Exhibit C(2)
______________________________________________________________________________
PORTLAND GENERAL ELECTRIC COMPANY
TO
HSBC BANK USA
(FORMERLY THE MARINE MIDLAND TRUST
COMPANY OF NEW YORK)
Trustee.
Fifty-first Supplemental Indenture
Dated: October 1, 2002
$100,000,000 First Mortgage Bonds,
5.6675% Series due 2012
Supplemental to Indenture of Mortgage and Deed of Trust,
dated July 1, 1945 of Portland General Electric Company.
THIS INSTRUMENT GRANTS A SECURITY INTEREST BY A TRANSMITTING UTILITY
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS
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This FIFTY-FIRST SUPPLEMENTAL INDENTURE (hereinafter this
"Supplemental Indenture"), dated October 1, 2002 is made by and between Portland
General Electric Company, an Oregon corporation (hereinafter called the
"Company"), and HSBC Bank USA (formerly The Marine Midland Trust Company of New
York), a New York banking corporation and trust company (hereinafter called the
"Trustee").
WHEREAS, the Company has heretofore executed and delivered its
Indenture of Mortgage and Deed of Trust (herein sometimes referred to as the
"Original Indenture"), dated July 1, 1945, to the Trustee to secure an issue of
First Mortgage Bonds of the Company; and
WHEREAS, bonds in the aggregate principal amount of $34,000,000 have
heretofore been issued under and in accordance with the terms of the Original
Indenture as bonds of an initial series designated "First Mortgage Bonds, 3-1/8%
Series due 1975" (herein sometimes referred to as the "Bonds of the 1975
Series"); and
WHEREAS, the Company has heretofore executed and delivered to the
Trustee several supplemental indentures which provided, among other things, for
the creation or issuance of several new series of First Mortgage Bonds under the
terms of the Original Indenture as follows:
Supplemental
Indenture Dated Series Designation Principal Amount
--------- ----- ------------------ ----------------
First 11-1-47 3-1/2 % Series due 1977 $ 6,000,000 (1)
Second 11-1-48 3-1/2 % Series due 1977 4,000,000 (1)
Third 5-1-52 3-1/2 % Second Series due 1977 4,000,000 (1)
Fourth 11-1-53 4-1/8 % Series due 1983 8,000,000 (2)
Fifth 11-1-54 3-3/8 % Series due 1984 12,000,000 (1)
Sixth 9-1-56 4-1/4 % Series due 1986 16,000,000 (1)
Seventh 6-1-57 4-7/8 % Series due 1987 10,000,000 (1)
Eighth 12-1-57 5-1/2 % Series due 1987 15,000,000 (3)
Ninth 6-1-60 5-1/4 % Series due 1990 15,000,000 (1)
Tenth 11-1-61 5-1/8 % Series due 1991 12,000,000 (1)
Eleventh 2-1-63 4-5/8 % Series due 1993 15,000,000 (1)
Twelfth 6-1-63 4-3/4 % Series due 1993 18,000,000 (1)
Thirteenth 4-1-64 4-3/4 % Series due 1994 18,000,000 (1)
Fourteenth 3-1-65 4.70 % Series due 1995 14,000,000 (1)
Fifteenth 6-1-66 5-7/8 % Series due 1996 12,000,000 (1)
Sixteenth 10-1-67 6.60 % Series due October 1, 1997 24,000,000 (1)
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Supplemental
Indenture Dated Series Designation Principal Amount
--------- ----- ------------------ ----------------
Seventeenth 4-1-70 8-3/4 % Series due April 1, 1977 20,000,000 (1)
Eighteenth 11-1-70 9-7/8 % Series due November 1, 2000 20,000,000 (4)
Nineteenth 11-1-71 8 % Series due November 1, 2001 20,000,000 (4)
Twentieth 11-1-72 7-3/4 % Series due November 1, 2002 20,000,000 (4)
Twenty-first 4-1-73 7.95 % Series due April 1, 2003 35,000,000 (4)
Twenty-second 10-1-73 8-3/4 % Series due October 1, 2003 17,000,000 (4)
Twenty-third 12-1-74 10-1/2 % Series due December 1, 1980 40,000,000 (1)
Twenty-fourth 4-1-75 10 % Series due April 1, 1982 40,000,000 (1)
Twenty-fifth 6-1-75 9-7/8 % Series due June 1, 1985 27,000,000 (1)
Twenty-sixth 12-1-75 11-5/8 % Series due December 1, 2005 50,000,000 (4)
Twenty-seventh 4-1-76 9-1/2 % Series due April 1, 2006 50,000,000 (4)
Twenty-eighth 9-1-76 9-3/4 % Series due September 1, 1996 62,500,000 (4)
Twenty-ninth 6-1-88 8-3/4 % Series due June 1, 2007 50,000,000 (4)
Thirtieth 10-1-78 9.40 % Series due January 1, 1999 25,000,000 (4)
Thirty-first 11-1-78 9.80 % Series due November 1, 1998 50,000,000 (4)
Thirty-second 2-1-80 13-1/4 % Series due February 1, 2000 55,000,000 (4)
Thirty-third 8-1-80 13-7/8 % Series due August 1, 2010 75,000,000 (4)
Thirty-sixth 10-1-82 13-1/2 % Series due October 1, 2012 75,000,000 (4)
