Exhibit C(19)
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FIRST SUPPLEMENTAL LOAN AGREEMENT
BETWEEN
PORT OF XXXXXX, OREGON
AND
PORTLAND GENERAL ELECTRIC COMPANY,
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Dated as of May 1, 2003
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Relating to $23,600,000
Port of Xxxxxx, Oregon
Pollution Control Revenue Refunding Bonds
(Portland General Electric Company Project)
Series 1998A
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Amending and supplementing the Loan Agreement between Port of Xxxxxx,
Oregon, and Portland General Electric Company, dated as of May 1, 1998.
1489069.01.09.B
0867838/RJS/RDB/mt Port of Xxxxxx 1998A - Supplemental Loan Agreement
TABLE OF CONTENTS
SECTION HEADING PAGE
PARTIES........................................................................1
RECITALS.......................................................................1
ARTICLE I DEFINITIONS.................................................2
Section 101. Definitions Contained in the Original Loan Agreement and
the Indenture............................................2
Section 102. New Definitions.............................................2
Section 103. Rules of Construction; Certain Terms........................3
ARTICLE II REPRESENTATIONS AND WARRANTIES..............................3
Section 201. Representations and Warranties of the Issuer................3
Section 202. Representations and Warranties of the Company...............4
ARTICLE III AMENDMENTS TO THE ORIGINAL LOAN AGREEMENT...................6
Section 301. Amendment of Article IV of the Original Loan Agreement......6
Section 302. Amendment of Article V of the Original Loan Agreement......11
Section 303. Amendment of Article VI of the Original Loan Agreement.....12
Section 304. Amendment of Article VII of the Original Loan Agreement....12
Section 305. Amendment of Article IX of the Original Loan Agreement.....15
ARTICLE IV MISCELLANEOUS..............................................15
Section 401. Execution of Counterparts..................................15
Section 402. Effective Date Applicability of the Agreement..............15
Section 403. Governing Law..............................................15
Section 404. Severability...............................................15
SIGNATURES....................................................................16
EXHIBIT A -- CONSENT OF TRUSTEE
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Port of Xxxxxx 1998A - Supplemental Loan Agreement
FIRST SUPPLEMENTAL LOAN AGREEMENT
THIS FIRST SUPPLEMENTAL LOAN AGREEMENT, dated as of May 1, 2003 (the
"Supplemental Loan Agreement"), supplementing and amending that certain Loan
Agreement, dated as of May 1, 1998 (the "Original Loan Agreement," and,
collectively with the Supplemental Loan Agreement, the "Loan Agreement"), by and
between the PORT OF XXXXXX, OREGON (the "Issuer"), a political subdivision duly
organized and existing under the constitution and laws of the State of Oregon
(the "State"), and PORTLAND GENERAL ELECTRIC COMPANY, a corporation duly
organized under the laws of the State and duly qualified to conduct business in
the State (the "Company").
RECITALS:
A. The Issuer has previously issued its $23,600,000 Pollution Control
Revenue Refunding Bonds (Portland General Electric Company Project), Series
0000X (xxx "Xxxxx") pursuant to a Trust Indenture, dated as of May 1, 1998 (the
"Original Indenture"), as amended and restated by that certain First
Supplemental Trust Indenture, dated as of the date hereof (the "First
Supplemental Indenture," and, collectively with the Original Indenture, the
"Indenture"), each between the Issuer and X.X. Xxxxxx Trust Company, National
Association (as successor to Chase Manhattan Bank and Trust Company, National
Association), as trustee (the "Trustee").
B. In connection with the original issuance of the Bonds, the Issuer and
the Company entered into the Original Loan Agreement.
C. The Company desires to pledge its First Mortgage Bonds, Collateral
Series A due 2033 (the "First Mortgage Bonds"), to secure its loan payment
obligations under the Original Loan Agreement and thereby enhance the
marketability of the Bonds.
D. Section 9.04 of the Original Loan Agreement provides that the Original
Loan Agreement may only be amended by written agreement of the Issuer and the
Company and with the written consent of the Trustee in accordance with the
Indenture.
E. This Supplemental Loan Agreement constitutes the written agreement of
the Company and the Issuer to amend the Original Loan Agreement, as required by
Section 9.04 of the Original Loan Agreement.
F. Pursuant to resolution number 2003-02, adopted by the Issuer on April 9,
2003, the Issuer has approved and authorized the execution of this Supplemental
Loan Agreement.
G. Section 12.05(j) of the Indenture provides that the Issuer and the
Company may amend and supplement the Original Loan Agreement, without the
consent of or notice to the Owners, to provide for a Change of Credit Facility.
H. The pledge and delivery of the First Mortgage Bonds constitutes a Change
of Credit Facility.
Port of Xxxxxx 1998A - Supplemental Loan Agreement
I. Section 12.05(k) of the Original Indenture provides that the Issuer and
the Company may modify, alter, amend or supplement the Original Loan Agreement,
without the consent of or notice to the Owners of the Bonds, if the effective
date of such supplement or amendment is a date on which the Bonds affected are
subject to mandatory purchase pursuant to Section 3.02 of the Original
Indenture.
