EXHIBIT (4)(d)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
[CONFORMED COPY]
PACIFICORP
(AN OREGON CORPORATION)
TO
CHEMICAL BANK
(A NEW YORK CORPORATION)
AS TRUSTEE UNDER PACIFIC POWER &
LIGHT COMPANY'S MORTGAGE AND
DEED OF TRUST, DATED AS OF
JULY 1, 1947
----------------------
FIFTY-FOURTH SUPPLEMENTAL INDENTURE
DATED AS OF DECEMBER 1, 1995
SUPPLEMENTAL TO PACIFIC POWER & LIGHT COMPANY'S
MORTGAGE AND DEED OF TRUST
DATED AS OF JULY 1, 1947
----------------------
THIS INSTRUMENT GRANTS A SECURITY INTEREST BY A TRANSMITTING UTILITY
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
FIFTY-FOURTH SUPPLEMENTAL INDENTURE
THIS INDENTURE, dated as of the 1st day of December, 1995
(hereinafter referred to as the "Fifty-fourth Supplemental Indenture") is made
as a supplement to that certain Mortgage and Deed of Trust, dated as of July 1,
1947, as heretofore amended and supplemented (the "Mortgage"), executed and
delivered by Pacific Power & Light Company, a Maine corporation that heretofore
changed its name to PacifiCorp (the "Original Mortgagor").
This Fifty-fourth Supplemental Indenture is entered into by and
between PACIFICORP, a corporation of the State of Oregon into which the Original
Mortgagor heretofore was merged, whose address is 000 XX Xxxxxxxxx, Xxxxxxxx,
Xxxxxx 00000 (the "Company") and CHEMICAL BANK, a New York corporation whose
address is 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Corporate
Trustee" or "Trustee").
WHEREAS, the Mortgage (including all indentures supplemental
thereto) was recorded in the official records of the States of California,
Idaho, Montana, Oregon, Utah, Washington and Wyoming and various counties within
said states in which this Fifty-fourth Supplemental Indenture is to be recorded,
and was filed as a financing statement in accordance with the Uniform Commercial
Code of each of said states; and
WHEREAS, the Original Mortgagor executed, delivered, recorded and
filed its Supplemental Indentures as follows:
Dated as of
-----------
First April 1, 1950
Second March 1, 1952
Third September 1, 1952
Fourth April 1, 1954
Fifth August 1, 1954
Sixth October 1, 1955
Seventh January 1, 1957
Eighth September 1, 1957
Ninth January 1, 1958
Tenth July 1, 1958
Eleventh September 1, 1960
Twelfth June 22, 1961
Thirteenth April 1, 1962
Fourteenth December 1, 1962
Fifteenth April 1, 1963
Dated as of
-----------
Sixteenth August 1, 1963
Seventeenth October 1, 1964
Eighteenth October 1, 1965
Nineteenth December 15, 1967
Twentieth May 1, 1969
Twenty-first November 1, 1969
Twenty-second July 1, 1970
Twenty-third February 1, 1971
Twenty-fourth October 1, 1971
Twenty-fifth October 1, 1972
Twenty-sixth January 1, 1974
Twenty-seventh October 1, 1974
Twenty-eighth May 1, 1975
Twenty-ninth January 1, 1976
Thirtieth July 1, 1976
Thirty-first December 1, 1976
Thirty-second January 1, 1977
Thirty-third November 1, 1977
Thirty-fourth April 1, 1979
Thirty-fifth October 1, 1980
Thirty-sixth March 1, 1981
Thirty-seventh October 15, 1981
Thirty-eighth August 1, 1982
Thirty-ninth April 1, 1983
Fortieth March 1, 1986
Forty-first July 1, 1986
Forty-second July 1, 1987;
and
WHEREAS, the Original Mortgagor has heretofore issued, in
accordance with the provisions of the Mortgage, forty-seven series of bonds
entitled and designated First Mortgage Bonds, none of which bonds are
Outstanding as of the date hereof;
and
WHEREAS, the Original Mortgagor entered into a Reorganization
Agreement and Plan of Merger dated August 12, 1987, as amended, pursuant to
which, among other things, the Original Mortgagor was merged into the Company as
of January 9, 1989, upon such terms as fully to preserve and in no respect to
impair the Lien or security
2
of the Mortgage or any of the rights or powers of the trustees or the
bondholders thereunder; and
WHEREAS, pursuant to Article XVI of the Mortgage, the Company
executed, delivered, recorded and filed its Forty-third Supplemental Indenture
dated as of January 9, 1989, whereby the Company assumed and agreed to pay, duly
and punctually, the principal of and interest on the bonds issued under the
Mortgage, in accordance with the provisions of said bonds and coupons and the
Mortgage, and agreed to perform and fulfill all the covenants and conditions of
the Mortgage to be kept or performed by the Original Mortgagor, and whereby
Bankers Trust Company was appointed Corporate Trustee in succession to Xxxxxx
Guaranty Trust Company of New York, resigned, under the Mortgage, and Xxxxx X.
