Exhibit A-3.1
AGREEMENT FOR THE PURCHASE OF EQUIPMENT
This Agreement for the Purchase of Equipment, dated as of May 12,
2005, ("Agreement") is by and among (a) Portland General Electric Company, an
Oregon corporation ("PGE"), (b) Xxxxx Fargo Bank Northwest, National
Association. (successor to First Interstate Bank of Oregon, N.A., formerly known
as First National Bank of Oregon), not in its individual capacity but solely as
owner trustee ("Owner Trustee"), (c) ICON/Xxxxxxxx Facility LLC (assignee of and
successor to Security Pacific Leasing Corporation, successor to Western America
Financial, Inc.) ("Owner Participant"), (d) U.S. Bank National Association
(successor in interest to U.S. Bank Trust National Association, formerly known
as United States National Bank of Oregon), not in its individual capacity but
solely as indenture trustee (the "Indenture Trustee"), and (e) Principal Life
Insurance Company, an Iowa corporation ("Loan Participant"). Hereinafter PGE,
Owner Trustee, Owner Participant, Indenture Trustee and Loan Participant may be
referred to individually as a "Party" and collectively as the "Parties."
Capitalized terms being used are as hereinafter defined.
BACKGROUND
A. PGE leases certain Equipment pursuant to a Lease Agreement, dated
as of September 1, 1979, as supplemented by Lease Supplement No. 1 dated
November 7, 1979, Lease Supplement No. 2 dated January 23, 1980, Lease
Supplement No. 3 dated January 26, 1993, Lease Supplement No. 4 dated as of
September 1, 1994 and Lease Supplement No. 5 dated as April 30, 2004 (as so
supplemented, the "Lease") between PGE and Owner Trustee, providing for, among
other things, (i) the sale by PGE to Owner Trustee of the Equipment, (ii) the
assignment by PGE of certain rights under contracts relating to the Equipment
and (iii) the leasing of the Equipment by Owner Trustee to PGE.
B. Prior to PGE entering into the Lease, Pacific Northwest Generating
Company, an Oregon cooperative corporation, ("PNGC"), and Idaho Power Company, a
Maine corporation ("IPCO"), conveyed to PGE all of their right, title and
interest in and to their respective ownership shares of the Equipment pursuant
to an amendment, dated September 1, 1979 ("Operating Agreement Amendment"), to
the Agreement for Construction, Ownership and Operation of the Number One
Xxxxxxxx Station on Xxxxx Reservoir, dated as of October 15, 1976, as the same
has been further amended, restated, modified or supplemented from time to time
("Operating Agreement").
C. PGE, IPCO, PNGC and Owner Trustee entered into a Facilities
Agreement, dated as of September 1, 1979, as amended by a First Amendment to
Facilities Agreement dated as of January 26, 1993 (as so amended, the
"Facilities Agreement"), whereby, among other things, PGE, IPCO and PNGC granted
to Owner Trustee easements and other rights necessary in connection with the
operation of the Equipment.
D. PGE, pursuant to a Bargain and Sale Deed, Xxxx of Sale and
Assignment, dated November 7, 1979, transferred all of its estate, right, title
and interest in the Phase I Equipment (as defined therein) to Owner Trustee, and
pursuant to a Bargain and Sale Deed, Xxxx of Sale and Assignment, dated January
23, 1980, transferred all of its estate, right, title and interest in
1
Exhibit A-3.1
the Phase II Equipment (as defined therein) to Owner Trustee (each an "Original
Xxxx of Sale" and together the "Original Bills of Sale").
E. Owner Trustee and Western America Financial, Inc. ("1979 Owner
Participant"), entered into a Trust Agreement, dated as of September 1, 1979
("1979 Trust Agreement"), providing, among other things, for the beneficial
ownership by Owner Participant of the Equipment.
F. Owner Trustee issued 10.20% Secured Notes (the "1979 Secured Notes")
pursuant to an Indenture and First Deed of Trust, dated as of September 1, 1979
(the"1979 Indenture"), between the Owner Trustee and the Indenture Trustee and
used the proceeds of the sale of the 1979 Secured Notes to acquire the Equipment
pursuant to the Lease.
G. Owner Trustee, as Assignor, and Indenture Trustee, as Assignee,
entered into a Lease Agreement Assignment and Agreement, dated as of September
1, 1979 (the "1979 Lease Assignment"), providing for the assignment of the Lease
by Owner Trustee to Indenture Trustee.
H. Owner Trustee and Indenture Trustee subsequently entered into an
Indenture and First Deed of Trust dated as of January 26, 1993 (the "1993
Indenture"), pursuant to which Owner Trustee issued $20,356,709.99 in original
principal amount of 7.49% Secured Notes (the "1993 Secured Notes") and used the
proceeds thereof to pay in full the 1979 Secured Notes in accordance with the
terms of the 1979 Indenture, which 1979 Indenture was terminated and released
pursuant to the Release of Indenture and First Deed of Trust and Lease Agreement
Assignment and Agreement, dated as of January 26, 1993, executed and delivered
by Indenture Trustee ("1993 Release").
I. Upon the termination of the 1979 Indenture, the 1979 Lease
Assignment terminated and was released pursuant to the 1993 Release.
J. Concurrently with entering into the 1993 Indenture, Owner Trustee,
as Assignor, and Indenture Trustee, as Assignee, entered into a Lease Agreement
Assignment and Agreement, dated as of January 26, 1993 (as the same has been
amended, restated, modified or supplemented from time to time, the "Lease
Assignment"), providing for the assignment of the Lease by Owner Trustee to
Indenture Trustee.
K. Owner Trustee and Indenture entered into the First Amendment to
Trust Agreement, dated as of January 26, 1993, amending the 1979 Trust Agreement
(the 1979 Trust Agreement as so amended, as the same has been further amended,
restated, modified or supplemented from time to time, the "Trust Agreement").
L. On January 16, 2004, Lessee gave notice to Owner Trustee of its
election to renew the Lease for an initial renewal period of five (5) years,
pursuant to Sections 19 and 28 of the Lease.