J. The effective date of this Supplemental Loan Agreement is a date on
which all of the Bonds are subject to mandatory purchase pursuant to Section
3.02 of the Original Indenture.
K. The Consent of the Trustee, attached as Exhibit A, required by Section
9.04 of the Original Loan Agreement has been delivered to the Issuer and the
Company.
L. There has been delivered to the Issuer and the Trustee the opinion of
Bond Counsel required by Section 12.05 of the Indenture.
M. The execution and delivery of this Supplemental Loan Agreement have been
duly authorized by the governing body of the Issuer and all things necessary to
make this Supplemental Loan Agreement a valid and binding agreement of the
Issuer have been done.
In consideration of the foregoing and of the mutual covenants herein set
forth, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 101. Definitions Contained in the Original Loan Agreement and the
Indenture. The words and terms defined in the Original Loan Agreement and the
Indenture shall for all purposes of this Supplemental Loan Agreement have the
meanings specified in such Original Loan Agreement or in the Indenture, as
applicable, when used herein, unless the context clearly requires otherwise.
Section 102. New Definitions. The following words and terms as used in this
Supplemental Loan Agreement shall have the following meanings:
"First Supplemental Indenture" means the First Supplemental Indenture,
dated as of May 1, 2003, between the Issuer and the Trustee, amending and
restating the Original Indenture.
"Original Loan Agreement" means the Loan Agreement, dated as of May 1,
1998, between the Issuer and the Company.
"Memorandum" means the Memorandum of Agreement, dated September 15, 1993,
between the Company and the Issuer.
"Supplemental Loan Agreement" means this First Supplemental Loan Agreement,
dated as of May 1, 2003, between the Issuer and the Company.
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Port of Xxxxxx 1998A - Supplemental Loan Agreement
Section 103. Rules of Construction; Certain Terms. (a) Except where the
context otherwise requires, words importing the singular number shall include
the plural number and vice versa, and words importing persons shall include
firms, associations, trusts, corporations or governments or agencies or
political subdivisions thereof.
(b) As used in the Loan Agreement, the term "payment hereunder" shall
include payments, if any, on the First Mortgage Bonds.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 201. Representations and Warranties of the Issuer. The Issuer
represents, warrants and agrees that:
(a) The Issuer is a political subdivision of the State, duly organized
and validly existing under the Constitution and laws of the State.
(b) The Bonds are currently Outstanding in the aggregate principal
amount of $23,600,000.
(c) Under the Act, the Issuer has the power to enter into the
transactions contemplated by the Loan Agreement and the Indenture and to
carry out its obligations hereunder and thereunder. By proper action of its
governing body, the Issuer has been duly authorized to execute, deliver and
duly perform this Supplemental Loan Agreement and the First Supplemental
Indenture and has made all determinations and findings as and where
required by Section 777.565 of the Act.
(d) The execution and delivery of this Supplemental Loan Agreement and
the First Supplemental Indenture by the Issuer do not, and consummation of
the transactions contemplated hereby and thereby and fulfillment of the
terms hereof and thereof by the Issuer will not, result in a breach of any
of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust or other agreement or instrument to
which the Issuer is now a party or by which it is now bound, or any order,
rule or regulation applicable to the Issuer of any court or of any
regulatory body or administrative agency or other governmental body having
jurisdiction over the Issuer or over any of its properties, or any statute
of any jurisdiction applicable to the Issuer.
(e) No consent, approval, authorization or other order of any
regulatory body or administrative agency or other governmental body is
legally required for the Issuer's execution and delivery of this
Supplemental Loan Agreement or the First Supplemental Indenture.
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Port of Xxxxxx 1998A - Supplemental Loan Agreement
(f) Except as amended by this Supplemental Loan Agreement, the
Original Loan Agreement has not been previously amended or supplemented
and, as of the date hereof, is still in full force and effect.
(g) Except as amended and restated by the First Supplemental
Indenture, the Indenture has not previously been amended or supplemented
and is still in full force and effect.
(h) X.X. Xxxxxx Trust Company, National Association (as successor to
Chase Manhattan Bank and Trust Company, National Association), is the
Trustee under the Indenture.
(i) The Issuer has not assigned or pledged and will not assign or
pledge its interest in the Loan Agreement other than to secure the Bonds.
(j) To the knowledge of the Issuer, after due inquiry, no litigation
is pending or threatened against the Issuer in any way affecting any
authority for or the validity of the Indenture, the Loan Agreement or the
existence or powers of the Issuer.
(k) The Issuer will not knowingly take or omit to take any action
reasonably within its control the taking or omission of which would
adversely affect the Tax-Exempt status of the Bonds. The Issuer will file
or cause to be filed with the United States Department of Treasury the
information required by Section 149(e) of the Code.