Xxxxxx was appointed Co-Trustee in succession to R.E. Xxxxxxx, resigned, under
the Mortgage; and
WHEREAS, the Company executed, delivered, recorded and filed
additional Supplemental Indentures to the Mortgage as follows:
Dated as of
-----------
Forty-fourth March 31, 1989
Forty-fifth December 29, 1989
Forty-sixth March 31, 1991;
and
WHEREAS, pursuant to said Forty-sixth Supplemental Indenture,
Xxxxxx Guaranty Trust Company of New York was appointed Corporate Trustee in
succession to Bankers Trust Company, resigned, under the Mortgage and Xxxxx X.
Xxxxxx resigned as Co-Trustee under the Mortgage and all the right, title and
powers of the Co-Trustee devolved upon the Corporate Trustee and its successors
alone until such time as a successor to the Co-Trustee shall be appointed; and
WHEREAS, the Company executed, delivered, recorded and filed
additional Supplemental Indentures to the Mortgage as follows:
Dated as of
-----------
Forty-seventh December 31, 1991
Forty-eighth March 15, 1992
Forty-ninth July 31, 1992
Fiftieth March 15, 1993
Fifty-first November 1,1993
Fifty-second June 1, 1994
3
Fifty-third August 1, 1994;
and
WHEREAS, pursuant to said Fifty-third Supplemental Indenture,
Chemical Bank was appointed Corporate Trustee in succession to Xxxxxx Guaranty
Trust Company of New York, resigned, under the Mortgage; and
WHEREAS, the Company has heretofore issued, in accordance with
the provisions of the Mortgage, bonds entitled and designated First Mortgage
Bonds, of the Series and in the principal amounts as follows:
Aggregate Aggregate
Principal Amount Principal Amount
Series Due Date Issued Outstanding
------ -------- ---------------- -----------------
48. Forty-eighth--Medium- various $125,000,000 $ 120,000,000
Term Notes, Series A
49. Forty-ninth--Medium- various 100,000,000 80,000,000
Term Notes, Series B
50. Fiftieth--Medium-Term various 150,000,000 140,937,357
Notes, Series C
51. Fifty-first--Medium-Term various 125,000,000 125,000,000
Notes, Series D
52. Fifty-second--C-U various 125,216,000 92,644,000
53. Fifty-third--Medium-Term various 250,000,000 250,000,000
Notes, Series E
54. Fifty-fourth--6 3/4% 4/1/2005 75,000,000 75,000,000
55. Fifty-fifth--Medium-Term various 250,000,000 250,000,000
Notes, Series F
56. Fifty-sixth--E-L various 35,600,000 35,600,000
57. Fifty-seventh Medium-Term various 250,000,000 250,000,000
Notes, Series G
58. Fifty-eighth Series-1994-1 various 108,235,000 108,235,000;
and
WHEREAS, Section 8 of the Mortgage provides that the form of each
series of bonds (other than the First Series) issued thereunder and of the
coupons to be attached to the coupon bonds, if any, of such series shall be
established by Resolution of the Board of Directors of the Company; that the
form of such series, as established by said Board of Directors, shall specify
the descriptive title of the bonds and various other terms thereof; and that
such series may also contain such provisions not inconsistent with the
provisions of
4
the Mortgage, as supplemented, as the Board of Directors may, in its discretion,
cause to be inserted therein expressing or referring to the terms and conditions
upon which such bonds are to be issued and/or secured under the Mortgage; and
WHEREAS, Section 120 of the Mortgage provides, among other
things, that any power, privilege or right expressly or impliedly reserved to or
in any way conferred upon the Company by any provision of the Mortgage, whether
such power, privilege or right is in any way restricted or is unrestricted, may
(to the extent permitted by law) be in whole or in part waived or surrendered or
subjected to any restriction if at the time unrestricted or to additional
restriction if already restricted, and the Company may enter into any further
covenants, limitations or restrictions for the benefit of any one or more series
of bonds issued thereunder and provide that a breach thereof shall be equivalent
to a default under the Mortgage, or the Company may cure any ambiguity contained
therein, or in any supplemental indenture, or may (in lieu of establishment by
Resolution as provided in Section 8 of the Mortgage) establish the terms and
provisions of any series of bonds other than the First Series, by an instrument
in writing executed and acknowledged by the Company in such manner as would be
necessary to entitle a conveyance of real estate to record in all of the states
in which any property at the time subject to the Lien of the Mortgage shall be
situated; and the Trustee is further authorized by said Section 120 to join with
the Company in the execution of such instrument or instruments, and such
instrument, executed and acknowledged as aforesaid, shall be delivered to the
Trustee, and thereupon any modification of the provisions of the Mortgage
therein set forth, authorized by said Section 120, shall be binding upon the
