions to issue certificates stating that bonds were exhibited to them, which
certificates shall entitle the holders thereof to vote at any meeting only if the bonds with
respect to which they are issued are not produced at the meeting by any other person and are
not at the time of the meeting registered in the name of any other person. Each such
certificate shall state the date on which the bond or bonds in respect ofwhich such certificate
shall have been issued were deposited with or submitted to such institution and the series,
maturities and serial numbers of such bonds. In the event that two or more such certificates
shall be issued with respect to any bond or bonds, the certificate bearing the latest date shall
be recognized and be deemed to supersede any certificate or certificates previously issued
with respect to such bond or bonds. If any such meeting shall have been called under the
provisions ofSection 21.02 hereof, by bondholders or by the Company, and the Trustee shall
fail to make regulations as above authorized, then regulations to like effect for such deposit,
stamping or exhibition ofbonds and the issue of certificates by (i) any bank, banker or trust
or insurance company organized under the laws of the United States of America or of any
State thereof, having a capital of not less than Five Hundred Thousand Dollars ($500,000),
or (ii) any trustee of any pension, welfare, hospitalization, or similar fund or funds having an
aggregate coq)us in excess of Five Million Dollars ($5,000,000), or (iii) by the United States
of America, any Territory thereof, the District of Columbia, any State of the United States,
any municipality in any State of the United States or any public instrumentality of the
United States, any State or Territory
Certificate in lieu of
production
bonds
of unregistered
Persons entitled to vote at
meetings
When production of bonds
and further proof necessary
Proxies
Temporary Chaiman and
Secretary
Pemanent Chaiman and
Secretary
Inspectors ofVotes
150
s$21.03, 21.04,21,05
shall be similarly binding and effective for all purposes hereof if adopted or approved by the
bondholders calling such meeting or by the Board of Directors, if such meeting shall have
been called by the Company, provided that in either such case copies of such regulations
shall be frled with the Trustee. A bondholder in any of the foregoing categories may sign such
a certificate in his, her or its own behalf.
Section 21.04 Subject to the restrictions specified in Sections 21.03 and 21.07 hereof,
any registered holder of bonds Outstanding hereunder and any holder of a certificate (not
superseded) provided for in Section 21.03 hereof, shall be entitled in person or by proxy to
attend and vote at such meeting as holder ofthe bonds registered or certified in the name of
such holder without producing such bonds. All others seeking to attend or vote at such
meeting in person or by proxy must, if required by an authorized representative of the
Trustee or the Company or by any other bondholder, produce the bearer bonds claimed to be
owned or represented at such meeting, and everyone seeking to attend or vote shall, if
required as aforesaid, produce such further proof of bond ownership or personal identity as
shall be satisfactory to the authorized representative of the Trustee, or if none be present
then to the Inspectors ofVotes hereinafter provided for. Proxies shall be witnessed or in the
alternative may (a) have the signature guaranteed by a bank or trust company or a
registered dealer in securities, &) be acknowledged before a Notary Public or other officer
authorized to take acknowledgments, or (c) have their genuineness otherwise established to
the satisfaction of the Inspectors of Votes. AII proxies and certificates presented at any
meeting shall be delivered to said Inspectors of Votes and filed with the Trustee.
Section 21.05 Persons named by the Trustee, if it is represented at the meeting, shall
act as temporary Chairman and Secretary, respectively, of the meeting, but if the Trustee
shall not be represented or shall fail to nominate such persons or if any person so nominated
shall not be present, the bondholders and proxies present shall by a majority vote,
irrespective ofthe amount oftheir holdings, elect another person or other persons from those
present to act as temporary Chairman and/or Secretary. A permanent Chairman and a
permanent Secretary of such meeting shall be elected from those present by the bondholders
and proxies present by a majority vote of bonds represented. The Trustee, if represented at
the meeting, shall appoint two Inspectors of Votes who
151
$s2r.06, 2r.06
shall decide as to the right of anyone to vote and shall count aII votes cast at such
meeting, except votes on the election of a Chairman and Secretary, both temporary and
permanent, as aforesaid and who shall make and file with the permanent Secretary of the
meeting their verified written report in duplicate of all such votes so cast at said meeting.
If the Trustee shall not be represented at the meeting or shall fail to nominate such
Inspectors of Votes or if either Inspector of Votes fails to attend the meeting, the vacancy
shall be filled by appointment by the permanent Chairman of the meeting.
Section 21.06 The holders of:
(a) not less than sixty per centum (60%) in principal amount of the bonds
Outstanding hereunder when such meeting is held, all voting as a single class, or
(b) if the action proposed at said meeting solely adversely affects the rights of the
holders ofone or more, but less than all, series ofbonds then Outstanding, then at least
sixty per centum (60%) in principal amount of those bonds then Outstanding so to be
adversely affected, all voting as a single class,
(excluding in any case bonds disqualifred from voting by reason of the Company's interest
therein) must be present at such meeting in person or by proxy in order to constitute a
quorum for the transaction of business, less than a quorum, however, having power to
adjourn; provided, however, that if such meeting is adjourned by less than a quorum for
more than thirty (30) days, notice thereof shall be given as soon as practicable by the
Trustee if such meeting shall have been called by the Trustee (a) to the Company
addressed to it at the address given in Section 22.08 hereof (or at such other address as
may be designated by the Company in writing from time to time), and (b) to all holders of
bonds then Outstanding hereunder, the names and addresses of whom are then
preserved by the Trustee as required by the provisions ofSection 9.10 hereof, and, unless
all bonds Outstanding hereunder are at the time of such mailing registered as to
principal, shall be published at least once in each thirty (30) day period of such
adjournment in a Daily Newspaper of general circulation in the Borough of Manhattan,
The City of New York, New York, provided, however, that if all bonds then Outstanding
shall be registered, no notice need be given except by mail in accordance with subdivision
(c)of Section 19.13 hereof. Notwithstanding the foregoing, if a meeting is first adjourned
by less than a quorum for less
Quorum
Notice ofadjournment
Vote necessary for
modification or
alteration, etc., of Indenture
Limitations
t52
$$21.06, 2r.07
than thirty (30) days and is again adjourned, no such notice need be given during the period
ofthe first adjournment but such notice shall be given as soon as practicable by the Trustee
after the second adjournment and any subsequent adjournments. The failure to mail such
notice to any such bondholder as aforesaid shall in no case affect the validity of any action
taken at any meeting held pursuant to such adjournment. If such meeting shall have been
called, under the provisions of Section 21.02 hereof, by bondholders or by the Company,
notice of such adjournment shall be given by the permanent Chairman and permanent
Secretary of the meeting as above specified in this Section and shall be suf&cient if so given.