Section 202. Representations and Warranties of the Company. The Company
represents, warrants and agrees that:
(a) It is a corporation duly organized and validly existing under the
laws of the State of Oregon, is not in violation of any provision of its
Articles of Incorporation or its Bylaws, in each case as the same have been
amended, has full corporate power to own its properties and conduct its
business, has not received notice and has no reasonable grounds to believe
that it is in violation of any laws in any manner material to its
obligations under this Supplemental Loan Agreement, and has the corporate
power to enter into, and by proper corporate action has duly authorized the
execution and delivery of, this Supplemental Loan Agreement and has the
power to issue and deliver the First Mortgage Bonds as contemplated herein.
(b) Neither the execution and delivery of this Supplemental Loan
Agreement, the consummation of the transactions contemplated hereby, nor
the fulfillment of or compliance with the terms and conditions of this
Supplemental Loan Agreement (including, without limitation, the issuance,
delivery and performance of the First Mortgage Bonds) conflicts with or
will result in a breach of any of the terms, conditions or provisions of
any law or judgment to which the Company or its property or assets are
subject or of any corporate restriction contained in its Articles of
Incorporation or its Bylaws, in each case as the same have been amended, or
any agreement or instrument to which the Company is now a party or by which
it is bound, or constitutes, with or without
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Port of Xxxxxx 1998A - Supplemental Loan Agreement
the giving of notice or lapse of time or both, a default under any of the
foregoing, or results in the creation or imposition of any lien, charge or
encumbrance whatsoever upon any of the property or assets of the Company
(other than that the Company Mortgage is a lien on substantially all of the
Company's property and assets, and other than any lien, charge or
encumbrance which may be created in favor of the Trustee by the Company
Mortgage and the Company Supplemental Indenture) under the terms of any
instrument or agreement.
(c) This Supplemental Loan Agreement has been duly and validly
authorized, executed and delivered by the Company and is a legal, valid and
binding obligation of the Company, enforceable in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium, usury or other similar laws affecting the
rights of creditors generally, equitable principles relating to the
availability of remedies and principles of public or governmental policy
limiting the enforceability of the indemnification and contribution
provisions.
(d) No event has occurred and is continuing under the provisions of
either the Original Loan Agreement, or to the knowledge of the Company,
under the provisions of the Original Indenture, which event now
constitutes, or with the lapse of time or the giving of notice, or both,
would constitute an Event of Default under either the Original Loan
Agreement or the Original Indenture.
(e) Other than the orders of the Public Utility Commission of Oregon
and the approval by the Issuer, all of which orders and approvals will have
been received and be in effect prior to the initial authentication and
delivery of the Bonds, no consent, approval, authorization or order of, or
registration with, any court or governmental or regulatory agency or body
is required with respect to the Company for the execution, delivery and
performance by the Company of this Supplemental Loan Agreement and the Tax
Certificate.
(f) The Original Loan Agreement has not been previously amended or
supplemented and as of the date hereof is still in full force and effect.
(g) The Bonds are currently Outstanding in the aggregate principal
amount of $23,600,000.
(h) This Supplemental Loan Agreement and the First Supplemental
Indenture are being executed and delivered, and the First Mortgage Bonds
are being issued in connection with the remarketing of the Bonds for a new
Term Interest Rate Period that begins on May 1, 2003 and ends on April 30,
2009.
(i) The Company will cooperate with the Issuer in filing or causing to
be filed with the United States Department of Treasury the information
required by Section 149(e) of the Code.
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Port of Xxxxxx 1998A - Supplemental Loan Agreement
ARTICLE III
AMENDMENTS TO THE ORIGINAL LOAN AGREEMENT
Section 301. Amendment of Article IV of the Original Loan Agreement. (a)
Article IV of the Original Loan Agreement is hereby amended by revising Section
4.01 to read in its entirety as follows:
Section 4.01. Loan Payments. (a) As and for repayment of the loan made
to the Company by the Issuer pursuant to Section 3.03 hereof, the Company
shall pay to the Trustee, for the account of the Issuer, an amount equal to
the aggregate principal amount of and the premium, if any, on the Bonds
from time to time Outstanding and, as interest on its obligation to pay
such amount, an amount equal to interest on the Bonds, such amounts to be
paid in installments due on the dates, in the amounts and in the manner
provided in the Indenture for the payment of the principal of and premium,
if any, and interest on the Bonds, whether at maturity, upon redemption,
acceleration or otherwise; provided, however, that the obligation of the
Company to make any such payment hereunder shall be reduced by the amount
of any moneys held by the Trustee under the Indenture and available for
such payment.
(b) In the event the Company shall fail to make any payment required
by Section 4.01(a) hereof with respect to the principal of and premium, if
any, and interest on any Bond, the payment so in default shall continue as
an obligation of the Company until the amount in default shall have been
fully paid, and the Company will pay interest on any overdue amount with
respect to principal of such Bond and, to the extent permitted by law, on
any overdue amount with respect to premium, if any, and interest on such
Bond, at the interest rate borne by such Bond until paid.
(c) The obligation of the Company to make any payment under Section
4.01(a) hereof shall be deemed to be satisfied and discharged to the extent
of any corresponding payment made by the Company to the Trustee, for the
account of the Issuer, of principal of, or premium, if any, or interest on
the First Mortgage Bonds.