parties to the Mortgage, their successors and assigns, and the holders of the
bonds and coupons thereby secured; provided, however, anything therein contained
to the contrary not withstanding, said Section 120 shall not be construed to
permit any act, waiver, surrender or restriction adversely affecting any bonds
then Outstanding under the Mortgage; and
WHEREAS, in Section 42 of the Mortgage the Original Mortgagor
covenanted that it would execute and deliver such supplemental indenture or
indentures and such further instruments and do such further acts as might be
necessary or proper to carry out more effectually the purposes of the Mortgage
and to make subject to the Lien of the Mortgage any property thereafter
acquired, made or constructed and intended to be subject to the Lien thereof,
and to transfer to any new trustee or trustees or co-trustee or co-trustees, the
estates, powers, instruments or funds held in trust thereunder; and
WHEREAS, the Company now desires to create three new series of
bonds and (pursuant to the provisions of Section 120 of the Mortgage) to add to
its covenants and agreements contained in the Mortgage, as heretofore
supplemented, certain other covenants and agreements to be observed by it; and
5
WHEREAS, the execution and delivery by the Company of this Fifty-
fourth Supplemental Indenture has been duly authorized by the Board of Directors
of the Company by appropriate Resolutions;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
ARTICLE I
GRANTING CLAUSES
The Company, in consideration of the premises and of One Dollar
($1) to it duly paid by the Trustee at or before the ensealing and delivery of
these presents, the receipt whereof is hereby acknowledged, and in further
assurance of the estate, title and rights of the Trustee under the Mortgage and
in order further to secure the payment of both the principal of and interest and
premium, if any, on the bonds from time to time issued under the Mortgage,
according to their tenor and effect, and the performance of all the provisions
of the Mortgage (including any instruments supplemental thereto and any
modification made as in the Mortgage provided) and of such bonds, and to confirm
the Lien of the Mortgage on certain after-acquired property, hereby grants,
bargains, sells, releases, conveys, assigns, transfers, mortgages, pledges, sets
over and confirms (subject, however, to Excepted Encumbrances as defined in
Section 6 of the Mortgage) unto Chemical Bank as Trustee under the Mortgage, and
to its successor or successors in said trust, and to said Trustee and its
successors and assigns forever, all property, real, personal and mixed, owned by
the Original Mortgagor as of the date of the Mortgage and acquired by the
Original Mortgagor or the Company after the date of the Mortgage, subject to the
provisions of subsection (I) of Section 87 of the Mortgage and Section 2.02 of
the Forty-third Supplemental Indenture thereto, of the kind or nature
specifically mentioned in Article XXI of the Mortgage or of any other kind or
nature (except any herein or in the Mortgage expressly excepted), now owned, or,
subject to the provisions of subsection (I) of Section 87 of the Mortgage and
Section 2.02 of the Forty-third Supplemental Indenture thereto, hereafter
acquired by the Company (by purchase, consolidation, merger, donation,
construction, erection or in any other way) and wheresoever situated, including
(without in anywise limiting or impairing by the enumeration of the same the
scope and intent of the foregoing) all lands, power sites, flowage rights, water
rights, water locations, water appropriations, ditches, flumes, reservoirs,
reservoir sites, canals, raceways, dams, dam sites, aqueducts, and all other
rights or means for appropriating, conveying, storing and supplying water; all
rights of way and roads; all plants for the generation of electricity by steam,
water and/or other power; all power houses, gas plants, street lighting systems,
standards and other equipment incidental thereto, telephone, radio, television
and air conditioning systems and equipment incidental thereto, water works,
water systems, steam
6
heat and hot water plants, substations, lines, service and supply systems,
bridges, culverts, tracks, ice or refrigeration plants and equipment, offices,
buildings and other structures and the equipment thereof; all machinery,
engines, boilers, dynamos, electric, gas, and other machines, regulators,
meters, transformers, generators, motors, electrical, gas and mechanical
appliances, conduits, cables, water, steam heat, gas or other pipes, gas mains
and pipes, service pipes, fittings, valves and connections, pole and
transmission lines, wires, cables, tools, implements, apparatus, furniture and
chattels; all franchises, consents or permits; all lines for the transmission