M. Owner Trustee, Indenture Trustee, Owner Participant and Loan
Participant entered into a Note Purchase Agreement, dated as of April 30, 2004,
(as the same has been amended, restated, modified or supplemented from time to
time, the "2004 Note Agreement"), pursuant to which Owner Trustee issued and
Loan Participant purchased $11,193,368.38 of 3.65% Secured Notes (such Secured
2
Exhibit A-3.1
Notes and all Secured Notes issued in exchange therefor or replacement thereof
pursuant to the 2004 Indenture, the "2004 Secured Notes"), the proceeds of which
were used, among other things, to pay in full the 1993 Secured Notes in
accordance with the terms of the 1993 Indenture, which 1993 Indenture was
terminated.
N. Owner Trustee and Indenture Trustee entered into an Amended and
Restated Deed of Trust, dated as of April 30, 2004, (as the same has been
amended, restated, modified or supplemented from time to time, the "2004
Indenture"), providing for, among other things, the Owner Trustee's grant,
bargain, sale, mortgage, warrant, pledge, assignment, transfer and conveyance of
the Trust Indenture Estate and the grant of a security interest therein to
secure the issuance of the 2004 Secured Notes.
O. In connection with the execution of 2004 Note Agreement and the
2004 Indenture, (a) Owner Trustee, Indenture Trustee, Owner Participant and Loan
Participant entered into the Omnibus Amendment, dated as of April 30, 2004, (as
the same has been amended, restated, modified or supplemented from time to time,
the "Omnibus Amendment") to effect certain amendments to the Operative
Documents; (b) PGE, Idaho Power Company, an Idaho corporation (successor to
IPCO) ("Idaho Power"), Power Resources Cooperative (formerly PNGC) ("PRC")
executed and delivered the Consent and Acknowledgement, dated as of April 30,
2004, ("Consent and Acknowledgement"); and (c) PGE executed and delivered the
Consent and Estoppel Certificate, dated April 30, 2004, ("Estoppel
Certificate").
P. Subject to the term and conditions of this Agreement, (i) PGE is
willing to purchase the Equipment pursuant hereto, (ii) Owner Participant is
willing to cause Owner Trustee to sell the Equipment to PGE pursuant hereto and
deliver the Bargain and Sale Deed, Xxxx of Sale and Release to PGE, and to
deliver the Owner Participant Release to PGE, and (iii) Loan Participant is
willing to accept payment in full of the 2004 Secured Notes pursuant hereto and
deliver to PGE the Acknowledgement and Release, and to cause Indenture Trustee
to deliver to PGE the Indenture Trustee Release.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the Parties hereto hereby agree as follows:
ARTICLE I.
DEFINITIONS
"Acknowledgement and Release" shall mean the Acknowledgement and
Release of Loan Participant in the form attached hereto as Exhibit C.
"Adjusted Purchase Price" shall mean $21,250,000, plus an amount
calculated as follows: ($21,250,000) x (90-day LIBOR determined two days before
the Subsequent Purchase Date) x (the number of Subsequent Days divided by 360).
"Agreement" shall have the meaning set forth in the initial paragraph
of this Agreement.
3
Exhibit A-3.1
"Assumption Agreement" shall mean the Assumption and Option Agreement,
dated as of September 1, 1979, among Lessee, 1979 Owner Participant, 1979 Loan
Participants, Owner Trustee, Indenture Trustee and IPCO, as amended by the First
Amendment to Assumption and Option Agreement, dated as of January 26, 1993,
among PGE; 1979 Owner Participant; Principal Mutual Life Insurance Company (as
successor in interest to financial institutions), as Loan Participant; Owner
Trustee; Indenture Trustee; and Idaho Power.
"Bargain and Sale Deed, Xxxx of Sale and Release" shall mean the
Bargain and Sale Deed, Xxxx of Sale and Release in the form attached hereto as
Exhibit A.
"Business Day" shall mean any day other than a Saturday, a Sunday or
other day on which banks are authorized to be closed in the State of Oregon.
"Closing" shall have the meaning set forth in Section 2.2.
"Consent and Acknowledgement" shall have the meaning set forth
paragraph O of in Background.
"Easements" shall have the meaning specified in the Facilities
Agreement.
"Equipment" shall have the meaning specified in the Lease.
"Estoppel Certificate" shall have the meaning set forth in paragraph O
of Background.
"Facilities Agreement" shall have the meaning set forth in paragraph C
of Background.
"Idaho Power" shall have the meaning set forth in paragraph O of
Background.
"IPCO" shall have the meaning set forth in paragraph B of Background.
"Indenture Trustee" shall have the meaning set forth in the initial
paragraph of this Agreement.
"Indenture Trustee Charges" shall mean all costs, expenses, fees and
other charges of any type or kind owing to Indenture Trustee in respect of the
2004 Secured Notes, the Operative Documents, the 2004 Documents, this Agreement
and any other agreements, documents, instruments and certificates in connection
therewith.
"Indenture Trustee Receipt" shall mean the Indenture Trustee Receipt
of Payment substantially in the form attached hereto as Exhibit G.
"Indenture Trustee Release" shall mean the Indenture Trustee Release
in the form attached hereto as Exhibit D.
"Initial Purchase Date" shall mean the later of May 28, 2005 and the
date PGE receives the SEC Order.
4
Exhibit A-3.1
"Lease" shall have the meaning set forth in paragraph A of Background.
"Lease Assignment" shall have the meaning set forth in paragraph J of
Background.
"Lease Charges" shall have the meaning set forth in Section 2.3.
"Lessee" shall mean PGE.
"LIBOR" shall mean the London Interbank Offered Rate as set forth on
the screen for current 3-month LIBOR at xxxx://xxx.xxxxxxxxx.xxx/xxxxxxx/xxxxx.
"Lien" shall mean any lien, mortgage, encumbrance, pledge, charge,
lease, easement, right of others or security interest of any kind, including any
thereof arising under conditional sales or other title retention agreements.
"Loan Participant" shall have the meaning set forth in the initial
paragraph of this Agreement.
"Loan Participant Receipt" shall mean the Loan Participant Receipt of
Payment substantially in the form attached hereto as Exhibit F.