Section 21.07 Subject to the provisions of Section 15.16 hereof, any modification or
alteration of this Indenture (including any indenture supplemental hereto) and/or of the
rights and obligations of the Company and/or the rights of the holders of bonds and/or
coupons issued hereunder in any particular may be made at a meeting of bondholders duly
convened and held in accordance with the provisions of this Article, but only by resolution
duly adopted by the affrrmative vote of the holders of sixty per centum (60%) or more in
principal amount of the bonds Outstanding hereunder, all voting as a single class, or, if the
rights ofone or more, but less than all, series ofbonds then Outstanding are to be adversely
affected by action taken at such meeting, then by affirmative vote of the holders of at least
sixty per centum (60%) in principal amount of those bonds so to be adversely affected and
Outstanding hereunder, all voting as a single class, when such meeting is held, and in every
case approved by a Resolution as specified in Section 21.08 hereof; provided, however, that
no such modification or alteration shall, without the consent of the holder of any bond issued
hereunder affected thereby, (A) (1) impair or affect the right of such holder to receive
payment of the principal of (and premium, if any) and interest on such bond, on or after the
respective due dates expressed in such bond, or to institute suit for the enforcement of any
such payment on or afber such respective dates, or (2) permit the creation ofany lien ranking
prior to, or on a parity with, the Lien of this Indenture with respect to any of the Mortgaged
and Pledged Property, or (3) permit the deprivation of any nonassenting bondholder of the
benefit of a lien upon the Mortgaged and Pledged Property for the security of his, her or its
bonds (subject only to the lien of taxes, assessments or governmental charges not then
delinquent and to any mortgage or other liens existing upon such property which are prior
153
$$21.07, 2r.0E
hereto at the date of the calling of any such bondholders' meeting), or (4) permit the
reduction of the percentage required by the provisions of this Section for the taking of any
action under this Section with respect to any bond Outstanding hereunder or @) impair or
affect the right to receive payment of interest on such bond on or afber the respective due
dates expressed therein, without the consent ofthe holder ofthe right to such interest.
Except for the purpose ofwaiving any past Default ofthe Company and the consequences
thereof, in which event the provisions of Section 15.07 hereof shall be applicable, bonds
owned and/or held by and/or for account ofand/or for the benefit or interest ofthe Company,
or any corporation of which the Company shall own twenty-five per centum (25%) or more of
the outstanding voting stock, shall not be deemed Outstanding for the purpose of any vote or
of any calculation ofbonds Outstanding in this Article XXI provided for, except that, subject
to the provisions of Sections 19.01 and 19.02 hereof, for the purpose of determining whether
the Trustee shall be protected in relying on any such vote or calculation, only bonds which
the Trustee knows are so owned and/or held, shall be so excluded.
Section 21.08 A record in duplicate of the proceedings of each meeting of bondholders
shall be prepared by the permanent Secretary ofthe meeting and shall have attached thereto
the original reports ofthe Inspectors ofVotes, and affidavits by one or more persons having
knowledge of the facts showing a copy of the notice of the meeting and a copy of the notice of
adjournment thereof, if required under the provisions of Section 21.06 hereof, and showing
that said notices were mailed and published as provided in Section?l.O2 hereof and, in a
proper case, as provided in Section 21.06 hereof. Such record shall be signed and verified by
the affrdavits of the permanent Chairman and the permanent Secretary of the meeting, and
shall be delivered to the Company and to the Trustee. Any record so signed and verified shall
be proof of the matters therein stated, and such meeting shall be deemed conclusively to
have been duly convened and held and such record shall be conclusive, and any resolution or
proceeding stated in such record to have been adopted or taken, shall be deemed conclusively
to have been duly adopted or taken by such meeting. A true copy of any resolution adopted
by such meeting shall be mailed by the Trustee to all holders of bonds Outstanding
hereunder, the names and addresses ofwhom are then preserved by the Trustee pursuant to
the provisions ofSection 9.10
Bonds owned, held by' or for
account ofCompany not
deemed outstanding
Record of meeting
Conclusiveness of record
Copy of resolution to be
mailed to bondholders; proof
of mailing; effect of failure to
mail
Approval of resolution by
Company
When Company, Trustee and
bond-holders bound
Notation ofaction taken may
be made on bonds
New bonds
When supplemental
instruments may be executed
154
s$2r.08, 21.09
hereo{ and proof of such mailing by the affrdavit of some person having knowledge of the fact
shall be filed with the Trustee, but failure to mail copies of such resolution as aforesaid shall
not affect the validity thereof. No such resolution shall be binding until and unless such
resolution is approved by Resolution. It shall be the duty of the Company to frle a copy of any
such Resolution of approval with the Trustee, but if such Resolution is adopted and a
certified copy thereof is filed with the Trustee, the resolution so adopted by such meeting
shall (to the extent permitted by law) be deemed conclusively to be binding upon the
Company, the Trustee and the holders of all bonds and coupons issued hereunder, at the
expiration ofsixty (60) days after such filing, except in the event ofa final decree ofa court of
competent jurisdiction setting aside such resolution, or annulling the action taken thereby in
a legal action or equitable proceeding for such pu{poses commenced within such sixty (60)
day period; provided, however, that no such resolution of the bondholders, or Resolution,
shall in any manner change or modifu or be so construed as to change or modifu any of the
rights, immunities or obligations of the Trustee without its written assent thereto.
SECTION 21.09 Bonds authenticated and delivered after the date of any bondholders'
meeting may bear a notation in form approved by the Trustee as to the action taken at
meetings of bondholders theretofore held. If the Company or the Trustee shall so determine,
new bonds so modified as in the opinion of the Trustee and the Company to conform to such
bondholders'resolution shall be prepared, authenticated and delivered, and upon demand of
the holder of any bond then Outstanding and affected thereby shall be exchanged without
cost to such bondholders for bonds then Outstanding hereunder upon surrender of such
bonds with all unmatured coupons, if any, appertaining thereto. The Company or the
Trustee may require bonds Outstanding to be presented for notation or exchange as
aforesaid if either shall see fit to do so. Instruments supplemental to this Indenture
embodying any modification or alteration of this Indenture (including any indenture
supplemental hereto) made at any bondholders' meeting and approved, by a Resolution, as
aforesaid, may be executed by the Trustee and the Company and upon demand of the
Trustee, or ifso specified in any resolution adopted by any such bondholders'meeting, shall
be executed by the Company and the Trustee.
155
$$2r.09,2r.10
Any instrument supplemental to this Indenture executed pursuant to the provisions of
this Section shall comply with all applicable provisions of the Trust Indenture Act, as
amended and in force on the date ofthe execution ofsuch supplemental indenture.
SECTT9N 21.10 (A) Anything contained in this Article to the contrary notwithstanding,
the Trustee shall receive the written consent (in any number of instruments of similar tenor
executed by bondholders or by their attorneys appointed in writing) of the holders of sixty
per centum (60%) or more in principal amount of the bonds Outstanding hereunder all voting
as a single class (or if the rights of one or more, but less than all, series of bonds then
Outstanding are to be adversely affected by action taken pursuant to such consent, then by
consent of the holders of at least sixty per centum (60%) in principal amount of those bonds
so to be adversely affected and Outstanding hereunder all voting as a single class) (in all
cases, at the time the last such needed consent is delivered to the Trustee) in lieu of the
hotding of a meeting pursuant to this Article and in lieu of all action at such a meeting and
with the same force and effect as a resolution duly adopted in accordance with the provisions
of Section 21.07 hereof.