and distribution of electric current, gas, steam heat or water for any purpose,
including towers, poles, wires, cables, pipes, conduits, ducts and all apparatus
for use in connection therewith; all real estate, lands, easements, servitudes,
licenses, permits, franchises, privileges, rights of way and other rights in or
relating to public or private property, real or personal, or the occupancy of
such property and (except as herein or in the Mortgage expressly excepted) all
right, title and interest the Company may now have or may hereafter acquire in
and to any and all property of any kind or nature wheresoever situated;
And the Company does hereby confirm that the Company will not
cause or consent to a partition, either voluntarily or through legal
proceedings, of property subject to the Lien of the Mortgage whether herein
described or heretofore or hereafter acquired, in which its ownership shall be
as a tenant in common, except as permitted by and in conformity with the
provisions of the Mortgage and particularly of Article XI thereof;
TOGETHER WITH and all and singular the tenements, hereditaments,
prescriptions, servitudes and appurtenances belonging or in anywise appertaining
to the aforementioned property or any part thereof, with the reversion and
reversions, remainder and remainders and (subject to the provisions of Section
57 of the Mortgage) the tolls, rents, revenues, issues, earnings, income,
product and profits thereof, and all the estate, right, title and interest and
claim whatsoever, at law as well as in equity, which the Company now has or
(subject to the provisions of subsection (I) of Section 87 of the Mortgage and
Section 2.02 of the Forty-third Supplemental Indenture thereto) may hereafter
acquire in and to the aforementioned property and franchises and every part and
parcel thereof.
IT IS HEREBY AGREED by the Company that, subject to the
provisions of subsection (I) of Section 87 of the Mortgage and Section 2.02 of
the Forty-third Supplemental Indenture thereto, all the property, rights and
franchises acquired by the Company (by purchase, consolidation, merger,
donation, construction, erection or in any other way) after the date hereof,
except any herein or in the Mortgage expressly excepted, shall be and are as
fully granted and conveyed hereby and by the Mortgage, and as fully embraced
within the Lien of the Mortgage, as if such property, rights and franchises were
7
now owned by the Company and were specifically described herein or in the
Mortgage and conveyed hereby or thereby;
Provided that the following are not and are not intended to be
now or hereafter granted, bargained, sold, released, conveyed, assigned,
transferred, mortgaged, pledged, set over or confirmed hereunder and are hereby
expressly excepted from the Lien and operation of the Mortgage, viz.: (1) cash,
shares of stock, bonds, notes and other obligations and other securities not
hereafter specifically pledged, paid, deposited, delivered or held under the
Mortgage or covenanted so to be; (2) merchandise, equipment, apparatus,
materials or supplies held for the purpose of sale or other disposition in the
usual course of business; fuel, oil and similar materials and supplies
consumable in the operation of any of the properties of the Company; all
aircraft, tractors, rolling stock, trolley coaches, buses, motor coaches,
automobiles, motor trucks, and other vehicles and materials and supplies held
for the purpose of repairing or replacing (in whole or part) any of the same;
(3) bills, notes and accounts receivable, judgments, demands and choses in
action, and all contracts, leases and operating agreements not specifically
pledged under the Mortgage or covenanted so to be; the Company's contractual
rights or other interest in or with respect to tires not owned by the Company;
(4) the last day of the term of any lease or leasehold which may be or become
subject to the Lien of the Mortgage; (5) electric energy, gas, steam, water, ice
and other materials or products generated, manufactured, stored, produced,
purchased or acquired by the Company for sale, distribution or use in the
ordinary course of its business; all timber, minerals, mineral rights and
royalties and all Natural Gas and Oil Production Property, as defined in Section
4 of the Mortgage; and (6) the Company's franchise to be a corporation;
provided, however, that the property and rights expressly excepted from the Lien
and operation of the Mortgage in the above subdivisions (2) and (3) shall (to
the extent permitted by law) cease to be so excepted in the event and as of the
date that the Trustee or a receiver or trustee shall enter upon and take
possession of the Mortgaged and Pledged Property in the manner provided in
Article XIII of the Mortgage by reason of the occurrence of a Default as defined
in Section 65 thereof.