"Loan Participant Charges" shall mean any and all costs, expenses, fees
and other charges of any type or kind owing to Loan Participant in respect of
the 2004 Secured Notes, the Operative Documents, the 2004 Documents, this
Agreement and any other agreements, documents, instruments and certificates in
connection therewith.
"1979 Indenture shall have the meaning set forth in paragraph F of
Background.
"1979 Lease Assignment" shall have the meaning set forth in paragraph G
of Background.
"1979 Loan Participants" shall mean and include each of the
institutions listed in Schedule 1 to the Participation Agreement as a Loan
Participant (as defined in the Participation Agreement) and any other holder of
a 1979 Secured Note, and their respective successors and assigns.
"1979 Owner Participant" shall have the meaning set forth in paragraph
E of Background.
"1979 Secured Notes" shall have the meaning set forth in paragraph F of
Background.
"1979 Trust Agreement" shall have the meaning set forth in paragraph E
of Background.
"1993 Indenture" shall have the meaning set forth in paragraph H of
Background.
"1993 Release" shall have the meaning set forth in paragraph H of
Background.
"1993 Secured Notes" shall have the meaning set forth in paragraph H of
Background.
5
"1998 Notice" shall mean the 1998 Notice of Transfer by Western
America Financial, Inc., as Owner Participant, of its interest to ICON/Boradman
Facility LLC, (a limited liability company consisting of ICON Income Fund Eight
A L.P., ICON Cash Flow Partners L.P. Seven, ICON Cash Flow Partners L.P. Six,
and ICON Cash Flow Partners L.P. Series C).
"Note Payoff Amount" shall mean the amount to pay in full the
principal, accrued interest and premium, if any, on the 2004 Secured Notes as of
the Purchase Date.
"Notices" shall have the meaning set forth in Section 7.1.
"Omnibus Amendment" shall have the meaning set forth in paragraph O of
Background.
"Operating Agreement" shall have the meaning set forth in paragraph B
of Background.
"Operating Agreement Amendment" shall have the meaning set forth in
paragraph B of Background.
"Operative Documents" shall mean the Participation Agreement, the
Trust Agreement, the Lease, the Lease Assignment, the Facilities Agreement, the
Assumption Agreement, and the Original Bills of Sale, as the same may have been
amended, restated, modified or supplemented by the Omnibus Amendment and
otherwise from time to time.
"Original Xxxx of Sale/Original Bills of Sale" shall have the meaning
set forth in paragraph D of Background.
"Owner Participant" shall have the meaning set forth in the initial
paragraph of this Agreement.
"Owner Participant Charges" shall mean any and all costs, expenses,
fees and other charges of any type or kind owing to Owner Participant in respect
of the 2004 Secured Notes, the Operative Documents, the 2004 Documents, this
Agreement and any other agreements, documents, instruments and certificates in
connection therewith.
"Owner Participant Receipt" shall mean the Owner Participant Receipt
of Payment substantially in the form attached hereto as Exhibit H.
"Owner Participant Release" shall mean the Owner Participant Release
in the form attached hereto as Exhibit B.
"Owner Trustee" shall have the meaning set forth in the initial
paragraph of this Agreement.
6
Exhibit A-3.1
"Owner Trustee Charges" shall mean any and all costs, expenses, fees
and other charges of any type or kind owing to Owner Trustee in respect of the
2004 Secured Notes, the Operative Documents, the 2004 Documents, this Agreement
and any other agreements, documents, instruments and certificates in connection
therewith.
"Participation Agreement," shall mean the Participation Agreement,
dated as of September 1, 1979, among PGE, as Lessee; Western America Financial,
Inc., as Owner Participant; the financial institutions listed therein, as Loan
Participants; First National Bank of Oregon, as Owner Trustee; and United States
National Bank of Oregon, as Indenture Trustee, as the same has been amended,
restated, modified or supplemented from time to time.
"Party" shall have the meaning set forth in the initial paragraph of
this Agreement.
"Parties" shall have the meaning set forth in the initial paragraph of
this Agreement.
"Person" shall mean any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
nonincorporated organization or government or any agency or political
subdivision thereof.
"PGE" shall have the meaning set forth in the initial paragraph of
this Agreement.
"PNGC" shall have the meaning set forth in paragraph B of Background.
"PRC" shall have the meaning set forth in paragraph O of Background.
"Purchase Date" shall mean the Initial Purchase Date or the Subsequent
Purchase Date, as the case may be.
"Purchase Price" shall mean (a) $21,250,000 on or before the Initial
Purchase Date, and (b) the Adjusted Purchase Price on the Subsequent Purchase
Date.
"Schedule of Payments" shall mean the Schedule Of Payments
substantially in the form attached hereto as Schedule 2.4.
"SEC Order" shall mean an order of the United States Securities and
Exchange Commission authorizing the purchase of the Equipment by PGE.
"Subsequent Purchase Date" shall mean a Business Day after the Initial
Purchase Date and before June 30, 2005 as shall be agreed to by PGE and Owner
Participant.
"Subsequent Days" shall mean the number of days between May 28, 2005
and the Subsequent Purchase Date, including the Subsequent Purchase Date but
excluding May 28, 2005.
"Trust Agreement" shall have the meaning set forth in paragraph K of
Background.
"Trust Estate" shall have the meaning specified in the Trust
Agreement.
7
Exhibit A-3.1
"Trust Indenture Estate" shall have the meaning specified in the 1993
Indenture.
"2004 Documents" shall mean the 2004 Secured Notes, 2004 Indenture, the
2004 Note Agreement, the Omnibus Amendment, the Consent and Acknowledgement and
the Estoppel Certificate.
"2004 Indenture" shall have the meaning set forth in paragraph N of
Background.
"2004 Note Agreement" shall have the meaning set forth in paragraph M
of Background.
"2004 Secured Notes" shall have the meaning set forth in paragraph M of
Background.
ARTICLE II.
PURCHASE OF EQUIPMENT
SECTION 2.1. Purchase and Sale. Subject to the terms and conditions of
this Agreement and in reliance on the representations and warranties contained
herein or made pursuant hereto, on the Purchase Date, PGE agrees to purchase
from Owner Trustee and Owner Trustee agrees to sell to PGE the Equipment at the
Purchase Price.