@) Such instruments of consent shall have their genuineness established to the
satisfaction of the Trustee.
The amount ofbonds payable to bearer, and the series and serial numbers thereof, held
by a person executing an instrument of consent (or whose attorney has executed an
instrument of consent in his, her or its behalfl, and the date of his, her or its holding the
same, may be proved either by exhibiting the bonds themselves to the Trustee or by a
certificate executed by any person or corporation satisfactory to the Trustee. A bondholder in
any of the foregoing categories may sign a certificate in his, her or its own behalf.
Each such certificate shall be dated and shall state in effect that as ofthe date thereof, a
coupon bond or bonds bearing a specified serial number or numbers was deposited with or
exhibited to the signer of such certificate. The holding by the person named in any such
certificate of any bond specified therein shall be presumed to continue unless (1) any
certificate bearing a later date issued in respect ofthe same bond shall be produced, (2) the
bond specified in such certificate (or any bond or bonds issued in exchange or substitution for
such bond) shall be produced by
Written consent of
bondholders in lieu of
meeting
Genuineness of con*ent to be
established
156
$21.10; Art. )OilI, $22.0r
another holder, or (3) the bond specified in such certificate shall be registered as to principal
in the name of another holder or shall have been surrendered in exchange for a fuIly
registered bond registered in the name of another holder. The Trustee may, in its discretion,
require further proof in cases where it deems further proof desirable. The ownership of
registered bonds shall be proved by the registry books.
Revocation of consent (C) Until such time as the Trustee shall receive the written consent of the necessaly per
centum in principal amount of the bonds required by the provisions of subsection (A) above
for action contemplated by such consent, any holder ofany bond, the serial number ofwhich
is shown by the evidence to be included in the bonds the holders ofwhich have consented to
such action, may, by filing written notice with the Trustee at its corporate trust office and
upon proof of holding as provided in subsection @) above, revoke such consent so far as it
concerns such bond. Except as aforesaid, any such consent shall be conclusive and binding
upon such holder and upon all future holders of such bond (and any bond issued in lieu
thereof or exchanged therefor), irrespective of whether or not any notation of such consent is
made upon such bond, and in any event any action taken by the holders ofthe percentage in
aggregate principal amount of the bonds specified in subsection (A) above in connection with
such action shall, subject to the provisions of the last sentence of Section 21.08 hereof, be
conclusively binding upon the Company, the Trustee and holders ofall the bonds.
ARTICLE )OilI
Miscellaneous
Limitation of rights under
Indenture Section 22.01 Nothing in this Indenture, expressed or implied, is intended, or shall be
construed, to confer upon, or to give to, any person, firm or corporation, other than the
parties hereto and the holders of the bonds and coupons Outstanding hereunder, any right,
remedy, or claim under or by reason ofthis Indenture or any covenant, condition, stipulation,
promise or agreement hereof, and all the covenants, conditions, stipulations, promises and
agreements in this Indenture contained by and on behalf of the Company shall be for the sole
and exclusive benefit ofthe parties hereto, and ofthe holders ofthe bonds and ofthe coupons
Outstanding hereunder.
r57
s$22.02
Section 22.02 Any money which is held by the Trustee (other than money which is held
by it for the purpose of effecting the purchase, payment or redemption of any bonds issued
hereunder or the payment of any coupons or interest claims appertaining to bonds issued
hereunder or which it has been directed to apply to any such purchase, payment or
redemption which may only be invested in any bonds or other obligations of the United
States of America designated by the Company) shall, at the request of the Company,
evidenced by an Officers' Certificate, be invested or reinvested by the Trustee in any
Investment Securities designated by the Company, and, unless ths Qempany is in default in
the payment of interest on any of the bonds then Outstanding hereunder or one or more
Defaults shall have occurred and be continuing, any interest on such bonds or other
obligations which may be received by the Trustee shall be forthwith paid to the Company.
Such bonds or other obligations shall be held by the Trustee as a part ofthe Mortgaged and
Pledged Property and subject to the same provisions hereof as the cash used to purchase the
same, but upon a like request of the Company, the Trustee shall sell all or any designated
part of the same and the proceeds of such sale shall be held by the Trustee subject to the
same provisions hereof as the cash used by it to purchase the bonds or other obligations so
sold. Ifsuch sale shall produce a net sum less than the cost ofthe bonds or other obligations
so sold, the Company covenants that it will pay promptly to the Trustee such amount of cash
as with the net proceeds from such sale will equal the costs of the bonds or other obligations
so sold, and ifsuch sale shall produce a net sum greater than the costs ofthe bonds or other
obligations so sold, the Trustee shall promptly pay to the Company an amount in cash equal
to such excess.
Unless the Company is in Default, any money in excess of the sum of Fifty Thousand
Dollars ($50,000) which shall have been held by the Trustee for a period of five years,
invested or uninvested (other than money which is held by it for the purpose of effecting the
purchase, payment or redemption of any bonds issued hereunder or the payment of any
coupons or interest claims appertaining to bonds issued hereunder or which it has been
directed to apply to any such purchase, payment or redemption), shall be applied by the
Trustee to the redemption of bonds to the extent any bonds then Outstanding are, by their
terms, redeemable, selected as provided in Section L2.02 hereof from the bonds of those
series then redeemable, designated by the Company. Any moneys not so applied
Investment of cash by Trustee
in certain securities
Such securities held by
Trustee as part ofMortgaged
and Pledged Property
Disposition ofcertain cash in
excess of $60,000 held over
five years
Bonds or coupons not
presented when due
When Trustee to pay over to
Company amount unclaimed
Rights may be waived or
surrendered by Company
Company may enter into
further covenants for benefit
of one or more series of bonds
158
$$22.02, 22.03,22.04
to redemption of bonds shall be held, applied or withdrawn in accordance with the other
provisions of this Indenture. In the case of any such redemption, the Trustee shall have
power to give any and all redemption notices for or on behalf of the Company.
SECTI6N 22.03 In the event that any bond issued hereunder shall not be presented for
payment when the principal thereof becomes due, either at maturity or otherwise, or at the
date fixed for the redemption thereof, or in the event that any coupon shall not be presented
for payment at the due date thereof and the Company shall have deposited with the Trustee
or any paying agent for the purpose or left with either of them if previously so deposited,
money sufficient to pay the principal of such bond (and premium, if any), together with all
interest due thereon to the date of the maturity of such bond or to the date fixed for the
redemption thereof, or to pay such coupon, as the case may be, for the use and benefit ofthe
holder thereof, the Trustee or such paying agent shall, in case the holder of any such bond or
coupon shall not, within two years after the maturity of any such bond or coupon or the date
fixed for the redemption of any such bond, claim the amount deposited as above stated for
the payment thereof, pay over to the Company such amount so deposited, if to the knowledge
of the Trustee the Company is not at the time in default hereunder; and the Trustee or such
paying agent shall thereupon be relieved from all responsibility to the holder thereof, and in
the event of such payment to the Company the holder of any such bond or coupon shall
(subject to any applicable statute of limitations) be deemed to be an unsecured creditor of the
Company for an amount equivalent to the amount deposited as above stated for the payment
thereofand so paid over to the Company.