TO HAVE AND TO HOLD all such properties, real, personal and
mixed, granted, bargained, sold, released, conveyed, assigned, transferred,
mortgaged, pledged, set over or confirmed by the Company as aforesaid, or
intended so to be, unto Chemical Bank as Trustee, and its successors and assigns
forever;
IN TRUST NEVERTHELESS, for the same purposes and upon the same
terms, trusts and conditions and subject to and with the same provisions and
covenants as are set forth in the Mortgage, this Fifty-fourth Supplemental
Indenture being supplemental to the Mortgage;
8
AND IT IS HEREBY COVENANTED by the Company that all the terms,
conditions, provisos, covenants and provisions contained in the Mortgage shall
affect and apply to the property hereinbefore described and conveyed, and to the
estates, rights, obligations and duties of the Company and the Trustee under the
Mortgage and the beneficiaries of the trust with respect to said property, and
to the Trustee under the Mortgage and its successors in the trust, in the same
manner and with the same effect as if the said property had been owned by the
Company at the time of the execution of the Mortgage, and had been specifically
and at length described in and conveyed to said Trustee by the Mortgage as a
part of the property therein stated to be conveyed.
ARTICLE II
FIFTY-NINTH SERIES OF BONDS
SECTION 2.01. There shall be a series of bonds designated "First
Mortgage Bonds, Adjustable Rate Replacement Series" (herein sometimes referred
to as the "Fifty-ninth Series"), each of which shall also bear the descriptive
title First Mortgage Bond, and the form thereof, which shall be established by
Resolution of the Board of Directors of the Company, shall contain suitable
provisions with respect to the matters hereinafter in this Section specified.
Bonds of the Fifty-ninth Series shall mature on the maturity date, and in
principal amounts corresponding to the principal amounts, of first mortgage and
collateral trust bonds designated "Adjustable Rate Replacement Series," issued
under the Company's Mortgage and Deed of Trust, dated as of January 9, 1989, as
amended and supplemented, to Chemical Bank, as trustee, on the basis of such
bonds of the Fifty-ninth Series. Bonds of the Fifty-ninth Series shall be
issued as fully registered bonds in the denomination of One Thousand Dollars
and, at the option of the Company, in any multiple or multiples of One Thousand
Dollars (the exercise of such option to be evidenced by the execution and
delivery thereof); they shall bear no interest; and the principal of each such
bond shall be payable at the office or agency of the Company in the Borough of
Manhattan, The City of New York, in such coin or currency of the United States
of America as at the time of payment is legal tender for public and private
debts. Bonds of the Fifty-ninth Series shall be dated as in Section 10 of the
Mortgage provided.
(I) Bonds of the Fifty-ninth Series shall be redeemable either at the
option of the Company or pursuant to the requirements of the Mortgage
(including, among other things, the provisions of Sections 39, 64 or 87 of the
Mortgage or with the Proceeds of Released Property).
(II) At the option of the registered owner, any bonds of the Fifty-
ninth Series, upon surrender thereof for cancellation at the office or agency of
the Company in the
9
Borough of Manhattan, The City of New York, shall be exchangeable for a like
aggregate principal amount of bonds of the same series of other authorized
denominations.
Bonds of the Fifty-ninth Series shall be transferable (subject to
the provisions of Section 12 of the Mortgage and to the limitations set forth in
this Fifty-fourth Supplemental Indenture), upon the surrender thereof for
cancellation, together with a written instrument of transfer in form approved by
the registrar duly executed by the registered owner or by his, her or its duly
authorized attorney, at the office or agency of the Company in the Borough of
Manhattan, The City of New York. Upon any transfer or exchange of bonds of the
Fifty-ninth Series, the Company may make a charge therefor sufficient to
reimburse it for any tax or taxes or other governmental charge, as provided in
Section 12 of the Mortgage, but the Company hereby waives any right to make a
charge in addition thereto for any exchange or transfer of bonds of the Fifty-
ninth Series.
The Trustee may conclusively presume that the obligation of the
Company to pay the principal of the bonds of the Fifty-ninth Series as the same
shall become due and payable shall have been fully satisfied and discharged
unless and until it shall have received a written notice from the trustee under
the Company's Mortgage and Deed of Trust, dated as of January 9, 1989, as
amended and supplemented, to Chemical Bank, as trustee, signed by the President,
a Vice President, an Assistant Vice President or a Trust Officer of such
trustee, stating that interest or principal due and payable on any bonds issued
under said Mortgage and Deed of Trust has not been fully paid and specifying the
amount of funds required to make such payment.
Bonds of the Fifty-ninth Series shall be initially issued in the
name of Chemical Bank, as trustee under the Company's Mortgage and Deed of
Trust, dated as of January 9, 1989, as amended and supplemented, and shall not
be transferable, except to any successor trustee under said Mortgage and Deed of
Trust.
After the execution and delivery of this Fifty-fourth
Supplemental Indenture and upon compliance with the applicable provisions of the
Mortgage, as supplemented, it is contemplated that there shall be issued bonds
of the Fifty-ninth Series in an aggregate principal amount not to exceed Six
Million Six Hundred Seventeen Thousand Dollars ($6,617,000).