SECTION 2.2. Purchase Date and Closing. The closing of the transactions
contemplated by this Article II shall occur at 10:00 a.m., Portland, Oregon
time, on the Purchase Date, or at such later time as may be mutually agreed to
by the parties hereto ("Closing"). All documents and instruments required to be
delivered on the Purchase Date pursuant to this Agreement shall be delivered at
the offices of PGE, or at such other location as may be agreed by PGE and Owner
Participant. All transactions to be effected on the Purchase Date will be deemed
to have taken place concurrently at the Closing, and no transaction will be
deemed to have been completed and no document will be deemed to have been
delivered unless and until all transactions have been completed and all
documents have been delivered.
SECTION 2.3. Payment of Purchase Price. On the Purchase Date, PGE shall
pay the Purchase Price in immediately available funds to the account of Owner
Trustee set forth in Schedule 2.3, as payment in full of (i) the purchase price
of the Equipment, (ii) any and all costs, expenses, fees and other charges of
any type or kind then owing by PGE pursuant to the Lease ("Lease Charges"),
(iii) any and all costs, expenses, fees and other charges of any type or kind
then owing by PGE to any other Party in respect of the 2004 Secured Notes, the
Operative Documents, the 2004 Documents, this Agreement and any other
agreements, documents, instruments and certificates in connection therewith and
herewith.
SECTION 2.4. Application of Funds. On the Purchase Date, immediately
upon confirmation by Owner Trustee of its receipt of the Purchase Price pursuant
to Section 2.3, Owner Trustee shall promptly distribute the same, in immediately
available funds, in the amounts set forth on Schedule 2.4 to the accounts of
Loan Participant, Indenture Trustee, Owner Trustee and Owner Participant set
forth in Schedule 2.3, in the following order and priority: (i) to Loan
Participant the amount necessary to pay in full the Note Payoff Amount and the
Loan
8
Exhibit A-3.1
Participant Charges, (ii) to Indenture Trustee the amount necessary to pay in
full the Indenture Trustee Charges, (iii) to Owner Trustee the amount necessary
to pay in full the Owner Trustee Charges, and (iv) to Owner Participant any and
all remaining funds after the payments in (i), (ii) and (iii) as payment in full
of the purchase price of the Equipment, the Lease Charges and the Owner
Participant Charges. At the time of payment to Owner Participant, Owner Trustee
shall deliver to Owner Participant a completed Schedule of Payment.
SECTION 2.5. Confirmation by Loan Participant, Indenture Trustee and
Owner Participant. On the Purchase Date, (i) Loan Participant, upon confirmation
of receipt of funds in the amount specified in Section 2.4 (i), shall execute
and deliver (a) to Owner Trustee the Loan Participant Receipt, and (b) to PGE
the Acknowledgement and Release, and, unless previously performed, shall perform
all such other acts, including the execution and delivery of such other
agreements, documents, instruments and certificates (which shall be reasonably
acceptable to Loan Participant), which Loan Participant shall be required to
perform pursuant to this Agreement, any of the Operative Documents, or the 2004
Documents, or that are reasonably necessary or advisable in connection with the
transactions contemplated in this Agreement;
(ii) Indenture Trustee, upon confirmation of receipt of funds in the
amount specified in Section 2.4 (ii) and receipt of a copy of the
Acknowledgement and Release, shall execute and deliver (a) to Owner Trustee the
Indenture Trustee Receipt, and (b) to PGE the Indenture Trustee Release, and,
unless previously performed, perform all such other acts, including the
execution and delivery of such other agreements, documents, instruments and
certificates(which shall be reasonably acceptable to Indenture Trustee), which
Indenture Trustee shall be required to perform pursuant to this Agreement, any
of the Operative Documents, or the 2004 Documents, or that are reasonably
necessary or advisable in connection with the transactions contemplated in this
Agreement; and
(iii) Owner Participant, upon confirmation of receipt of funds in the
amount set forth on the Schedule of Payments and receipt of copies of the
Acknowledgement and Release and the Indenture Trustee Release, shall execute and
deliver (a) to Owner Trustee the Owner Participant Receipt and (b) to PGE the
Owner Participant Release, and, unless previously performed, perform all such
other acts, including the execution and delivery of such other agreements,
documents, instruments and certificates(which shall be reasonably acceptable to
Owner Participant), which Owner Participant shall be required to perform
pursuant to this Agreement, any of the Operative Documents, or the 2004
Documents, or that are reasonably necessary or advisable in connection with the
transactions contemplated in this Agreement.
SECTION 2.6. Procedure for Purchase and Sale. On the Purchase Date,
Owner Trustee, upon confirmation of payment by PGE of the Purchase Price in
accordance with Section 2.3, and receipt of the Loan Participant Receipt, the
Indenture Trustee Receipt, the Owner Participant Receipt and copies of the
Acknowledgement and Release, the Indenture Trustee Release and the Owner
Participant Release, shall execute and deliver to PGE the Bargain and Sale Deed,
Xxxx of Sale and Release, and, unless previously performed, perform all such
other acts, including the execution and delivery of such other agreements,
documents, instruments and certificates, which Owner Trustee shall be obligated
to perform pursuant to this Agreement, any of the Operative Documents, the 2004
Documents or in accordance with written instructions from Owner Participant, or
that are reasonably necessary or advisable in connection with the transaction
contemplated in this Agreement.
9
Exhibit A-3.1
SECTION 2.7. Determination of Amounts. No later than one Business Day
prior to the Purchase Date, (i) Loan Participant shall notify Owner Trustee of
the Note Payoff Amount and the Loan Participant Charges, (ii) Indenture Trustee
shall notify Owner Trustee of the Indenture Trustee Charges, and (iii) Owner
Trustee shall notify PGE and Owner Participant of the Note Payoff Amount, the
Loan Participant Charges, the Indenture Trustee Charges and the Owner Trustee
Charges.
ARTICLE III.