SECTI6N 22.04 Any power, privilege or right expressly or impliedly reserved to or in any
way conferred upon the Company by any provision of this Indenture, whether such power,
privilege or right is in any way restricted or is unrestricted, may be in whole or in part
waived or surrendered or subjected to any restriction if at the time unrestricted or to
additional restriction if already restricted, and the Company may enter into any further
covenants, limitations, restrictions or provisions for the benefit of any one or more series of
bonds issued hereunder and provide that a breach thereof shall be equivalent to a Default
under this Indenture, or the Company may cure any ambiguity contained herein, or in any
supplemental indenture, or may (in lieu of establishment in
159
$$22.04,22.06
accordance with Section 2.03 hereofl establish the forms, terms and provisions of any series
of bonds other than the First Series, by an instrument in writing executed by the Company.
Alternative provisions relating to redemption of a particular series may be provided for in
the relevant supplemental indenture, in lieu of the provisions of Article XII hereof. The
Trustee is hereby authorized to join with the Company in the execution of any such
instrument or instruments. Such instrument shall be delivered to the Trustee and thereupon
any modification of the provisions of these presents therein set forth, authorized by this
Section, shall be binding upon the parties hereto, their successors and assigns, and the
holders ofthe bonds and coupons hereby secured. Anything herein contained to the contrary
notwithstanding, this Section 22.04 shall not be construed to permit any act, waiver,
surrender or restriction adversely affecting in any material respect any bonds then
Outstanding hereunder or imposing upon the Trustee any duty or obligation that it
reasonably deems to be unduly burdensome.
SECTION 22.05 Each certificate or opinion which is specifically required by the
provisions of this Indenture to be delivered to the Trustee with respect to compliance with a
condition or covenant herein contained shall include (1) a statement that the person making
such certificate or opinion has read such covenant or condition; (2) a briefstatement 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 ofsuch
person, he or she has made such examination or investigation as is necessary to enable him
or her 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.
Every request or application by the Company for action by the Trustee shall be
accompanied by an Officers' Certificate and an Opinion of Counsel stating in each case that
in the opinion of the person making such certificate or opinion the conditions precedent, if
any, to such action, provided for in this Indenture (including any covenants compliance with
which constitutes a condition precedent), have been complied with.
Trustee may join with
Company in execution of
instrlments
Fomal requirements of
certifrcates or opinions
Requirements for request for
action by Tlustee
Successors and assigns
PaS,ment of court costs and
attorney's fees in certain suits
Successors and assigns
Company's and Trustee's
mailing addresses
160
$$22.05, 22.06, 22.07, 22.0E
The same of6cer or offtcers of the Company, or the same engineer or cousel or other
person, as the case may be, need not certifu to all the matters required to be certified under
the provisions of any Article, Section, subsection, subdivision, paragraph or clause hereof,
but different officers, engineers, counsel or other persons may certi& to different facts
respectively.
SECTISN 22.06 All parties to this Indenture agree, and each holder or owner of any
bond by his, her or its acceptance thereofshall be 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 suffered, taken or omitted by it
as Trustee, the fiting by any party litigant in such suit ofan undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs, including
reasonable attorney's fees (including attorney's fees for trial, any appeal and any petition for
review), 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, to any suit instituted by any
bondholder, or group of bondholders, holding in the aggregate more than ten per centum
(10%) in principal amount of the bonds Outstanding (determined as provided in
Section 15.07 hereofl, or to any suit instituted by any bondholder for the enforcement ofthe
payment of the principal of or interest on any bond, on or after the respective due dates
expressed in such bond.
SECTToN 22.07 Subject to the provisions of Article XVIII and Article XIX hereof,
whenever in this Indenture any of the parties hereto is named or referred to (except in
subdivision (1) of Section 1.05 hereof) this shall be deemed to include the successors or
assigns of such party, and all the covenants and agreements in this Indenture contained by
or on behalf of the Company or by or on behalf of the Trustee shall bind and inure to the
benefit of the respective successors and assigns of such parties whether so expressed or not.
SECTION 22.08 For purposes of all notices to be given to the parties hereunder, and
until further changed by notice in writing, the Company's mailing address is 851 SW Sixth
Avenue, Portland, Oregon 97204; and the Trustee's mailing address is 30 West Broadway,
New York, New York 10015, attention: Corporate Trust Department.
161
$$22.09, 22.10, 22.1t, 22.12
SECTIoN 22.09 If any provision of this Indenture limits, qualifies, or conflicts with
another provision of this Indenture which has been required to be included pursuant to any
requirements of Sections 310 to 317, inclusive, of the Trust Indenture Act, such required
provision shall control.
SECTIoN 22.10 Wherever reference is made in this Indenture to the Trust Indenture
Act (except as may be errident by the context in Section 8.01 hereof and except in
Section 21.09 hereof), reference is made to such Act as it was in force on the date of the
execution of this Indenture.
SECTIoN 22.11 The titles of the several Articles of this Indenture, the marginal
Section and marginal Article references and the table of contents shall not be deemed to be
any part hereof.
Trust Indenture Act to control
Trust Indenture Act as in
force when Indenture
executed
Titles ofArticles, etc., not
part of Indenture
SECTIoN 22.12 This Indenture may be executed in several counterparts, each of which Execution in counterparts
shall be an original and all of which shall constitute but one and the same instrument.
r62
Testimonim IN WITNESS WHEREoF, PACIFICoRP, an Oregon corporation, has caused its corporate
name to be hereunto afExed, and this instrument to be signed and sealed by an Authorized
Executive Officer of the Company, and its corporate seal to be attested by its Secretary or
one of its Assistant Secretaries for and in its behaH, and Morgan Guaranty Trust Company
ofNew York, in token ofits acceptance ofthe trust hereby created, has caused its corporate
name to be hereunto affixed, and this instrument to be signed and sealed by one of its Vice
Presidents and its corporate seal to be attested by one of its Assistant Secretaries, all as of
the day and year first above written.
Signatures and seals PacifiCorp
By: RoBERTF.LANZ
Title: Vice hesident
ICoRPoRATE Soar,I
Arrnsr:
JoHN M. SCHWEITZER
Assistant Secretary
MoRGAN GuEnENry TRUST
CovpaNy oF NEw YoRK
By: R. E. SPARRow
Tilte: Vice Presid,ent
ICoRPoRATE Spall
Art:rsr:
W. A. SPooNER
Assistant Secretary
163
STATE oF OREGoN
COUNTY OF MULTNOMAH ss.
On this ninth day of January, 1989, before me, LEONARD W. SURRY, a Notary Public in
and for the State of Oregon, personally appeared RoBERT F. LANZ and JoHN M.