10
ARTICLE III
SIXTIETH SERIES OF BONDS
SECTION 3.01. There shall be a series of bonds designated "First
Mortgage Bonds, 9 3/8% Replacement Series Due 1997" (herein sometimes referred
to as the "Sixtieth Series"), each of which shall also bear the descriptive
title First Mortgage Bond, and the form thereof, which shall be established by
Resolution of the Board of Directors of the Company, shall contain suitable
provisions with respect to the matters hereinafter in this Section specified.
Bonds of the Sixtieth Series shall mature on the maturity date, and in principal
amounts corresponding to the principal amounts, of first mortgage and collateral
trust bonds designated "9 3/8% Replacement Series Due 1997," issued under the
Company's Mortgage and Deed of Trust, dated as of January 9, 1989, as amended
and supplemented, to Chemical Bank, as trustee, on the basis of such bonds of
the Sixtieth Series. Bonds of the Sixtieth Series shall be issued as fully
registered bonds in the denomination of One Thousand Dollars and, at the option
of the Company, in any multiple or multiples of One Thousand Dollars (the
exercise of such option to be evidenced by the execution and delivery thereof);
they shall bear no interest; and the principal of each such bond shall be
payable at the office or agency of the Company in the Borough of Manhattan, The
City of New York, in such coin or currency of the United States of America as at
the time of payment is legal tender for public and private debts. Bonds of the
Sixtieth Series shall be dated as in Section 10 of the Mortgage provided.
(I) Bonds of the Sixtieth Series shall be redeemable either at the
option of the Company or pursuant to the requirements of the Mortgage
(including, among other things, the provisions of Sections 39, 64 or 87 of the
Mortgage or with the Proceeds of Released Property).
(II) At the option of the registered owner, any bonds of the Sixtieth
Series, upon surrender thereof for cancellation at the office or agency of the
Company in the Borough of Manhattan, The City of New York, shall be exchangeable
for a like aggregate principal amount of bonds of the same series of other
authorized denominations.
Bonds of the Sixtieth Series shall be transferable (subject to
the provisions of Section 12 of the Mortgage and to the limitations set forth in
this Fifty-fourth Supplemental Indenture), upon the surrender thereof for
cancellation, together with a written instrument of transfer in form approved by
the registrar duly executed by the registered owner or by his duly authorized
attorney, at the office or agency of the Company in the Borough of Manhattan,
The City of New York. Upon any transfer or exchange of bonds of the Sixtieth
Series, the Company may make a charge therefor sufficient to reimburse it for
any tax or taxes or other governmental charge, as provided in Section 12 of the
Mortgage, but the
11
Company hereby waives any right to make a charge in addition thereto for any
exchange or transfer of bonds of the Sixtieth Series.
The Trustee may conclusively presume that the obligation of the
Company to pay the principal of the bonds of the Sixtieth Series as the same
shall become due and payable shall have been fully satisfied and discharged
unless and until it shall have received a written notice from the trustee under
the Company's Mortgage and Deed of Trust, dated as of January 9, 1989, as
amended and supplemented, to Chemical Bank, as trustee, signed by the President,
a Vice President, an Assistant Vice President or a Trust Officer of such
trustee, stating that interest or principal due and payable on any bonds issued
under said Mortgage and Deed of Trust has not been fully paid and specifying the
amount of funds required to make such payment.
Bonds of the Sixtieth Series shall be initially issued in the
name of Chemical Bank, as trustee under the Company's Mortgage and Deed of
Trust, dated as of January 9, 1989, as amended and supplemented, and shall not
be transferable, except to any successor trustee under said Mortgage and Deed of
Trust.
After the execution and delivery of this Fifty-fourth
Supplemental Indenture and upon compliance with the applicable provisions of the
Mortgage, as supplemented, it is contemplated that there shall be issued bonds
of the Sixtieth Series in an aggregate principal amount not to exceed Twenty-
Five Million Dollars ($25,000,000).
ARTICLE IV
SIXTY-FIRST SERIES OF BONDS
SECTION 4.01. There shall be a series of bonds designated "First
Mortgage Bonds, Bond Credit Series Bonds" (herein sometimes referred to as the
"Sixty-first Series"), each of which shall also bear the descriptive title First
Mortgage Bond, and the form thereof, which shall be established by Resolution of
the Board of Directors of the Company, shall contain suitable provisions with
respect to the matters hereinafter in this Section specified. Bonds of the
Sixty-first Series shall mature on the maturity date, and in principal amounts
corresponding to the principal amounts, of first mortgage and collateral trust
bonds designated "Bond Credit Series Bonds," issued under the Company's Mortgage
and Deed of Trust, dated as of January 9, 1989, as amended and supplemented, to
Chemical Bank, as trustee, on the basis of such bonds of the Sixty-first Series.