(b) Article IV of the Original Loan Agreement is hereby amended by revising
Section 4.03 to read in its entirety as follows:
Section 4.03. Payments Assigned; Obligation Absolute. (a) It is
understood and agreed that the Loan Payments are pledged and assigned by
the Issuer to the Trustee pursuant to the Indenture, and that all right,
title and interest of the Issuer hereunder (except for amounts payable to,
and the rights of, the Issuer under Section 4.04, Section 4.06(a), Section
5.03, Section 5.06, Section 5.07, Section 5.08 and Section 7.05 hereof and
the Issuer's rights to receive notices, certificates, requests,
requisitions, directions and other communications hereunder), are pledged
and assigned to the Trustee pursuant to the Indenture. The Company assents
to such pledge and assignment and agrees that the obligation of the Company
to make the Loan Payments and payments to the Trustee under Section 4.02
hereof shall be absolute, irrevocable and unconditional
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Port of Xxxxxx 1998A - Supplemental Loan Agreement
and shall not be subject to cancellation, termination or abatement, or to
any defense other than payment (including payment on the First Mortgage
Bonds in accordance with Sections 4.01(a) and 4.09 hereof), or to any right
of setoff, counterclaim or recoupment arising out of any breach under this
Agreement or the Indenture or otherwise by the Company, the Trustee, the
Remarketing Agent, or any other party, and, further, that the Loan Payments
and the other payments due hereunder shall continue to be payable at the
times and in the amounts herein and therein specified whether or not the
Projects, or any portion thereof, shall have been destroyed by fire or
other casualty, or title thereto, or the use thereof, shall have been taken
by the exercise of the power of eminent domain, and that there shall be no
abatement of or diminution in any such payments by reason thereof, whether
or not the Projects shall be used or useful and whether or not any
applicable laws, regulations or standards shall prevent or prohibit the use
of the Projects or for any other reason. The Projects shall not constitute
any part of the Trust Estate or any part of the security for the Bonds
except to the extent that First Mortgage Bonds then constitute security for
the Bonds and the Projects are part of the "trust estate" under the Company
Mortgage.
(b) It is understood and agreed (i) that payments on First Mortgage
Bonds will be made in accordance with the Company Mortgage and Section 4.09
hereof, (ii) that such payments are pledged and assigned by the Issuer to
the Trustee pursuant to the Indenture and (iii) that all right, title and
interest of the Issuer to the First Mortgage Bonds are pledged and assigned
to the Trustee pursuant to the Indenture. The Company assents to such
pledge and assignment.
(c) Article IV of the Original Loan Agreement is hereby amended by revising
Section 4.04 to read in its entirety as follows:
Section 4.04. Payment of Expenses. The Company shall pay all of the
Administration Expenses of the Issuer (including the annual administrative
fee required by Section 3(c) of the Memorandum), the Trustee, the Paying
Agent, the Registrar, Xxxxx'x and S&P under the Indenture and of any
Remarketing Agent under a Remarketing Agreement directly to each such
entity. The Company shall also pay all of the expenses of the Prior Trustee
in connection with the Refunding and all other reasonable fees and expenses
incurred in connection with the issuance of the Bonds, including, but not
limited to, all costs associated with any discontinuance of the book-entry
system described in Section 2.10 of the Indenture.
Prior to any deposit with the Trustee made pursuant to Section 5.15 or
Article VIII of the Indenture, the Company shall provide for, in a manner
satisfactory to the Trustee, the payment of all of the Administration
Expenses of the Trustee, the Paying Agent, and the Registrar.
(d) Article IV of the Original Loan Agreement is hereby amended by revising
Section 4.05 to read in its entirety as follows:
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Port of Xxxxxx 1998A - Supplemental Loan Agreement
Section 4.05. Indemnification. The Company releases the Trustee and
the Registrar and their respective officers, agents, servants and employees
from, agrees that the Trustee and the Registrar and their respective
officers, agents, servants and employees shall not be liable for, and
agrees to indemnify and hold free and harmless the Trustee and the
Registrar and their respective officers, agents, servants and employees
from and against, any liability for any loss or damage to property or any
injury to or death of any person that may be occasioned by any cause
whatsoever pertaining to the Project, except in any case as a result of the
gross negligence or willful misconduct of the Trustee and the Registrar and
their respective officers, agents, servants and employees.
The Company will indemnify and hold free and harmless the Trustee and
the Registrar and their respective officers, agents, servants and employees
from and against any loss, claim, damage, tax, penalty, liability,
disbursement, litigation or other expenses, attorneys' fees and expenses or
court costs arising out of, or in any way relating to, the execution or
performance of this Agreement or the Tax Certificate; the issuance or sale
of the Bonds or the First Mortgage Bonds; the Refunding; the acceptance or
administration of the trust under the Indenture; compliance or attempted
compliance with or reliance upon any instruction or other direction upon
which the Trustee or the Registrar, as the case may be, is authorized to
rely pursuant to the terms of the Indenture, this Agreement or the Company
Mortgage; or any other cause whatsoever pertaining to this Agreement, the
Tax Certificate, the Company Mortgage, the First Mortgage Bonds or the
Indenture, except in any case as a result of the gross negligence or
willful misconduct of the Trustee and the Registrar or their respective
officers, agents, servants and employees.