SCHWEITZER, known to me to be a Vice President and an Assistant Secretary, respectively, of
PaciliCorp, an Oregon corporation, who being duly sworn, stated that the seal affrxed to the
foregoing instrument is the corporate seal of said corporation, and acknowledged this
instrument to be the free, voluntary and in all respects duly and properly authorized act and
deed of said corporation.
IN WITNESS WHEREoF, I have hereunto set my hand and offrcial seal the day and year
first above written.
LEONARD W. SURRY
My Commission expires: October 27, 1989
Residing at: Gresham, Oregon
tsEALI
STATE oF NEw YoRK
COUI{TY OF NEW YORK )
On this fourth day of January, 1989, before me, STEPHEN D. RYAN, III, a Notary Public in
and for the State of New York, personally appeared R. E. SPARRoW and W. A. SPooNER,
known to me to be a Vice President and an Assistant Secretary, respectively, of Morgan
Guaranty Trust Company of New York, a New York trust company, who being duly sworn,
stated that the seal affixed to the foregoing instrument is the corporate seal of said company
and acknowledged this instrument to be the free, voluntary and in all respects duly and
properly authorized act and deed of said company.
IN WITNESS WHEREoF, I have hereunto set my hand and offrcial seal the day and year
first above written.
STEPHEN D. RYAN,III
Stephen D. Ryan, III
Notary Public, State ofNew York
No. 31-4?00229
Qualified in New York County
Commission expires January 31, 1990
Residing at Pound Bidge, New York
tsEALI
t64
EXHIBIT X Exhibits
(1) To amend Section 37 of the Pacific Mortgage to read as follows:
Section 37. (I) The Company hereby covenants that it will keep or cause to
be kept all the property subject to the Lien hereof insured against fire, to the
extent that property of similar character is usually so insured by companies
similarly situated and operating Iike properties, to a reasonable amount, by
reputable insurance companies, any loss, except as to materials and supplies and
except as to any particular loss less than the greater of Four Million Dollars
($4,000,000) or two per centum (2%) of the bonds Outstanding hereunder on the
date of such particular loss, to be made payable to the Trustee as the interest of
the Tlustee may appear, or to the trustee or other holder ofany mortgage or other
lien constituting a Qualified Lien or any other lien prior hereto upon property
subject to the Lien hereof, if the terms thereof require losses so to be made
payable or that it will, in lieu of or supplementing such insurance in whole or in
part, adopt some other method or plan of protection against loss by fire at Ieast
equal in protection to the method or plan of protection against loss by fire of
companies similarly situated and operating properties subject to similar fire
hazards or properties on which an equal primary fire insurance rate has been set
by reputable insurance companies, and that if it shall adopt such other method or
plan, it will, except as to materials and supplies and except as to any particular
loss less than the gxeater of Four Million DoIIars ($4,000,000) or two per centum
(2%) of. the bonds Outstanding hereunder on the date of such particular loss, pay
to the Trustee on account of any loss sustained by reason of the destruction or
damage of such property by fire, an amount of cash equal to such loss less any
amounts otherwise paid to the Trustee, or to the trustee or other holder of any
mortgage or other lien constituting a Qualified Lien or any other lien prior hereto
upon property subject to the Lien hereof, if the terms thereof require losses so to
be paid. Any amounts of cash so required to be paid by the Company pursuant to
any such method or plan shall for the purposes of this Indenture be deemed to be
proceeds of insurance. In case of the adoption of such other method or plan of
protection, the Company shall also furnish to the Trustee a certificate of an
actuary or other qualified person appointed by the Company with respect to the
adequacy of such method or plan.
165
(II) AII moneys paid to the Trustee by the Company in accordance with this
Section or received by the Trustee as proceeds of any insurance against loss by fire
shall, subject to the requirements of any mortgage constituting a Qualified Lien or
any other lien prior hereto upon property subject to the Lien hereof, be held by the
Trustee and, subject as aforesaid, shall be paid by it to the Company to reimburse the
Company for an equal amount expended or committed for expenditure in the
rebuilding or renewal of the property destroyed or damaged, upon receipt by the
Trustee of (1) an Offrcers' Certificate requesting such reimbursement, (2) an
Engineer's Certificate stating the amounts so expended or committed for expenditure
and the nature of such rebuilding or renewal and the fair value to the Company of the
property rebuilt or renewed or to be rebuilt or renewed and if
(A) within six months prior to the date of acquisition thereof by the Company,
such property has been used or operated, by a person or persons other than
the Company, in a business similar to that in which it has been or is to be
used or operated by the Company, and
(B) the fair value to the Company of such property as set forth in such Engineer's
Certfficate is not less than Twenty-five Thousand DoIIars ($25,000) and not
Iess than one per centum (L%) of the aggregate principal amount of the
bonds at the time Outstanding under this Indenture,
the Engineer making such certificate shall be an independent Engineer, and
(3) an Opinion of Counsel that the property so rebuilt or renewed or to be rebuilt or
renewed is or will be subject to the Lien hereof to the same extent as was the property
so destroyed or damaged; provided, however, that to the extent that moneys paid by
the Trustee to the Company for reimbursement, as aforesaid, shall represent the
proceeds ofproperty that was not Funded Property destroyed or damaged by fire, the
property so rebuilt or renewed (for which reimbursement is so made), shall not be
deemed to be Funded Property.
(IID AnV such money not so applied within eighteen (18) months after its
receipt by the Trustee, or in respect of which notice in writing of intention to apply
the same to the work of rebuilding or renewal then in progress and uncompleted shall
not have been given
166
to the Trustee by the Company within such eighteen (18) months, or which trhs Qsmpan!
shall at any time notify the Tlustee is not to be so applied, shall thereafber be withdrawn,
used or applied in the manner, to the extent and for the purposes and subject to the
conditions provided in Section 61 hereof.
(IV) Anything in this Indenture to the contrary notwithstanding, the Company may
have fire insurance policies with (a) a deductible provision in a dollar amount per
occurrence not exceeding the greater of Five Million Dollars ($5,000,000) or three per
centum (3%) of. the bonds Outstanding hereunder on the date such policy goes into effect
and/or (b) co-insurance or self insurance provisions with a dollar amount per occurrence
not exceeding 30o/o of the loss proceeds otherwise payable; provided, however, the dollar
amount described in clause (a) above may be exceeded to the extent such dollar amount
per occurrence is below the deductible amount in effect as to fire insurance (x) on property
of similar character insured by companies similarly situated and operating like property
or (y) on property as to which an equal primary fire insurance rate has been set by
reputable insurance companies.
(2) To eliminate the provisions of (and the references to) Section 39 of the Pacific
Mortgage, as amended as stated in Section 1 of the Nineteenth Supplemental Indenture, and
to eliminate the references to said Section 39 from clause (II) of Section 4 of the Pacific
Mortgage, from clause (e) of Section 5 of the Pacific Mortgage, from Section 29 of the Pacific
Mortgage, and to eliminate all other references to said Section 39 wherever they may appear
in the Pacific Mortgage, as supplemented.