CONSENTS
SECTION 3.1. Loan Participant. Subject to the terms and conditions of
this Agreement, Loan Participant hereby (i) agrees and consents to the
transactions set forth in Article II of this Agreement, including, without
limitation, (a) the payment in full of the principal, interest and premium, if
any, of the 2004 Secured Notes, (b) the termination and cancellation of the 2004
Secured Notes, (c) the sale to PGE of the Equipment, and (d) the termination and
cancellation of the Note Purchase Agreement, the Operative Documents to which it
is a party, and the 2004 Documents to which it is a party, except with respect
to the provisions of any thereof that by their terms survive the termination
thereof; and (ii) to the extent required under the 2004 Notes, the Note Purchase
Agreement, the Operative Documents and the 2004 Documents, authorizes and
directs Owner Trustee and Indenture Trustee to perform all acts and obligations
of each thereof as set forth in Article II of this Agreement.
SECTION 3.2. Owner Participant. Subject to the terms and conditions of
this Agreement, Owner Participant hereby (i) agrees and consents to the
transactions set forth in Article II of this Agreement, including, without
limitation, (a) the sale to PGE of the Equipment, (b) the payment in full of the
principal, interest and premium, if any, of the 2004 Secured Notes, (c) the
termination and cancellation of the 2004 Secured Notes, and (d) the termination
and cancellation of the Note Purchase Agreement, the Operative Documents to
which it is a party, and the 2004 Documents to which it is a party, except with
respect to the provisions of any thereof that by their terms survive the
termination thereof; and (ii) to the extent required under the 2004 Notes, the
Note Purchase Agreement, the Operative Documents and the 2004 Documents,
authorizes and directs Owner Trustee and Indenture Trustee to perform all acts
and obligations of each thereof as set forth in Article II of this Agreement.
ARTICLE IV.
CONDITIONS PRECEDENT
The obligation of the Parties at the Closing shall be subject to the
fulfillment to the satisfaction of, or waiver by, the applicable Party prior to
or on the Purchase Date, of the following conditions precedent:
(a) Authorization, Execution and Delivery of Documents. The following
documents shall have been duly authorized, executed and delivered by the
respective parties thereto, shall be in the form attached hereto, shall be
10
Exhibit A-3.1
in full force and effect on the Purchase Date without any event or condition
having occurred or existing that constitutes, or with the giving of notice or
lapse of time or both would constitute, a default thereunder or breach thereof
or would give any party thereto the right to terminate any thereof, and an
executed counterpart of each thereof shall have been delivered to the Parties as
indicated hereinafter, with a copy thereof to each other Party:
(i) this Agreement, delivered to each Party;
(ii) the Acknowledgement and Release, delivered to PGE;
(iii) the Bargain and Sale Deed, Xxxx of Sale and Release,
delivered to PGE;
(iv) the Indenture Trustee Release, delivered to PGE; and
(v) the Owner Participant Release, delivered to PGE.
(b) Filings and Recordings. All Uniform Commercial Code termination
statements necessary or advisable, in the reasonable opinion of PGE, to release
the lien and first priority security interest in the Trust Estate and the Trust
Indenture Estate shall have been duly filed or recorded or delivered to PGE.
(c) Title to Equipment. Owner Trustee shall hold good and marketable
title to the Equipment under the Bills of Sale, free and clear of all Liens,
except for Liens specified in the Bills of Sale for the Equipment, Liens created
under the Uniform Commercial Code financing statements listed on Schedule 4
hereto (for which Uniform Commercial Code termination statements have been
delivered to PGE), and Liens, if any, created by PGE.
(d) Easements. Owner Trustee shall hold good and marketable title to
the Easements, free and clear of all Liens, except as specified in Exhibit E to
the Facilities Agreement, Liens created under the Uniform Commercial Code
financing statements listed on Schedule 4 hereto (for which Uniform Commercial
Code termination statements have been delivered to PGE), and Liens, if any,
created by PGE.
(e) Consents and Approvals of PGE. All actions, approvals, consents,
waivers, exemptions, variances, orders, or authorizations required to be taken,
given or obtained, as the case may be, by or from any Federal, state or other
governmental authority or agency, or by or from any trustee or holder of any
indebtedness or obligations of PGE, that are necessary for the purchase of the
Equipment, or otherwise in connection with the transactions contemplated herein
shall have been duly taken, given or obtained, as the case may be, shall be in
full force and effect on the Purchase Date and shall be adequate to authorize
the consummation of the transactions contemplated herein, and copies thereof
shall have been delivered to the Parties.
(0 Consents and Approvals of Owner Trustee and Indenture Trustee. Each
of Owner Trustee and Indenture Trustee shall have obtained all appropriate
regulatory or other governmental approvals, licenses or permits of any kind
required for their respective
11
Exhibit A-3.1
participation in the transactions contemplated hereby.
(g) Consents and Approvals of Owner Participant and Loan Participant.
Each of Owner Participant and Loan Participant shall have all appropriate
regulatory or other governmental approvals, licenses or permits of any kind
required for their respective participation in the transactions contemplated
hereby.
(h) Litigation. No action or proceeding shall have been instituted nor
shall governmental action before any court or governmental authority or agency
be threatened nor shall any order, judgment or decree have been issued or
proposed to be issued by any court or governmental authority or agency at the
time of the Purchase Date to set aside, restrain, enjoin or prevent the
consummation of this Agreement or the transactions contemplated hereby.
(i) Officers' Certificates. There shall have been delivered:
(i) an Officer's Certificate of PGE, in the form attached
hereto as Exhibit I, dated as of the Purchase Date;
(ii) an Officer's Certificate of Owner Participant, in the
form attached hereto as Exhibit J, dated as of the Purchase
Date;
(iii) an Officer's Certificate of Owner Trustee, in the form
attached hereto as Exhibit K, dated as of the Purchase Date;
(iv) an Officer's Certificate of Indenture Trustee, in the
form attached hereto as Exhibit L, dated as of the Purchase
Date; and
(v) an Officer's Certificate of Loan Participant, in the form
attached hereto as Exhibit M, dated as of the Purchase Date.
(j) Additional Certificates. Each of PGE and Owner Participant shall
have delivered a certificate of its secretary or an assistant secretary, dated
the Purchase Date, in each case substantially in the form of the respective
certificates attached hereto as Exhibit N-1 and Exhibit N-2, respectively.
