SERVICES AND INDEMNITY AGREEMENT
This Services and Indemnity Agreement, dated as of September 30, 2002 (this
"Agreement"), is among GSS Holdings II, Inc. ("GSS"), a Delaware corporation,
Global Securitization Services, LLC ("Global"), a Delaware limited liability
company, Portland General Electric Company, an Oregon corporation (the
"Company").
Capitalized terms used but not defined in this Agreement shall have the
meanings assigned to such terms in the Motion of Enron Corp. for an order
pursuant to Sections 105 and 106 of the bankruptcy Code Authorizing Enron Corp.
to vote its shares of common stock in Portland General Electric Company to
permit Portland General Electric Company to issue a share of a new class of
junior preferred stock (the "Motion").
WHEREAS, GSS has been requested and has agreed to hold the share of the new
class of junior preferred stock (junior to present authorized classes of
preferred stock), to be titled Limited Voting Junior Preferred Stock, (the
"Share") to be issued by the Company.
NOW, THEREFORE, in consideration of the mutual promises herein contained,
and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto agree as follows:
Section 1. GSS's Service.
(a) GSS agrees to hold the Share as provided subject to the rights and
preferences with respect to the Share as provided in the Articles of
Incorporation of the Company.
(b) In consideration of GSS holding the Share pursuant to Section 1 (a) of
this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the Company, the Company shall
pay to Global a fee in the amount of $5,000.00 per year for each year that the
Share continues to be outstanding and held by GSS. Such fee for the first year
of this Agreement shall be due and payable by the Company to Global upon the
execution of this Agreement, and such fees for subsequent years shall be due and
payable by the Company to Global no later than each respective anniversary date
hereof. Invoices will be sent to Portland General Electric Company, 000 XX
Xxxxxx Xxxxxx, Xxxxxxxx, XX 00000, Attention: Assistant Treasurer.
(c) GSS and Global hereby agree to keep all information regarding the
Company and the transactions to which the Company is a party confidential,
except as may be required by law to be disclosed.
(d) The Company agrees to inform GSS and Global, as necessary, in a timely
manner of any information which is material with respect to any matter as to
which GSS is asked to vote in its capacity as the holder of the Share.
Section 2. Indemnification by Company.
(a) In consideration of GSS's service as the holder of the Share,
recognizing that the Company benefits from such service, and subject to Sections
2(b), 3 and 5, the Company hereby agrees to indemnify and hold GSS and Global
(collectively, the "Indemnitees") harmless from and against any and all claims,
liabilities, losses, damages, judgments, settlements, costs and expenses
(including, without limitation, court costs and reasonable attorneys' fees and
disbursements) (individually, a "Loss" and collectively, "Losses") that the
Indemnitees may sustain or incur as a result of (i) GSS's service as the
holder of the Share or (ii) any act or omission that GSS is alleged to have
taken or omitted to take as the holder of the Share, irrespective of the time
when the claim giving rise to such Loss or Losses is asserted or when the amount
of such Loss or Losses is established, excluding however any Losses resulting
from the gross negligence or willful misconduct of any Indemnitee.
(b) Upon Indemnitees' written verification to the reasonable satisfaction
of the Company of the amount and cause of any Loss or Losses incurred by the
Indemnitees or any of them, the Company shall pay each such Loss covered by this
Section directly as and when due to the Indemnitee entitled thereto.
Section 3. Duty to Defend Advance of Expenses. If any judicial or
administrative proceeding, or threatened proceeding, including any government
investigation, whether civil, criminal or otherwise (individually, an "Action"
and collectively, "Actions"), is asserted, commenced or brought against
Indemnitees or any of them for which Indemnitees may be indemnified by the
Company pursuant to Section 2(a), the Company shall retain and direct counsel to
defend such Action, and shall permit the Indemnitees to monitor the defense
thereof. Indemnitees shall have the right to approve such counsel, such approval
not to be unreasonably withheld. Indemnitees shall cooperate fully with the
Company and with such counsel in such defense. The Company shall assume
responsibility for the payment of all reasonable fees and disbursements of such
counsel.
Section 4. Reimbursement by Indemnitees. Indemnitees hereby agree that if
it is determined that Indemnitees, or any of them, are not entitled to
indemnification because of the provisions of Section 2(a) and the Company shall
have paid any amounts to or on behalf of such Indemnitees, then promptly after
such determination shall have been made, Indemnitees, or those of them not
entitled to indemnification as aforesaid, shall jointly and severally repay all
amounts paid by the Company to or on behalf of Indemnitees in connection with
all matters as to which it has been determined that such Indemnitees are not
entitled to indemnification.
Section 5. Notice of Claims; Settlements.
(a) If Indemnitees, or any of them, receives complaints, claims or other
notices of any Actions, Losses or other liabilities that may give rise to
indemnification under Section 2, Indemnitees shall promptly notify the Company
of each such complaint, claim or other notice; but the omission to so notify the
Company shall not relieve the Company from any liability under this Agreement,
except to the extent that the Company is prejudiced as a result of such failure.
(b) The Company shall not be obligated to indemnify Indemnitees for any
settlements of any Action or Losses otherwise covered by the indemnity provided
hereunder that are effected without the Company's prior written consent, which
shall not be unreasonably withheld.
Section 6. No Lawsuits. Except to the extent provided in Section 2(a),
including, but not limited to, to the extent of any gross negligence or willful
misconduct on the part of an Indemnitee, the Company agrees that it will not
assert, commence or bring any Action against Indemnitees, or prosecute any
lawsuit in state or federal court against Indemnitees on account of GSS's
service as holder of the Share, or of any act or omission by Indemnitees covered
by the Company's agreement to indemnify under Section 2.