Bonds of the Sixty-first Series shall be issued as fully registered bonds in the
denomination of One Thousand Dollars and, at the option of the Company, in any
multiple or multiples of One Thousand Dollars (the exercise of such option to be
evidenced by the execution and delivery thereof); they shall bear no interest;
and the principal of each such bond shall be payable at the office or agency
12
of the Company in the Borough of Manhattan, The City of New York, in such coin
or currency of the United States of America as at the time of payment is legal
tender for public and private debts. Bonds of the Sixty-first Series shall be
dated as in Section 10 of the Mortgage provided.
(I) Bonds of the Sixty-first Series shall be redeemable either at the
option of the Company or pursuant to the requirements of the Mortgage
(including, among other things, the provisions of Sections 39, 64 or 87 of the
Mortgage or with the Proceeds of Released Property).
(II) At the option of the registered owner, any bonds of the Sixty-
first Series, upon surrender thereof for cancellation at the office or agency of
the Company in the Borough of Manhattan, The City of New York, shall be
exchangeable for a like aggregate principal amount of bonds of the same series
of other authorized denominations.
Bonds of the Sixty-first Series shall be transferable (subject to
the provisions of Section 12 of the Mortgage and to the limitations set forth in
this Fifty-fourth Supplemental Indenture), upon the surrender thereof for
cancellation, together with a written instrument of transfer in form approved by
the registrar duly executed by the registered owner or by his duly authorized
attorney, at the office or agency of the Company in the Borough of Manhattan,
The City of New York. Upon any transfer or exchange of bonds of the Sixty-first
Series, the Company may make a charge therefor sufficient to reimburse it for
any tax or taxes or other governmental charge, as provided in Section 12 of the
Mortgage, but the Company hereby waives any right to make a charge in addition
thereto for any exchange or transfer of bonds of the Sixty-first Series.
The Trustee may conclusively presume that the obligation of the
Company to pay the principal of the bonds of the Sixty-first Series as the same
shall become due and payable shall have been fully satisfied and discharged
unless and until it shall have received a written notice from the trustee under
the Company's Mortgage and Deed of Trust, dated as of January 9, 1989, as
amended and supplemented, to Chemical Bank, as trustee, signed by the President,
a Vice President, an Assistant Vice President or a Trust Officer of such
trustee, stating that interest or principal due and payable on any bonds issued
under said Mortgage and Deed of Trust has not been fully paid and specifying the
amount of funds required to make such payment.
Bonds of the Sixty-first Series shall be initially issued in the
name of Chemical Bank, as trustee under the Company's Mortgage and Deed of
Trust, dated as of January 9, 1989, as amended and supplemented, and shall not
be transferable, except to any successor trustee under said Mortgage and Deed of
Trust.
13
After the execution and delivery of this Fifty-fourth
Supplemental Indenture and upon compliance with the applicable provisions of the
Mortgage, as supplemented, it is contemplated that there shall be issued bonds
of the Sixty-first Series in an aggregate principal amount not to exceed One
Hundred Fifteen Million Two Hundred Seventy-Three Thousand Five Hundred and
Thirty-Nine Dollars ($115,273,539).
ARTICLE V
THE COMPANY RESERVES THE RIGHT TO AMEND PROVISIONS
REGARDING PROPERTIES EXCEPTED FROM LIEN OF MORTGAGE
SECTION 5.01. The Company reserves the right, without any consent or
other action by holders of bonds of the Fifty-fourth Series, or any other series
of bonds subsequently created under the Mortgage (including the bonds of the
Fifty-ninth Series, the Sixtieth Series and the Sixty-First Series), to make
such amendments to the Mortgage, as heretofore amended and supplemented, as
shall be necessary in order to amend the first proviso to the granting clause of
the Mortgage, which proviso sets forth the properties excepted from the Lien of
the Mortgage, to add a new exception (7) which shall read as follows:
"(7) allowances allocated to steam-electric
generating plants owned by the Company or in which
the Company has interests, pursuant to Title IV of
the Clean Air Act Amendments of 1990, Pub. L.
101-549, Nov. 15, 1990, 104 Stat. 2399, 42 USC
7651, ET SEQ., as now in effect or as hereafter
supplemented or amended."
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.01. The right, if any, of the Company to assert the defense of
usury against a holder or holders of bonds of the Fifty-ninth Series, the
Sixtieth Series, the Sixty-First Series or any subsequent series shall be
determined only under the laws of the State of New York.
SECTION 6.02. The terms defined in the Mortgage shall, for all purposes
of this Fifty-fourth Supplemental Indenture, have the meanings specified in the
Mortgage.