(k) No Defaults. No Party, as to itself, shall have given notice of, or
be aware of any event or condition having occurred or existing that constitutes,
or with the giving of notice or lapse of time or both would constitute, a
material default under or a material breach of any of the Operative Documents or
the 2004 Documents to which it is a party.
(l) Performance. Each Party to this Agreement shall have performed and
complied with all agreements and conditions contained herein, and in any
Operative Document or 2004 Document to which it is a party, required to be
performed or complied with by it on or prior to the Closing.
(m) Opinions of Counsel. The following opinions shall have been
delivered:
12
Exhibit A-3.1
(i) Opinion of Xxxxxxx X. Xxxxxxx, General Counsel for PGE,
dated the Purchase Date, in the form attached hereto as
Exhibit O.
(ii) Opinion of Counsel for Owner Participant, dated the
Purchase Date, in the form attached hereto as Exhibit P.
(n) Payment of Taxes. All taxes, fees and other charges payable in
connection with the execution, delivery, recordation and filing of all the
documents and instruments referred to in this Agreement shall have been paid in
full by PGE, except any thereof with respect to the Uniform Commercial Code
termination statements not filed or recorded, but delivered to PGE pursuant to
paragraph (b) of this Section.
ARTICLE V.
COVENANTS, REPRESENTATIONS AND WARRANTIES
SECTION 5.1. Covenants, Representations and Warranties of Owner
Participant. Owner Participant represents and warrants to and with each of the
other Parties hereto that on the date of this Agreement and on the Purchase
Date:
(a) Organization. Owner Participant is a limited liability company,
validly existing and in good standing under the laws of the State of Delaware,
and has the power and authority under its operating agreement to carry on its
business as now conducted, and to enter into and perform its obligations under
this Agreement.
(b) Approvals. This Agreement has been duly authorized by all
necessary action, including any approval or consent of the members of Owner
Participant or of any trustee or holder of any indebtedness or obligations of
Owner Participant, on the part of Owner Participant, and neither the execution
and delivery hereof, nor compliance by Owner Participant with any of the terms
and provisions hereof, nor consummation of the transactions contemplated hereby
does or will (i) contravene any United States Federal law or any state, law or
any rule or regulation thereunder, or any order or judgment applicable to or
binding on Owner Participant or (ii) contravene or conflict with or constitute a
material default of any indenture, instrument or agreement to which Owner
Participant is a party or is subject or by which it, or its property, is bound.
(c) Binding. This Agreement has been duly executed and delivered by
Owner Participant and constitutes, the legal, valid, and binding obligation of
Owner Participant enforceable against Owner Participant in accordance with the
terms hereof, except as such enforceability may be limited by applicable
bankruptcy, insolvency or similar laws from time to time in effect that affect
creditors' rights generally.
(d) Proceedings. There are no pending or, to the knowledge of Owner
Participant, threatened actions or proceedings before any court or
administrative agency (i) to which Owner Participant is a party that, if
adversely determined to Owner Participant, would materially
13
Exhibit A-3.1
adversely affect the ability of Owner Participant to perform its obligations
hereunder, or (ii) with respect to this Agreement, or to any of the Operative
Documents or the 2004 Documents to which Owner Participant is a party.
SECTION 5.2. Covenants, Representations and Warranties of Owner
Trustee. Owner Trustee covenants, represents and warrants to each of the other
Parties hereto that on the date of this Agreement and on the Purchase Date:
(a) Organization. Owner Trustee is a national banking association duly
organized, validly existing and in good standing under the laws of the United
States, and has the corporate power and authority to enter into and perform its
obligations under this Agreement.
(b) Approvals. This Agreement has been duly authorized by all
necessary corporate action, including any approval or consent of the
stockholders of Owner Trustee or any trustee or holder of any indebtedness or
obligations of Owner Trustee, on the part of Owner Trustee, and neither the
execution and delivery hereof, nor compliance by Owner Trustee with any of the
terms and provisions hereof, nor consummation of the transactions contemplated
hereby does or will (i) contravene any United States Federal law or any state,
law or any rule or regulation thereunder, governing the banking or trust powers
of, or any order or judgment applicable to or binding on Owner Trustee or (ii)
contravene or conflict with or constitute a material default of any indenture,
instrument or agreement to which Owner Trustee is a party or is subject or by
which it, or its property, is bound.
(c) Binding. This Agreement has been duly executed and delivered by
Owner Trustee and constitutes a legal, valid and binding obligation of Owner
Trustee enforceable against Owner Trustee in accordance with the terms hereof
except as such enforceability may be limited by applicable bankruptcy,
insolvency or similar laws from time to time in effect that affect creditors'
rights generally or by the general principles of equity.
(d) Proceedings. There are no pending or, to the knowledge of Owner
Trustee, threatened actions or proceedings before any court or administrative
agency (i) to which Owner Trustee is a party, or that relate to the banking or
trust powers of Owner Trustee that, if determined adversely to the position of
Owner Trustee would materially adversely affect the ability of Owner Trustee to
perform its obligations hereunder, or (ii) with respect to this Agreement, or to
any of the Operative Documents or the 2004 Documents to which Owner Trustee is a
Party.
(e) Title. Owner Trustee has (i) good and marketable title to the
Equipment under the Bills of Sale, free and clear of all Liens, except for Liens
specified in the Bills of Sale for the Equipment, Liens created under the
Uniform Commercial Code financing statements listed on Schedule 4 hereto (for
which Uniform Commercial Code termination statements have been delivered to
PGE), and Liens, if any, created by PGE, and (ii) good and marketable title to
the Easements, free and clear of all Liens, except as specified in Exhibit E to
the Facilities Agreement, Liens created under the Uniform Commercial Code
financing statements listed on Schedule 4 hereto (for which Uniform Commercial
Code termination statements have been delivered to PGE), and Liens, if any,
created by PGE.
14
Exhibit A-3.1
SECTION 5.3. Covenants, Representations and Warranties of Indenture
Trustee. Indenture Trustee covenants, represents and warrants to each of the
other Parties hereto that on the date of this Agreement and on the Purchase
Date:
(a) Organization. Indenture Trustee is a national banking association
duly organized, validly existing and in good standing under the laws of the
United States, and has the corporate power and authority to enter into and
perform its obligations under this Agreement.