Thirty-seventh 11-15-84 11-5/8 % Extendable Series A due 75,000,000 (4)
November 15, 1999
Thirty-eighth 6-1-85 10-3/4 % Series due June 1, 1995 60,000,000 (4)
Thirty-ninth 3-1-86 9-5/8 % Series due March 1, 2016 100,000,000 (4)
Xxxxxxxx 00-0-00 Xxxxxx Xxxx Note Series 200,000,000
Xxxxx-xxxxx 00-0-00 Xxxxxx Xxxx Note Series I 150,000,000
Forty-second 4-1-93 7-3/4 % Series due April 15, 2023 150,000,000
Forty-third 7-1-93 Medium Term Notes Series II 75,000,000
Forty-fourth 8-1-94 Medium Term Notes Series III 75,000,000 (1)
Forty-fifth 5-1-95 Medium Term Notes Series IV 75,000,000
Forty-sixth 8-1-96 Medium Term Notes Series V 50,000,000 (1)
Forty-seventh 12-14-01 Second Series due 2002 150,000,000
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Supplemental
Indenture Dated Series Designation Principal Amount
--------- ----- ------------------ ----------------
Forty-eighth 6-1-02 Collateral Series due 2003 72,000,000
Forty-ninth 6-1-02 Second Collateral Series due 2003 150,000,000
Fiftieth 10-1-02 8-1/8 % Series Due 2010 150,000,000
(1) Paid in full at maturity.
(2) This entire issue of Bonds was redeemed out of proceeds from the sale of
First Mortgage Bonds, 3-3/8% Series due 1984.
(3) This entire issue of Bonds was redeemed out of proceeds from the sale of
First Mortgage Bonds, 4-5/8% Series due 1993.
(4) Redeemed in full prior to maturity.
which bonds are sometimes referred to herein as the "Bonds of the 1977 Series,"
"Bonds of the 1977 Second Series," "Bonds of the 1983 Series," "Bonds of the
1984 Series," "Bonds of the 1986 Series," "Bonds of the 4-7/8% Series due 1987,"
"Bonds of the 5 1/2% Series due 1987," "Bonds of the 1990 Series," "Bonds of the
1991 Series," "Bonds of the 4-5/8% Series due 1993," "Bonds of the 4 3/4% Series
due 1993," "Bonds of the 1994 Series," "Bonds of the 1995 Series," "Bonds of the
1996 Series," "Bonds of the 1997 Series," "Bonds of the 1977 Third Series,"
"Bonds of the 2000 Series," "Bonds of the 2001 Series," "Bonds of the 2002
Series," "Bonds of the 2003 Series," "Bonds of the 2003 Second Series," "Bonds
of the 1980 Series," "Bonds of the 1982 Series," "Bonds of the 1985 Series,"
"Bonds of the 2005 Series," "Bonds of the 2006 Series," "Bonds of the 1996
Second Series," "Bonds of the 2007 Series," "Bonds of the 1999 Series," "Bonds
of the 1998 Series," "Bonds of the 2000 Second Series," "Bonds of the 2010
Series," "Bonds of the 2012 Series," "Bonds of the Extendable Series A," "Bonds
of the 1995 Second Series," "Bonds of the 2016 Series," "Bonds of the Medium
Term Note Series," "Bonds of the Medium Term Note Series I," "Bonds of the 2023
Series," "Bonds of the Medium Term Note Series II," "Bonds of the Medium Term
Note Series III," "Bonds of the Medium Term Note Series IV," "Bonds of the
Medium Term Note Series V," "Bonds of the 2002 Second Series," "Bonds of the
Collateral Series," "Bonds of the Second Collateral Series," and "Bonds of the
2010 Second Series," respectively; and
WHEREAS, the Original Indenture provides that the Company and the
Trustee, subject to the conditions and restrictions in the Original Indenture
contained, may enter into an indenture or indentures supplemental thereto, which
shall thereafter form a part of said Original Indenture, among other things, to
mortgage, pledge, convey, transfer or assign to the Trustee and to subject to
the lien of the Original Indenture with the same force and effect as though
included in the granting clauses thereof, additional properties acquired by the
Company after the execution and delivery of the Original Indenture, and to
provide for the creation of any series of bonds (other than the Bonds of the
1975 Series), designating the series to be created and specifying the form and
provisions of the bonds of such series as therein provided or permitted, and to
provide a sinking, amortization, replacement or other analogous fund for the
benefit of all or any of the bonds of any one or more series, of such character
and of such amount, and upon such terms and conditions as shall be contained in
such supplemental indenture; and
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WHEREAS, the Company has heretofore executed and delivered to the