(3) To except from the Lien of the Pacific Mortgage all interest of the Company, as owner,
lessee or otherwise, in the Wyodak Facility (as the same is defrned herein) including, without
Iimitation, any equipment, parts, improvements, substitutions, replacements or other
property relating thereto.
167
D(HIBIT Y
(1) To amend Section 37 of the Utah Mortgage to read as follows
SrcttoN 37. (I) The Company hereby covenants that it will keep or cause to be kept
all the property subject to the Lien hereof insured against fire, to the extent that
property of similar character is usually so insured by companies similarly situated and
operating Iike properties, to a reasonable amount, by reputable insurance companies,
any loss, except as to materials and supplies and except as to any particular loss less
than the greater of Fow Million DoIIars ($4,000,000) or two per centum (2%) of the bonds
Outstanding hereunder on the date of such particular loss, to be made payable to the
Trustee as the interest ofthe Trustee may appear, or to the trustee or other holder ofany
mortgage or other Iien constituting a Qualified Lien or any other lien prior hereto upon
property subject to the Lien hereof, if the terms thereof require losses so to be made
payable or that it will, in lieu of or supplementing such insurance in whole or in part,
adopt some other method or plan of protection against loss by fire at least equal in
protection to the method or plan of protection against loss by fire of companies similarly
situated and operating properties subject to similar fire hazards or properties on which
an equal primary fire insurance rate has been set by reputable insurance companies, and
that if it shall adopt such other method or plan, it will, except as to materials and
supplies and except as to any particular loss less than the greater of Four Million DoIIars
($4,000,000) or two per centum (2%) of the bonds Outstanding hereunder on the date of
such particular loss, pay to the Tlustee on account of any loss sustained by reason of the
destruction or damage ofsuch property by fire, an amount ofcash equal to such loss less
any amounts otherwise paid to the Tlustee, or to the trustee or other holder of any
mortgage or other lien constituting a Qualified Lien or any other lien prior hereto upon
property subject to the Lien hereof, if the terms thereof require losses so to be paid. Any
amounts of cash so required to be paid by the Company pursuant to any such method or
plan shall for the purposes of this Indenture be deemed to be proceeds of insurance. In
case of the adoption of such other method or plan of protection, the Company shall also
furnish to the Trustee a certificate of an actuary or other qualified person appointed by
the Company with respect to the adequacy of such method or plan.
168
(ID All moneys paid to the Trustee by the Company in accordance with this
Section or received by the Trustee as proceeds of any insurance against loss by fire
shall, subject to the requirements of any mortgage constituting a Qualified Lien or
any other lien prior hereto upon property subject to the Lien hereof, be held by the
Trustee and, subject as aforesaid, shall be paid by it to the Company to reimburse the
Company for an equal amount expended or committed for expenditure in the
rebuilding or renewal of the property destroyed or damaged, upon receipt by the
Trustee of (1) an Officers' Certificate requesting such reimbursement, (2) an
Engineer's Certificate stating the amounts so expended or committed for expenditure
and the nature of such rebuilding or renewal and the fair value to the Company of the
property rebuilt or renewed or to be rebuilt or renewed and if
(A) within six months prior to the date of acquisition thereof by the Company,
such property has been used or operated, by a person or persons other than
the Company, in a business similar to that in which it has been or is to be
used or operated by the Company, and
(B) the fair value to the Company of such property as set forth in such Engineer's
Certificate is not less than Twenty-five Thousand Dollars ($25,000) and not
Iess than one per centum (L%) of the aggregate principal amount of the
bonds at the time Outstanding under this Indenture,
the Engineer making such certificate shall be an independent Engineer, and (3) an
Opinion of Counsel that the property so rebuilt or renewed or to be rebuilt or renewed is
or will be subject to the Lien hereof to the same extent as was the property so destroyed
or damaged; provided, however, that to the extent that moneys paid by the TYustee to the
Company for reimbursement, as aforesaid, shall represent the proceeds of property that
was not Funded Property destroyed or damaged by fire, the property so rebuilt or
renewed (for which reimbursement is so made), shall not be deemed to be Funded
Property.
(III) Any such money not so applied within eighteen (18) months after its receipt by
the Tlustee, or in respect of which notice in writing of intention to apply the same to the
work of rebuilding or renewal then in progress and uncompleted shall not have been
given
169
to the Trustee by the Company within such eighteen (18) months, or which the
Company shall at any time notifr the T?ustee is not to be so applied, shall
thereafter be withdrawn, used or applied in the manner, to the extent and for the
purposes and subject to the conditions provided in Section 71 hereof.
(ID Anything in this Indenture to the contrary notwithstanding, the
Company may have fire insurance policies with (a) a deductible provision in a
dollar amount per occurrence not exceeding the greater of Five Million Dollars
($5,000,000) or three per centum (3%) ofthe bonds Outstanding hereunder on the
date such policy goes into effect and/or (b) co-insurance or selfinsurance provisions
with a dollar amount per occurrence not exceeding 30% of the loss proceeds
otherwise payable; provided, however, the dollar amount described in clause
(a) above may be exceeded to the extent such dollar amount per occurrence is
below the deductible amount in effect as to frre insurance (x) on property of similar
character insured by companies similarly situated and operating like property or
(y) on property as to which an equal primary fire insurance rate has been set by
reputable insurance companies.
(2) To eliminate the provisions of (and the references to) Section 39 of the Utah
Mortgage, the amendment to said Section 39 contained in Section 3 of the Twenty-
second Supplemental Indenture, Section 4 of the Twenty-second Supplemental
Indenture, as amended, and to eliminate the references to said Section 39 from clause(I) of Section 4 of the Utah Mortgage, from clause (c) of Section 5 of the Utah
Mortgage, from Section 29 of the Utah Mortgage, and to eliminate all other references
to said Section 39 wherever they may appear in the Utah Mortgage, as supplemented.
t70
EXHTBIT Z
A tract of land in Klamath County, Oregon, more particularly described as follows:
PARCEL 1: Lots 71 through 92, inclusive, in Block 3, First Addition to Buena Vista,
according to the official plat thereof on file in the records of Klamath County, and
PARCEL 2: Beginning at the southeast corner of Lot 92 in Block 3, First Addition to
Buena Vista;
thence South 14" 27' East along the westerly line of Front Street a distance of 496.7
feet to a point;
thence continuing along the southwesterly line of Front Street South 58o 41' East a
distance of 63.4 feet to the most northerly corner of tract conveyed by Deed recorded at
Volume 200, page 9, Deed at Records of Klamath County;
thence South 31o 19'West to the shore line of Upper Klamath Lake;
thence northwesterly along said shore line to the southwest corner of Lot 92, Block 3,
First Addition to Buena Vista;
thence North 75o 33'East along the southerly line ofsaid Lot 92, a distance of 135 feet,
more or less to the point of beginning.