(b) Approvals. This Agreement has been duly authorized by all
necessary corporate action, including any approval or consent of stockholders of
Indenture Trustee or approval or consent of any trustee or holder of any
indebtedness or obligations of Indenture Trustee, on the part of Indenture
Trustee, and neither the execution and delivery hereof, nor compliance by
Indenture Trustee with any of the terms and provisions hereof, nor consummation
of the transactions contemplated hereby does or will (i) contravene any United
States Federal law or any state, law or any rule or regulation thereunder,
governing the banking or trust powers of, or any order or judgment applicable to
or binding on Indenture Trustee or (ii) contravene or conflict with or
constitute a material default of any indenture, instrument or agreement to which
Indenture Trustee is a party or is subject or by which it, or its property, is
bound.
(c) Binding. This Agreement has been duly executed and delivered by
Indenture Trustee and constitutes a legal, valid and binding obligation of
Indenture Trustee enforceable against Indenture Trustee in accordance with the
terms hereof except as such enforceability may be limited by applicable
bankruptcy, insolvency or similar laws from time to time in effect that affect
creditors' rights generally or by the general principles of equity.
(d) Proceedings. There are no pending or, to the knowledge of
Indenture Trustee, threatened actions or proceedings before any court or
administrative agency (i) to which Indenture Trustee is a party, or that relate
to the banking or trust powers of Indenture Trustee that, if determined
adversely to the position of Indenture Trustee would materially adversely affect
the ability of Indenture Trustee to perform its obligations hereunder, or (ii)
with respect to this Agreement, or to any of the Operative Documents or the 2004
Documents to which Indenture Trustee is a party.
SECTION 5.4. Covenants, Representations and Warranties of Loan
Participant. Loan Participant represents and warrants to and with each of the
other Parties hereto that on the date of this Agreement and on the Purchase
Date:
(a) Organization. Loan Participant is a corporation validly existing
and in good standing under the laws of the State of Iowa, and has the corporate
power and authority to carry on its business as now conducted, and to enter into
and perform its obligations under this Agreement.
(b) Approvals. This Agreement has been duly authorized by all
necessary corporate action, including any approval or consent of stockholders of
Loan Participant or of any trustee or holder of any indebtedness or obligations
of Loan Participant, on the part of Loan Participant, and neither the execution
and delivery hereof, nor compliance by Loan Participant with any of
15
Exhibit A-3.1
the terms and provisions hereof, nor consummation of the transactions
contemplated hereby does or will (i) contravene any United States Federal law or
any state law, or any rule or regulation thereunder, or any order or judgment
applicable to or binding on Loan Participant or (ii) contravene or conflict with
or constitute a material default of any indenture, instrument or agreement to
which Loan Participant is a party or is subject or by which it, or its property,
is bound.
(c) Binding. This Agreement has been duly executed and delivered by
Loan Participant and constitutes a legal, valid and binding obligation of Loan
Participant enforceable against Loan Participant in accordance with the terms
hereof except as such enforceability may be limited by applicable bankruptcy,
insolvency or similar laws from time to time in effect that affect creditors'
rights generally or by the general principles of equity.
(d) Proceedings. There are no pending or, to the knowledge of Loan
Participant, threatened actions or proceedings before any court or
administrative agency (i) to which Loan Participant is a party that, if
adversely determined to Loan Participant, would materially adversely affect the
ability of Loan Participant to perform its obligations hereunder, or (ii) with
respect to this Agreement, or to any of the Operative Documents or the 2004
Documents to which Loan Participant is a party.
SECTION 5.5. Covenants, Representations and Warranties of PGE. PGE
represents and warrants to and with each of the other Parties hereto that on the
date of this Agreement:
(a) Organization. PGE is a corporation, validly existing and in good
standing under the laws of the State of Oregon, and has the corporate power and
authority to carry on its business as now conducted, and to enter into and
perform its obligations under this Agreement.
(b) Approvals. This Agreement has been duly authorized by all
necessary corporate action (except the approval or consent of the stockholder of
PGE) on the part of PGE, and all actions, approvals, consents, waivers, orders,
or authorizations (except the SEC Order) by or from any Federal, state or other
governmental authority or agency, or by or from any trustee or holder of any
indebtedness or obligations of PGE, or by or from any other Person have been
taken, given or obtained, and the execution, delivery and compliance by PGE with
any of the terms and provisions hereof, does not nor, following receipt of the
SEC Order, will the consummation of the transactions contemplated hereby (i)
contravene any United States Federal law or any state law, or any rule or
regulation thereunder, or any order or judgment applicable to or binding on PGE
or (ii) contravene or conflict with or constitute a material default of any
indenture, instrument or agreement to which PGE is a party or is subject or by
which it, or its property, is bound.
(c) Binding. This Agreement has been duly executed and delivered by
PGE and constitutes a legal, valid and binding obligation of PGE enforceable
against PGE in accordance with the terms hereof except as such enforceability
may be limited by applicable bankruptcy, insolvency or similar laws from time to
time in effect that affect creditors' rights generally or by the general
principles of equity.
16
Exhibit A-3.1
(d) Proceedings. There are no pending or, to the knowledge of PGE,
threatened actions or proceedings before any court or administrative agency (i)
to which PGE is a party that, if adversely determined to PGE, would materially
adversely affect the ability of PGE to perform its obligations hereunder, or
(ii) with respect to this Agreement, or to any of the Operative Documents or the
2004 Documents to which PGE is a party.
SECTION 5.6. Covenants, Representations and Warranties of PGE on
Purchase Date. PGE representations and warranties to each of the other Parties
hereto that on the Purchase Date:
(a) Organization, Binding and Proceedings. Each of the representations
and warranties set forth in Section 5.5 (a), (c) and (d) are true and correct.