The obligations of the Company under this Section 4.05 shall survive
the termination of this Agreement and the Indenture.
(e) Article IV of the Original Loan Agreement is hereby amended by revising
Section 4.07 to read in its entirety as follows:
Section 4.07. Credit Facility. (a) The Company may at any time provide
for a Change of Credit Facility, provided that the Company delivers to the
Trustee and the Remarketing Agent:
(1) not less than five Business Days prior to the date on which
the Trustee must notify the Owners of a Change of Credit Facility
pursuant to clause (i) or clause (ii), as applicable, of Section
2.11(a) of the Indenture, a notice which (A) states the effective date
of the Change of Credit Facility, (B) describes the terms of the
Change of Credit Facility, and (C) directs the Trustee to give such
notice to the Owners; provided, however, that if notice to the Owners
is not required pursuant to Section 2.1l(a)(iii) of the Indenture,
prior to the effective date of such Change of Credit Facility, the
Company shall deliver to the Trustee a notice of the Change of Credit
Facility; and
(2) on or prior to the effective date of any such Change of
Credit Facility, the following:
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Port of Xxxxxx 1998A - Supplemental Loan Agreement
(A) an opinion of Bond Counsel stating, in effect, that such
Change of Credit Facility (i) is authorized under this Agreement,
and (ii) will not cause the interest on the Bonds to become
includible in the gross income of the Owners thereof for federal
income tax purposes;
(B) a certificate of an Authorized Company Representative as
to whether the Bonds are then rated by either Xxxxx'x or S&P, or
both; and
(C) written evidence from Xxxxx'x, if the Bonds are then
rated by Xxxxx'x, and from S&P, if the Bonds are then rated by
S&P, in each case to the effect that such rating agency has
reviewed the proposed Change of Credit Facility and that such
Change of Credit Facility will not, by itself, result in a
reduction, suspension or withdrawal of its rating or ratings of
the Bonds;
and, provided, further, that if the Change of Credit Facility consists of
the replacement of First Mortgage Bonds with a separate Credit Facility,
then (x) such Credit Facility shall consist of a bond insurance policy or
policies, (y) following such Change of Credit Facility, the Bonds will be
rated AAA (or its equivalent) by either Xxxxx'x or S&P and (z) the Company
shall not be required to deliver to the Trustee and the Remarketing Agent
the certificate of an Authorized Company Representative or the written
evidence from the rating agency or rating agencies then rating the Bonds,
required by clause (2)(B) and clause (2)(C), respectively, above.
(b) In lieu of satisfying the requirements of subsection (a) above,
the Company may provide for a Change of Credit Facility1 at any time that
the Bonds are subject to optional redemption pursuant to Section 4.02(b) of
the Indenture, provided that the Company delivers to the Trustee and the
Remarketing Agent not less than 30 days before the effective date of the
Change of Credit Facility:
(1) a notice which (A) states the effective date of the Change of
Credit Facility, (B) describes the terms of the Change of Credit
Facility, (C) directs the Trustee to give notice pursuant to Section
2.11(b) of the Indenture that the Bonds are subject to mandatory
purchase, in whole, on or before the effective date of the Change of
Credit Facility in accordance with Section 3.02(b)(ii) of the
Indenture, and (D) directs the Trustee to take any other action as
shall be necessary for the Trustee to take to effect the Change of the
Credit Facility; and
(2) on or before the effective date of the Change of Credit
Facility, the Company shall furnish to the Trustee an opinion of Bond
Counsel satisfying the requirement of clause (2) of subsection (a)
above.
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1 This includes a release of the First Mortgage Bonds other than a redemption
described in Section 515 of the Indenture.
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Port of Xxxxxx 1998A - Supplemental Loan Agreement
(c) The Company may provide for one or more extensions of a
Credit Facility for any period commencing after its then-current
expiration date without complying with the foregoing provisions of
this Section.
(d) The Company may rescind its election to make a Change of
Credit Facility at any time prior to the effective date thereof.
(f) Article IV of the Original Loan Agreement is hereby amended by adding
Section 4.09 to read in its entirety as follows:
Section 4.09. Issuance, Delivery and Surrender of First Mortgage
Bonds. (a) The obligation of the Company pursuant to Section 4.01 hereof to
repay the loan made to it by the Issuer pursuant to Section 3.03 hereof may
be secured by First Mortgage Bonds.
(b) Such First Mortgage Bonds shall (i) mature on the same date and in
the same principal amount as the Bonds, (ii) bear interest at the same rate
and be payable at the same times as the Bonds, (iii) contain redemption
provisions correlative to the provisions of Section 4.02 and Section 4.03
of the Indenture, and (iv) subject to the provisions of Section 4.09(c)
hereof, require payments of the principal thereof, or premium, if any, or
interest thereon to be made to the Trustee for the account of the Issuer
and the benefit of the Owners. Such First Mortgage Bonds shall be held,
voted, transferred and surrendered by the Trustee subject to and in
accordance with the respective provisions of this Agreement and the
Indenture. Any moneys received by the Trustee with respect to First
Mortgage Bonds shall be used to make the corresponding payment then due of
principal of and premium, if any, and interest on the Bonds in accordance
with the terms of the Bonds and the Indenture. Any proceeds of First
Mortgage Bonds in excess of the amounts necessary to pay in full the
principal of and premium, if any, and interest on the Bonds shall be
remitted to the Company.