LESS AND EXCEPTING a parcel of land 25 feet x 35 feet heretofore conveyed to the City
of Klamath Falls by Deed dated March 10, 1961, recorded March 31, 1961 in Volume 328,
page 277, Deed Records of Klamath County.
EXHIBIT 5.1
September 25, 2020
PacifiCorp
825 N.E. Multnomah Sheet
Portlan4 Oregon97232
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as special counsel to PacifiCorp, an Oregon corporation (the "Company"), in connection with the preparation and filing of a
registration statement on Form S-3 (the "Registration Statemenf') filed with the Securities and Exchange Commission (the "Commission") pursuant to the
Securities Act of 1933, as amended (the "Securities Act") and the rules and regulations promulgated thereunder (the "Rules"), for the registration ofthe sale
from time to time by the Company of debt securities of the Company in the form of First Mortgage Bonds (the "securities").
We understand that the Securities will be sold or delivered Aom time to time as set forth in the Registration Statement the applicable prospectus
contained therein (the "Prospectus") and supplements to the Prosp€ctus (the "Prospectus Supplements"). The Securities will be issued in one or more series
pursuant to the Mortgage and Deed of Trust, dated as of January 9, 1989, between the Company and The Bank ofNew York Mellon Trust Company, N.A.
(the "Trustee"), as successor trustee, as amended and supplanented (the "Mortgage"). The Mortgage is in the form filed as an exhibit to the Registration
Statement.
In ow capacity as counsel to the Company we have examined such documents, agreements and instruments as we have deemed necessary for the
opinions expressed below. As to matters of fact material to the opinions expressed herein, we have relied on (a) information in public authority documents and
(b) information provided in certificates of offtcers of the Company. We have not independently verified the facts so relied on. In our examinatioq we have
assumed the following without investigation: (a) the authenticity of original documents and the genuineness of all signatures, (b) the conformlty to fte
originals of all documents submitted to us as copies, and (c) the truth, accuracy and completeness ofthe information, representations and warranties contained
in the records, documents, agreements, instruments and certificates we have reviewed.
For purposes of the opinions expressed below, we also assume that (a) the Registration Statement, and any amendments or supplements thereto
(including any necessary post-effective amendments), shall have become effective under the Securities Act, (b) the Company and the Trustee shall have
complied with the terms and conditions of the Mortgage regarding the creation, authentication and delivery of any supplemental indenture to the Mortgage,
(c) a Prospectus Supplement shall have been prepared and filed with the Commission describing the Securities offered thereby, (d) all Securities shall be
issued and sold in compliance with applicable federal, state and foreign securities laws and in the manner stated in the Registation Statement and the
appropriate Prospectus Supplement and (e) the Mortgage has been duly authorized executed and delivered by the Company and the Trustee.
Based on and subject to the foregoing and the other assumptions, exclusions and qualifications in this letter, we are ofthe opinion that when (a) the
Securities have been duly authorized @) the final terms ofthe Securities have been duly established and approved, and (c) the Securities have been duly
executed by the Company and authenticated by the Trustee in accordance with the Mortgage and delivered to and paid for by the purchasers thereofas
contemplated by the Registration Statement and the appropriate Prospectus Supplement, the Securities will constitute valid and legally binding obligations of
the Company.
The opinions expressed above are subject to the following exclusions and qualifications:
a. Our opinions are as ofthe date hereofand we have no responsibility to update this opinion for events and circumstances occurring
after the date hereofor as to facts relating to prior events that are subsequently brought to
our attention. This opinion is limited to the laws, including the mles and regulations, as in effect on the date hereof. and we disavow any
undertaking to advise you ofany changes in law.
b. We express no opinion as to enforceability ofany right or obligation to the extent such right or obligation is subject to and limited by
(i) the effect ofbankruptcy, insolvency, reorganization, receivership, conservatorship, arrangement, moratorium, Aaudulent transfer or other laws affecting or
relating to the rights ofcreditors generally, (ii) rules goveming the availability ofspecific performance, injunctive reliefor other equitable remedies and
general principles ofequity, regardless ofwhether arising prior to, or after, the date hereofor considered in a proceeding in equity or at law, or (iii) the effect
offederal and state securities laws and principles ofpublic policy on the rights ofindemnity and contibution.
c. We do not express any opinions herein concerning any laws other than the laws in their current forms of the State of Oregon, the State
ofNew York and the federal securities laws ofthe United States of Americ4 and we express no opinion with respect to the laws of any other jurisdiction and
expressly disclaim responsibility for advising you as to the effect, if any, that the laws of any other jurisdiction may have on the opinions set forth herein.
We consent to the filing of this opinion as an exhibit to the Registation Statement and any amendments thereto, including any and all post-effective
amendments, and to the reference to our firm in the Prospectus under the caption "Legal Matters." In giving such consent, we do not thereby admit that we are
in the category ofpersons whose consent is required under Section 7 ofthe Securities Act or related Rules.
Very tuly yours,
/s/ PERKINS COIE LLP
PERKINS COIE LLP
EXHIBIT 15.I
September 25, 2020
To the Board ofDirectors and Shareholders of
PacifiCorp
Portland, Oregon
We are aware that our reports dated May l, 2020 and August 7,2020, on our review of interim financial infonnation of PacifiCorp appearing in PacifiCorp's
Quarterly Reports on Fonn l0-Q for the quarters ended March 31,2020 and June 30, 2020, respectively, are incorporated by reference in rhis Registation
Statement.
/s/ Deloitte & Touche LLP
Portland Oregon
EXHIBIT 23.1
CONSENT OF INDEPENITENT REGISTERED PUBLIC ACCOUNTING T'IRM
We consent to the incorporation by reference in this Registation Statement on Form S-3 ofour report dated February 21, 2020, relating to the consolidated
financial statements of iacifiCory and subsidiaries appearing in the Annual Report on Form I 0-K of PacifiCorp for the year ended December 3 I , 2020 . W e
also consent to the reference to us under the heading "Experts" in such Registation Statemeot.
/s/ Deloitte & Touche LLP
Septernber 25, 2020
EXHIBIT 25.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.20549
FORMT-I
STATEMENT OF ELIGIBILITY
UNDER TTIE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CTMCKIF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
sECrroN 3os(bx2) l___l
TIIE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.
(Exact name of trustee as specified in its charter)
(Jurisdiction of incorporation
if not a U.S. national bank)
95-3571 558
(I.R.S. employer
identification no.)
400 South Hope Street
Suite 500
Los Angeles, California
(Address of principal executive offices)
90071
(Zip code)
PACIFICORP
(Exact name of obligor as specified in its charter)
Oregon
(State or otherjurisdiction of
incorporation or organization)
93-0246090
(I.R.S. employer
identification no.)
825 N.E. Multnomah Street
Portland, Oregon
(Address of principal executive offices)
97232
(Zip code)
First Mortgage Bonds
(Title of the indenture securities)
I General information. F'urnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it is subject.
Name Address
Comptroller of the Currency
United States Department of the Treasury
Washington, DC202l9
Federal Reserve Bank San Francisco, CA 94105
Federal Deposit Insurance Corporation Washington, DC20429
2.