(b) Approvals. This Agreement has been duly authorized by all
necessary corporate action, including any approval or consent of the stockholder
of PGE, on the part of PGE, and all actions, approvals, consents, waivers,
orders, or authorizations, including the SEC Order, by or from any Federal,
state or other governmental authority or agency, or by or from any trustee or
holder of any indebtedness or obligations of PGE, or by or from any other Person
have been taken, given or obtained, and neither the execution and delivery
hereof, nor compliance by PGE with any of the terms and provisions hereof, nor
consummation of the transactions contemplated hereby (i) does or will contravene
any United States Federal law or any state law, or any rule or regulation
thereunder, or any order or judgment applicable to or binding on PGE or (ii)
contravene or conflict with or constitute a default of any indenture, instrument
or agreement to which PGE is a party or is subject or by which it, or its
property, is bound.
SECTION 5.7. No Advisers. Each of PGE, Loan Participant and Owner
Participant, severally but not jointly, hereby represents that if it has
retained any broker, finder or financial adviser in connection with the
transactions contemplated by this Agreement that such Party shall be solely
responsible for the payment of any and all fees, charges or expenses with
respect thereto.
SECTION 5.8. Legal Fees. Each Party shall be solely responsible for
the payment of any and all fees, charges or expenses of its legal counsel.
ARTICLE VI.
TERMINATION
In the event that the Closing shall not take place on or before June
30, 2005, Owner Participant may upon Notice terminate this Agreement in its
entirety and thereafter, this Agreement shall be of no force or effect, and no
Party shall have any liability of any type or kind, under any theory in law or
equity to any other Party or to any other Person, and no Party shall be liable
to or with respect to any payment, costs, fees, charge or expenses incurred by
another Party or Person, except for the usual and customary fees and charges of
Indenture Trustee and Owner Trustee in accordance with the Operative Documents
and the 2004 Documents.
17
Exhibit A-3.1
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. Notices. All notices, consents, directions, approvals,
instructions, requests and other communications ("Notices") required or
permitted by the terms hereof shall be in writing to each Party at its address
set forth on Schedule 7.1, and shall be deemed to have been duly made and
delivered if (i) mailed by United States registered or certified mail, with
return receipt requested and postage prepaid, (ii) delivered to a nationally
recognized overnight delivery service, postage prepaid, (iii) sent by facsimile
transmission, with receipt confirmed, (iv) sent by e-mail with receipt
confirmed, or (v) hand delivered; provided that if Notice is not given during
the normal business hours of the recipient, such Notice shall be deemed to have
been given at the opening of business on the next Business Day for the
recipient. Notices sent as provided above shall become effective (a) five
Business Days after being deposited in the United States mail, (b) when received
if delivered by hand or nationally recognized overnight delivery service, (c)
upon the sender's receipt of an acknowledgement from the intended recipient if
sent by facsimile transmission or e-mail, and (d) upon receipt of any other
written acknowledgement from recipient.
SECTION 7.2. Counterparts. This Agreement may be executed by the
Parties in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
SECTION 7.3. Amendments. Neither this Agreement nor any of the terms
hereof may be terminated, amended, supplemented, waived or modified orally, but
only by an instrument in writing signed by the Party against which the
enforcement of the termination, amendment, supplement, waiver or modification is
sought; and no such termination, amendment, supplement, waiver or modification
shall be effective unless a signed copy thereof shall have been delivered to,
and consented to by, each Party hereto.
SECTION 7.4. Headings. The Table of Contents and headings of the
various Sections of this Agreement are for convenience of reference only and
shall not modify, define, expand or limit any of the terms or provisions hereof.
SECTION 7.5. Parties in Interest. The terms of this Agreement shall be
binding upon, and inure to the benefit of, the Parties hereto and their
successors and assigns.
SECTION 7.6. Governing Law. This Agreement has been delivered in, and
shall in all respects be governed by, and construed in accordance with, the laws
of the State of New York.
SECTION 7.7. Method of Payment. All amounts required to be paid by any
Party to any other Party hereunder or under the 2004 Notes, any of the Operative
Documents or any of the 2004 Documents shall be paid in such freely transferable
coin or currency of the United States of America as at the time of payment shall
be legal tender for the payment of public and private debts.
SECTION 7.8. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such
18
Exhibit A-3.1
prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 7.9. Fiduciary Capacity of Owner Trustee and Indenture
Trustee. Each of the Owner Trustee and Indenture Trustee are entering into this
Agreement in their fiduciary capacities under the Trust Agreement and the
Indenture, respectively, and shall have no personal liability hereunder except
to the extent specifically expressed herein or in the Indenture and, in respect
of the Owner Trustee, the Trust Agreement.
[SIGNATURE PAGES FOLLOW]
19
Exhibit A-3.1
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
duly executed by their respective officers thereunto duly authorized as of the
day and year first above written.
PORTLAND GENERAL ELECTRIC COMPANY
/s/ Xxxxx X. Xxxx
____________________________________
Name: Xxxxx X. Xxxx
Title: Executive Vice President, Finance,
Chief Financial Officer and Treasurer
ICON/XXXXXXXX FACILITY LLC
By: ICON Cash Flow Partners L,P. Seven
ICON Cash Flow Partners L.P. Six
ICON Income Fund Eight A L.P.
Its sole members
By: ICON Capital Corp.,
each such entity's general partner
/s/ Xxxx X. Xxxx
By: ______________________________
Xxxx X. Xxxx
Name: ____________________________
Senior Vice President
Title: _____________________________
XXXXX FARGO BANK NORTHWEST, National
Association, not in its individual capacity but
solely as Owner Trustee
/s/ Xxxxxxx X. Xxxxxx
By: ______________________________
Xxxxxxx X.Xxxxxx
Name: ____________________________
Vice President
Title: _____________________________
20
Exhibit A-3.1
U.S. BANK NATIONAL
ASSOCIATION, not in its
individual capacity but
solely as Indenture Trustee
/s/ Xxxxx X. XxXxxxxx
By: ______________________________
Xxxxx X. XxXxxxxx
Name: ____________________________
Vice President
Title: _____________________________
PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Global Investors, LLC
a Delaware limited liability company,
its authorized signatory
/s/ Xxx X. Xxxxx
By: ______________________________
Xxx X. Xxxxx, Counsel
Name:____________________________
Title:_____________________________
/s/ Xxxxxxx X. Xxxxx
By: ______________________________
Xxxxxxx X. Xxxxx, Counsel
Name:____________________________
Title:_____________________________
21