SECTION 6.03. The Trustee hereby accepts the trusts declared, provided,
created or supplemented in the Mortgage and herein, and agrees to perform the
same upon the
14
terms and conditions set forth herein and in the Mortgage, and upon the
following terms and conditions:
The Trustee shall not be responsible in any manner whatsoever for
or in respect of the validity or sufficiency of this Fifty-fourth Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made by the Company solely. In general, each and every term and
condition contained in Article XVII of the Mortgage shall apply to and form part
of this Fifty-fourth Supplemental Indenture with the same force and effect as if
the same were herein set forth in full, with such omissions, variations and
insertions, if any, as may be appropriate to make the same conform to the
provisions of this Fifty-fourth Supplemental Indenture.
SECTION 6.04. Whenever in this Fifty-fourth Supplemental Indenture
either the Company or the Trustee is named or referred to, this shall, subject
to the provisions of Articles XVI and XVII of the Mortgage, be deemed to include
the successors and assigns of such party, and all the covenants and agreements
in this Fifty-fourth Supplemental Indenture contained by or on behalf of the
Company, or by or on behalf of the Trustee, or either of them, shall, subject as
aforesaid, bind and inure to the respective benefits of the respective
successors and assigns of such parties, whether so expressed or not.
SECTION 6.05. Nothing in this Fifty-fourth Supplemental Indenture,
expressed or implied, is intended, or shall be construed, to confer upon, or to
give to, any person, firm or corporation, other than the parties hereto and the
holders of the bonds and coupons Outstanding under the Mortgage, any right,
remedy or claim under or by reason of this Fifty-fourth Supplemental Indenture
or any covenant, condition, stipulation, promise or agreement hereof, and all
the covenants, conditions, stipulations, promises and agreements in this Fifty-
fourth Supplemental Indenture contained by or on behalf of the Company shall be
for the sole and exclusive benefit of the parties hereto, and of the holders of
the bonds and coupons Outstanding under the Mortgage.
SECTION 6.06. This Fifty-fourth Supplemental Indenture shall be executed
in several counterparts each of which shall be an original and all of which
shall constitute but one and the same instrument.
15
IN WITNESS WHEREOF, PACIFICORP has caused its corporate name to
be hereunto affixed, and this instrument to be signed and sealed by one of its
Vice Presidents, and its corporate seal to be attested to by its Secretary or
one of its Assistant Secretaries; and Chemical Bank has caused its corporate
name to be hereunto affixed, and this instrument to be signed and sealed by one
of its Vice Presidents or one of its Assistant Vice Presidents, and its
corporate seal to be attested to by one of its Senior Trust Officers, all as of
the day and year first above written.
[SEAL] PACIFICORP
By s/s X. X. XXXX
-------------------
Vice President
Attest:
s/s XXXXXX X. XXXXXX
-------------------------------
Assistant Secretary
CHEMICAL BANK
as Corporate Trustee
By s/s X. X. XXXXXX
-------------------------
Vice President
Attest:
s/s XXXXX X. XXXXXXXX
--------------------------------
Senior Trust Officer
16
STATE OF OREGON )
) ss:
COUNTY OF MULTNOMAH )
On this 7th day of December, 1995, before me, Xxxxxx X. Xxxxxxxx,
a Notary Public in and for the State of Oregon, personally appeared Xxxxxx X.
Xxxx and Xxxxxx X. Xxxxxx, known to me to be a Vice President and an Assistant
Secretary, respectively, of PACIFICORP, an Oregon corporation, who being duly
sworn, stated that the seal affixed to the foregoing instrument is the corporate
seal of said corporation and acknowledged this instrument to be the free,
voluntary and in all respects duly and properly authorized act and deed of said
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal
the day and year first above written.
s/s XXXXXX X. XXXXXXXX
----------------------------
My commission expires: 5/25/96
[SEAL] Residing at: Portland, Oregon
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 13th day of December, 1995, before me, Xxxxxxxxx XxXxxx,
a Notary Public in and for the State of New York, personally appeared X. X.
Xxxxxx and Xxxxx X. XxXxxxxx, known to me to be a Vice President and a Senior
Trust Officer, respectively, of CHEMICAL BANK, A NEW YORK CORPORATION, who being
duly sworn, stated that the seal affixed to the foregoing instrument is the
corporate seal of said corporation and acknowledged this instrument to be the
free, voluntary and in all respects duly and properly authorized act and deed of
said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal
the day and year first above written.
s/s XXXXXXXXX XXXXXX
--------------------------------
Notary Public, State of New York
No. O1DE5013759
Qualified in Kings County
[SEAL] Commission expires: July 15, 1997
17