(c) The Company shall receive a credit against its obligations to make
any payment of principal of, or premium, if any, or interest on First
Mortgage Bonds described in Section 4.09(b) hereof (whether at maturity,
upon redemption or otherwise), and such obligations shall be fully or
partially, as the case may be, satisfied and discharged, in an amount equal
to the amount, if any, paid by the Company under Section 4.01 hereof, or
otherwise satisfied or discharged, in respect of the principal of and
premium, if any, and interest on the Bonds. The obligations of the Company
to make such payment of principal of, or premium, if any, or interest on
the First Mortgage Bonds shall be deemed to have been reduced by the amount
of such credit.
(d) The Issuer agrees that, if the Company's obligation under Section
4.01 hereof to repay the loan made to it pursuant to Section 3.03 hereof is
secured by First Mortgage Bonds, then (i) such First Mortgage Bonds shall
be issued and delivered to, registered in the name of and held by the
Trustee (or, subject to Section 5.11 of the indenture, the Trustee's
nominee) for the benefit of the Owners from time to time of the Bonds, and
the Company shall make all payments of principal of, or premium, if any, or
interest on the First Mortgage Bonds to the Trustee as the registered owner
thereof; and (ii) the
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Port of Xxxxxx 1998A - Supplemental Loan Agreement
Company may take such actions as it shall deem to be desirable to effect
compliance with such restrictions on transfer, including the placing of an
appropriate legend on each First Mortgage Bond and the issuance of
stop-transfer instructions to the Company Mortgage Trustee or any other
transfer agent under the Company Mortgage.
Section 302. Amendment of Article V of the Original Loan Agreement. (a)
Article V of the Original Loan Agreement is hereby amended by revising Section
5.01 to read in its entirety as follows:
Section 5.01. Maintenance of Existence; Conditions Under Which
Exceptions Permitted. The Company shall maintain in good standing its
corporate existence as a corporation organized under the laws of one of the
states of the United States or the District of Columbia and will remain
duly qualified to do business in the State for so long as the Company has
an ownership interest in the Projects, will not dissolve or otherwise
dispose of all or substantially all of its assets and will not consolidate
with or merge into another corporation; provided, however, that the Company
may, without violating the foregoing, undertake from time to time any one
or more of the following, if, prior to the effective date thereof, there
shall have been delivered to the Trustee an opinion of Bond Counsel stating
that the contemplated action will not adversely affect the Tax-Exempt
status of the Bonds:
(a) consolidate or merge with another domestic corporation (i.e.,
a corporation incorporated and existing under the laws of one of the
states of the United States or of the District of Columbia), or sell
or otherwise transfer to another entity all or substantially all of
its assets as an entirety, provided the resulting, surviving or
transferee entity, as the case may be, shall be (i) the Company or
(ii) an entity qualified to do business in the State as a foreign
corporation or incorporated and existing under the laws of the State,
which, as a result of the transaction, shall have assumed (either by
operation of law or in writing) all of the obligations of the Company
hereunder and under any First Mortgage Bonds then pledged to secure
payment of the Company's obligation hereunder, or
(b) convey all or substantially all of its assets to (i) a
governmental entity purchasing such assets or (ii) one or more
wholly-owned subsidiaries of the Company so long as, in either case,
the Company shall remain in existence and primarily liable on all of
its obligations hereunder and under any First Mortgage Bonds then
pledged to secure payment of the Company's obligations hereunder.
(b) Article V of the Original Loan Agreement is hereby amended by revising
Section 5.07(b) to read in its entirety as follows:
(b) The Company shall cause the Projects to be maintained in good
repair and shall cause the Projects to be insured in accordance with
standard industry practice and shall pay all costs thereof. All proceeds of
such insurance shall be for the account of the
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Company. Compliance by the Company with the Company Mortgage shall be
deemed sufficient compliance with this Section.
Section 303. Amendment of Article VI of the Original Loan Agreement. (a)
Article VI of the Original Loan Agreement is hereby amended by revising Section
6.01 to read in its entirety as follows:
Section 6.01. Conditions. The Company's interest in this Agreement may
be assigned in whole or in part by the Company: (a) to another entity,
subject, however, to the conditions that such assignment shall not relieve
(other than as described in Section 5.01(a)(ii) hereof) the Company from
primary liability for its obligations to make the Loan Payments or to make
payments to the Trustee under Section 4.02 hereof or for any other of its
obligations hereunder or to pay any Fast Mortgage Bonds, or (b) to an
Affiliate in connection with the conveyance of the Plant to such Affiliate,
subject, however, to the conditions that (i) such Affiliate meets the
requirements of Section 5.0l(a)(ii) hereof (in which case the Company shall
be relieved of all obligations hereunder); (ii) such conveyance is approved
by any public utility commissions or similar entities that are required by
law to approve such conveyance; and (iii) the Company shall have delivered
to the Trustee an opinion of counsel to the Company that such assignment
complies with the provisions of this Section 6.01.