(b) Whether it is authorized to exercise corporate trust powers.
Yes,
Affiliations with Obligor.
Ifthe obligor is an afliliate ofthe trustee, describe each such affiliation.
None.
List of Exhibits.16.
Exhibits identified in parentheses below, on lile with the Commission, are incorporated herein by reference as an
exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of1939 (the "Act").
A copy of the articles of association of The Bank of New York Mellon Trust Company, N.A., formerly known as
The Bank of New York Trust Company, N.A. (Exhibit I to Form T-1 filed with Registration Statement No. 333-
121948 and Exhibit I to Form T-l filed with Registration Statement No. 333-152875).
2 A copy of certificate of authority of the trustee to commence business. (Exhibit 2 to Form T-1 filed with Regishation
Statement No . 333-121948).
J A copy of the authorization of the trustee to exercise corporate trust powers (Exhibit 3 to Form T-1 filed with
Registration Statement No . 333-1 5287 5).
4.
6.
7.
A copy of the existing by-laws of the trustee (Exhibit 4 to Form T-l filed with Registration Statement No. 333-
229762).
The consent of the trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-l filed with Registration
Statement No . 333 -l 5287 5).
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.
SIGNATT'RE
Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon Trust Companyo N.A., a banking
association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Los Angeles, and State of Californi4 on the
I 8th day of September, 2020.
TI{E BANK OF NEW YORK MELLON
TRUST COMPANY, N.A,
By:/s/ Maniari PurkavasthaName: ManjariPurkayasthaTitle: Vice President
-4-
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORKMELLON TRUST COMPANY, N.A.
of400 South Hope Street, Suite 500, Los Angeles, CA 90071
At the close ofbusiness June 30, 2020, published in accordance with Federal regulatory authority instructions.
Dollar amounts
in thousands
ASSETS
Cash and balances due from
depository institutions :
Noninterest-bearing balances
and currency and coin
Interest-bearing balances
Securities:
Held-to-maturity securities
Available-for-sale securities
Equity securities with readily determinable fair values not held for trading
Federal funds sold and securities
purchased under agreements to resell:
Federal funds sold in domestic offtces
Securities purchased under agreements to resell
Loans and lease financing receivables:
Loans and leases held for sale
Loans and leases,
held for investment 0
LESS: Allowance for loan and
lease losses 0
Loans and leases held for investrnent,
net of allowance 0
Trading assets
Premises and fixed assets (including capitalized leases)
Other real estate owned
Invesfinents in unconsolidated subsidiaries and associated companies
Direct and indirect investrnents in real estate ventures
Intangible assets
Other assets
t,667
325,776
0
148,395
0
0
0
0
0
20,997
856,3
0
0
0
l3
100.715
Total assets $1.453.863
LIABILITIES
Deposits:
In domestic offices
Noninterest-bearing
Interest-bearing
Not applicable
Federal funds purchased and securities
sold under agreements to repurchase:
Federal funds purchased
Securities sold under agreements to repurchase
Trading liabilities
Other borrowed money:
(includes mortgage indebtedness and obligations under capitalized leases)
Not applicable
Not applicable
Subordinated notes and debentures
Other liabilities
Total liabilities
Not applicable
r,659
1,659
0
0
0
0
0
0
258,356
260,015
EOUITY CAPITAL
Perpetual preferred stock and related surplus
Common stock
Surplus (exclude all surplus related to prefened stock)
Not available
Retained eamings
Accumulated other comprehensive income
Other equity capital components
Not available
Total bank equity capital
Noncontrolling (minority) interests in consolidated subsidiaries
Total equity capital
Total liabilities and equity capital
0
1,000
324,174
866,668
2,006
0
r,193,848
0
1.193.848
1.453.863
I, Matthew J. McNulty, CFO of the above-named bank do hereby declare that the Reports of Condition and Income (including the
supporting schedules) for this report date have been prepared in conformance with the instructions issued by the appropriate Federal regulatory
authority and are true to the best of my knowledge and belief.
Matthew J. McNulty ) CFO
We, the undersigned directors (trustees), attest to the correctness ofthe Report ofCondition (including the supporting schedules) for
this report date and declare that it has been examined by us and to the best of our knowledge and beliefhas been prepared in conformance with
the instructions issued by the appropriate Federal regulatory authority and is true and correct.
Antonio I. Portuondo, President )
Michael P. Scott, Managing Director )
Kevin P. Caffrey, Managing Director )
Directors (Trustees)
2
NOT APPLICABLE
Exhibit H
TOTAL
GORPORAT!ON
PROPOSED
FINAI{CING
TOTAL
PROFOR}IA
RETAINED EARNINGS Q1 5. 2'I 5.1. 216. 216,'II
BALANCEAT BEGINNING OF PERIOD 3.432.150.719 3.432.150.719
NET INCOME 765.165.131 8.922.62E 775.0E7.959
EXCLUDE EOUITY IN EARNINGS OF SUBSID]ARIES (8.310.174)(E,310,174)
ADJUSTMENTTO RETAINED EARNINGS -TRANSFERS FROM 216.1 61.252.'.t49 6'.1.252,149
SUBTOTAL 4.251.257.825 8.922.828 4.260.180.653
DIVIDENDS DECIIRED
PREFERRED STOCK 161,902 161.902
COMMON STOCK
BATANCEAT END OF PERIOD 4.251.095.923 8.922.E28 4.260.018,751
EXHIB]T H
PACIFICORP
PRO FORUA UNGONSOLIDATED STATETIENT OF RETAINED EARNINGS
I2 MONTHS ENDED JUNE 30, 2O2O
SEE PACIFICORP'S 2019 FERC FORM NO. 1 AND Q2.2O2O FERC FORM }Q FOR THE NOTES TO THE FINANCIAL STATEMENTS
EXHIBIT H
PAGE 1 OF 1
Exhibit I
Exhibit I
Limitations on Issuance of First Mortgage Bonds
and Preferred Stock
June 30,2020
Morteaee
Bonds may be issued under the Company's Mortgage on the basis of: (l) Class
"A" Bonds delivered to the Trustee under the Mortgage; (2) 70Yo of qtalified Property
Additions after adjustnents to offset retirements; (3) retirement of Bonds or certain prior
lien bonds; and/or (4) deposits of cash. With certain exceptions in the case of (1) and (3)
above, the issuance of Bonds under the Mortgage is subject to adjusted net earnings of
the Company for twelve out of the preceding fifteen months, before income taxes, being
at least twice the annual interest requirements on all Bonds at the time outstanding,
including any new issue, all outstanding Class "A" Bonds held other than by the Trustee
or by the Company, and any other indebtedness secured by a lien prior to the Lien of the
Mortgage.
Under above mortgage coverage tests, the Company estimates that it could have
issued an additional $10.3 billion principal amount of Bonds under the Mortgage as of
June 30,2020.
Preferred Stock
Not applicable to proposed issuance.
EXHIBIT I