Section 7. Notices. Any notice or other communication under this Agreement
shall be in writing and deemed given upon receipt by a party at its address set
forth on the signature page hereof or at such other address as such party shall
hereafter furnish in writing.
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Section 8. Counterparts; Modification; Headings.
(a) This Agreement may be executed in any number of counterparts, each of
which shall constitute one and the same instrument, and any party may execute
this Agreement by signing any such counterpart.
(b) No modification of this Agreement shall be binding unless executed in
writing by the parties hereto or their respective successors and permitted
assigns.
(c) Section headings are not part of this Agreement, they are solely for
convenience of reference and shall not affect the meaning or interpretation of
any provisions of this Agreement.
Section 9. Successors and Assigns; Sole Benefit. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, successors and assigns. Nothing
expressed or referred to herein is intended or shall be construed to give any
person other than the Company or the Indemnitees and the Indemnitees' heirs,
executors, administrators, successors and assigns any legal or equitable rights,
remedies or claims under or with respect to any provisions of this Agreement. No
party hereto may assign its obligations under this Agreement without the prior
consent of the other parties hereto.
Section 10. Agreement Not Exclusive. The right to indemnification provided
to Indemnitees under this Agreement shall be independent of, and neither subject
to nor in derogation of, any other rights to indemnification or exculpation to
which GSS or Global may be entitled, including, without limitation, any such
rights that may be asserted under any other agreement, applicable corporate law,
the Articles of Incorporation of the Company or any other contract or insurance.
Section 11. Costs of Enforcement. The Company shall pay all reasonable
costs and expenses incurred by the Indemnitees in the enforcement of their
rights under this Agreement, including, without limitation, all court costs and
reasonable attorney's fees.
Section 12. Severability. If any provision of this Agreement, or the
application thereof to any person, place or circumstance, shall be held by a
court of competent jurisdiction to be invalid, unenforceable or void, the
remainder of this Agreement and such provisions as applied to other persons,
places and circumstances shall remain in full force and effect.
Section 13. No Violation of Law. The Company shall be relieved of any
obligation to make payment of an amount to an Indemnitee pursuant to the terns
of this Agreement if payment of such amount would constitute a violation by the
Company of applicable law or regulation, but only so long as, and only to the
extent that, such payment constitutes such a violation.
Section 14. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York,
without reference to applicable principles of conflict of laws.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company and each of the other parties hereto has
caused this Agreement to be executed by its duly authorized officers, as of the
day and year first above written.
GSS HOLDINGS II, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: president
Address: 000 Xxxxx Xxxxxx Xxxx, Xxxxx
000 Xxxxxxxx, XX 00000
GLOBAL SECURITIZATION SERVICES, LLC
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: president
Address: 000 Xxxxx Xxxxxx Xxxx, Xxxxx
000 Xxxxxxxx, XX 00000
PORTLAND GENERAL ELECTRIC COMPANY
By: /s/ Xxxxx X. Xxxx
----------------------------------
Name: Xxxxx X. Xxxx
Title: Executive Vice President Finance,
CFO & Treasurer
Address: 000 XX Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
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SEE STATEMENT OF RESTRICTIONS ON REVERSE SIDE
No. 1 1 Share
Incorporated under the laws of
OREGON
PORTLAND GENERAL ELECTRIC COMPANY
Limited Voting Junior Preferred Stock
Fully Paid Nonassessable
This certifies that GSS Holdings II, Inc. is the record holder of
--------------------------
One Share
of the
LIMITED VOTING JUNIOR PREFERRED STOCK
of
PORTLAND GENERAL ELECTRIC COMPANY
------------------------------- -------------------------------
President Secretary
Portland, Oregon September 30,2002
Par Value $1.00 per share
The shares represented by this certificate have
not been registered under the Securities Act of
1933. The shares may not be sold or offered for
sale in the absence of (a) an effective
registration statement for the shares under such
Act, (b) a 'no action' letter of the Securities
and Exchange Commission with respect to such sale
1 Share or offer, or (c) satisfactory assurances to the
Corporation that registration under such Act is
not required with respect to such sale or offer.
The Articles of Incorporation, as amended, impose
significant restrictions on the transfer of the
share represented by this certificate. The share
may be transferred only upon approval of the
Oregon Public Utility Commission, and only to
persons or entities which are not during the
period of such ownership, and have not been for
the five-year period prior to such ownership, (i)
controlling or controlled by, or under direct or
Limited Voting indirect common control with the Corporation
Junior Preferred Stock ("Affiliate"), or any employee, director, equity
security holder, partner, member or officer of the
of Corporation or an Affiliate; (ii) employed by, or
an Affiliate of, a supplier of goods or services
PORTLAND GENERAL to the Corporation or any of its Affiliates that
ELECTRIC COMPANY derives more than ten percent of its revenues from
the Corporation or any of its Affiliates; or (iii)
a member of the immediate family of a person or
entity that is an Affiliate of or that controls
the Corporation.
The Corporation will furnish to the shareholder
upon request in writing, without charge, a
statement of (a) the designations, relative
rights, preferences and limitations applicable to
each class of shares; (b) the variations in
rights, preferences and limitations determined
for each series of shares; and (c) the authority
of the Board of Directors to determine variations
Par Value $1.00 per share for future series of shares.