Anything herein to the contrary notwithstanding, the Company shall not
make any assignment as provided in the preceding paragraph unless it shall
have furnished to the Trustee an opinion of Bond Counsel to the effect that
the proposed assignment will not impair the validity of the Bonds under the
Act or adversely affect the Tax-Exempt status of the Bonds.
Section 304. Amendment of Article VII of the Original Loan Agreement. (a)
Article VII of the Original Loan Agreement is hereby amended by revising Section
7.01 to read in its entirety as follows:
Section 7.01. Events of Default. Each of the following events shall
constitute and is referred to in this Agreement as an "Event of Default":
(a) a failure by the Company to make when due (i) any Loan
Payment and any payment on any First Mortgage Bonds, (ii) any other
payment required under Section 4.01 or (iii) any payment required
under Section 4.02 hereof, which failure shall have resulted in an
"Event of Default" under Section 9.01(a), Section 9.01(b) or Section
9.01(c) of the Indenture;
(b) a failure by the Company to pay when due any amount required
to be paid under this Agreement or to observe and perform any
covenant, condition or agreement on its part to be observed or
performed under this Agreement (other than a failure described in
Section 7.01(a) above), which failure shall continue for a period of
60 days (or such longer period as the issuer and the Trustee may agree
to in writing) after written notice, specifying such failure and
requesting that it be
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remedied, shall have been given to the Company by the Trustee or to
the Company and the Trustee by the Issuer; provided, however, that if
such failure is other than for the payment of money and is of such
nature that it cannot be corrected within the applicable period, such
failure shall not constitute an "Event of Default" so long as the
Company institutes corrective action within the applicable period and
such action is being diligently pursued; or
(c) the dissolution or liquidation of the Company; or the filing
by the Company of a voluntary petition in bankruptcy; or failure by
the Company promptly to lift or bond any execution, garnishment or
attachment of such consequence as will impair its ability to make any
payments under this Agreement and under any First Mortgage Bonds; or
the filing of a petition or answer proposing the entry of an order for
relief by a court of competent jurisdiction against the Company under
Title 11 of the United States Code, as the same may from time to time
be hereafter amended, or proposing the reorganization, arrangement or
debt readjustment of the Company under the provisions of any
bankruptcy act or under any similar act which may be hereafter enacted
and the failure of said petition or answer to be discharged or denied
within ninety (90) days after the filing thereof or the entry of an
order for relief by a court of competent jurisdiction in any
proceeding for its liquidation or reorganization under the provisions
of any bankruptcy act or under any similar act which may be hereafter
enacted; or an assignment by the Company for the benefit of its
creditors; or the entry by the Company into an agreement of
composition with its creditors (the term "dissolution or liquidation
of the Company," as used in this subsection (c), shall not be
construed to include the cessation of the corporate existence of the
Company resulting either from a merger or consolidation of the Company
into or with another corporation or a dissolution or liquidation of
the Company following a transfer of all or substantially all its
assets as an entirety, under the conditions permitting such actions
contained in Section 5.01 hereto.
(b) Article VII of the Original Loan Agreement is hereby amended by
revising Section 7.02 to read in its entirety as follows:
Section 7.02. Force Majeure. The provisions of Section 7.01(b) hereof
are subject to the following limitations: if by reason of acts of God;
strikes, lockouts or other industrial disturbances; acts of public enemies;
orders of any kind of the government of the United States or the State, or
any department, agency, political subdivision, court or official of any of
such State or any other state which asserts regulatory jurisdiction over
the Company; orders of any kind of civil or military authority;
insurrections; riots; epidemics; landslides; lightning; earthquakes;
volcanoes; fires; hurricanes; tornadoes; storms; floods; washouts;
droughts; arrests; restraint of government and people; civil disturbances;
explosions; breakage or accident to machinery; partial or entire failure of
utilities; or any cause or event not reasonably within the control of the
Company, the Company is unable in whole or in part to carry out any one or
more of its agreements or obligations contained herein, with the exception
of its obligations under Section 4.01, Section 4.02, Section 4.04, Section
4.05, Section 4.06, Section 5.01 and Section 5.06
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hereof and under any First Mortgage Bonds, the Company shall not be deemed
in default by reason of not carrying out said agreement or agreements or
performing said obligation or obligations during the continuance of such
inability. The Company shall make reasonable effort to remedy with all
reasonable dispatch the cause or causes preventing it from carrying out its
agreements, provided that the settlement of strikes, lockouts and other
industrial disturbances shall be entirely within the discretion of the
Company, and the Company shall not be required to make settlement of
strikes, lockouts and other industrial disturbances by acceding to the
demands of the opposing party or parties when such course is in the
judgment of the Company unfavorable to the Company.
(c) Article VII of the Original Loan Agreement is hereby amended by
revising Section 7.03 to read in its entirety as follows:
Section 7.03. Remedies. (a) Upon the occurrence and continuance of any
Event of Default described in Section 7.01(a) or Section 7.01(c) hereof,
and further upon the condition that, in accordance with the terms of the
Indenture, the Bonds shall have been declared to be immediately due and
payable pursuant to any provision of the Indenture, the Loan Payments shall
without further action, become and be immediately due and payable.
(b) Any waiver of any "Event of Default" under the Indenture and a
rescission and annulment of its consequences shall constitute a waiver of
the corresponding Event or Events of Default under this Agreement and a
rescission and annulment of the consequences thereof.
(c) Upon the occurrence and continuance of any Event of Default, the
Issuer may (i) take any action at law or in equity to collect any payments
then due and thereafter to become due hereunder or under the First Mortgage
Bonds or to seek injunctive relief or specific performance of any
obligation, agreement or covenant of the Company hereunder and (ii) pursue
any remedy available under the Company Mortgage.
(d) Any amounts collected from the Company pursuant to this Section
7.03 shall be applied in accordance with the Indenture. No action taken
pursuant to this Section 7.03 shall relieve the Company from the Company's
obligations pursuant to Section 4.01 or Section 4.02 hereof.
(e) Upon the occurrence and continuance of any Event of Default under
Section 9.01(f) of the Indenture, the Trustee, if it is then the holder of
First Mortgage Bonds, shall, subject to the provisions of the Indenture,
have the powers to exercise the remedies provided in the Company Mortgage.
Any waiver made in accordance with the Indenture of a "event of default"
under the Company Mortgage and a rescission and annulment of its
consequences shall constitute a waiver of the corresponding event under
this Agreement and a rescission and annulment of the consequences thereof.
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(d) Article VII of the Original Loan Agreement is hereby amended by
revising Section 7.05 to read in its entirety as follows:
Section 7.05. Reimbursement of Attorneys' Fees. If the Company shall
default under any of the provisions hereof and the Issuer or the Trustee
shall employ attorneys or incur other reasonable and proper expenses for
the collection of payments due hereunder or on the First Mortgage Bonds or
for the enforcement of performance or observance of any obligation or
agreement on the part of the Company contained herein or in the First
Mortgage Bonds or the Company Mortgage, the Company will on demand therefor
reimburse the Issuer or the Trustee, as the case may be, for the reasonable
and proper fees of such attorneys and such other reasonable and proper
expenses so incurred.
Section 305. Amendment of Article IX of the Original Loan Agreement. (a)
Article IX of the Original Loan Agreement is hereby amended by adding Section
9.08 to read in its entirety as follows:
Section 9.08 References to First Mortgage Bonds and the Company
Mortgage. At any time when the Company's obligation under Section 4.01
hereof to repay the loan made to it pursuant to Section 3.03 hereof is not
secured by First Mortgage Bonds, references to the First Mortgage Bonds or
the Company Mortgage shall be ineffective.
ARTICLE IV
MISCELLANEOUS
Section 401. Execution of Counterparts. This Supplemental Loan Agreement
may be simultaneously executed in several counterparts, each of which shall be
an original and all of which shall constitute but one and the same instrument.
Section 402. Effective Date Applicability of the Agreement. The provisions
of this Supplemental Loan Agreement shall become effective immediately upon the
execution and delivery hereof. Except as amended and supplemented by this
Supplemental Loan Agreement, all of the provisions of the Original Loan
Agreement shall remain in full force and effect.
Section 403. Governing Law. The laws of the State shall govern the
construction and enforcement of this Supplemental Loan Agreement.
Section 404. Severability. In the event any provision of this Supplemental
Loan Agreement shall be held invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render unenforceable any
other provision hereof.
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1N WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Loan Agreement to be duly executed as of the day and year first above written.
PORT OF XXXXXX, OREGON
By /s/ Xxxxxx Xxxxxx
-------------------------------------
President
ATTEST AND COUNTERSIGN:
By /s/ Xxxxx Xxxxxxx
--------------------------------------
Secretary
PORTLAND GENERAL ELECTRIC COMPANY
By /s/ Xxxxxxx Xxxxxx
-------------------------------------
Assistant Treasurer
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Port of Xxxxxx 1998A - Supplemental Loan Agreement
EXHIBIT A
CONSENT OF TRUSTEE
Responsive to Section 9.04 of the Loan Agreement, dated as of May 1, 1998
(the "Original Loan Agreement"), between the Port of Xxxxxx, Oregon (the
"Issuer"), and Portland General Electric Company, X.X. Xxxxxx Trust Company,
National Association (as successor to Chase Manhattan Bank and Trust Company,
National Association), as trustee (the "Trustee"), under that certain Trust
Indenture, dated May 1, 1998, between the Issuer and the Trustee, hereby
consents to the execution and delivery of the attached First Supplemental Loan
Agreement and the resultant amendments to the Original Loan Agreement.
X.X. XXXXXX TRUST COMPANY, NATIONAL
ASSOCIATION
By /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Vice President
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Port of Xxxxxx 1998A - Supplemental Loan Agreement