Trustee fifty supplemental indentures amending in certain respects the Original
Indenture (such Original Indenture as so supplemented and amended is hereinafter
referred to as the "Mortgage"); and
WHEREAS, the Company desires to further amend the Mortgage in certain
respects pursuant to Section 17.01 of the Original Indenture, and the Trustee
has agreed to such amendments; and
WHEREAS, the Company desires to provide for the creation of a new
series of bonds to be known as "First Mortgage Bonds, 5.6675% Series due 2012"
(sometimes herein referred to as the "Bonds of the 2012 Second Series"), and to
specify the form and provisions of the Bonds of the 2012 Second Series, and to
mortgage, pledge, convey, transfer or assign to the Trustee and to subject to
the lien of the Mortgage certain additional properties acquired by the Company
since the execution and delivery of the Original Indenture; and
WHEREAS, the Company intends at this time to issue $100,000,000
aggregate principal amount of Bonds of the 2012 Second Series under and in
accordance with the terms of the Mortgage and this Supplemental Indenture (the
Mortgage as so supplemented and amended by this Supplemental Indenture
hereinafter referred to as the "Indenture"); and
WHEREAS, the Bonds of the 2012 Second Series and the Trustee's
authentication certificate to be executed on the Bonds of the 2012 Second Series
are to be substantially in the following forms, respectively:
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(Form of Bond of the 5.6675% Series due 2012)
[Face of Bond]
THIS BOND HAS BEEN PURCHASED FOR INVESTMENT AND HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS. NEITHER THIS BOND NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE OFFERED, RESOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND APPLICABLE STATE SECURITIES LAWS.
Financial Guaranty Insurance Policy No. 20049BE, or any successor policy (the
"Policy"), with respect to payments due for principal of and interest on this
bond has been issued by Ambac Assurance Corporation ("Ambac"). The Policy has
been delivered to The Bank of New York, New York, New York, as the Insurance
Trustee under said Policy and will be held by such Insurance Trustee or any
successor insurance trustee. The Policy is on file and available for inspection
at the principal office of the Insurance Trustee and a copy thereof may be
secured from Ambac or the Insurance Trustee. All payments required to be made
under the Policy shall be made in accordance with the provisions thereof. The
owner of this bond acknowledges and consents to the rights, including
subrogation rights, of Ambac as more fully set forth in the Policy and the
Indenture.
No. _____ $__________
PORTLAND GENERAL ELECTRIC COMPANY
FIRST MORTGAGE BOND, 5.6675% SERIES DUE 2012
Portland General Electric Company, an Oregon corporation (hereinafter
sometimes called the "Company"), for value received, hereby promises to pay to
________________________, or registered assigns, the principal sum of
_______________ Dollars ($_____________) on October 25, 2012 (the "Maturity
Date"), except to the extent redeemed or repaid prior to the Maturity Date, and
to pay interest thereon semi-annually on October 15 and April 15 (each an
"Interest Payment Date") each year at the rate of 5.6675% per annum (calculated
on the basis of a 360-day year of twelve 30-day months), for the period
("Interest Period") from the October 15 or April 15, as the case may be, next
preceding the date hereof to which interest has been paid, or, if the date
hereof is an October 15 or April 15 to which interest has been paid, from the
date hereof, or, if the date hereof is prior to April 15, 2003, from the date
hereof, except that from April 15, 2012 the Interest Period shall extend to and
the Interest Payment Date shall be the Maturity Date, provided, however, that if
and to the extent the Company shall default in payment of the interest due on
such October 15 or April 15, then from the next preceding date to which interest
has been paid or if such default shall be in respect of the interest due on
April 15, 2003, then from the date hereof, until payment of the principal hereof
has been made or duly provided for. If the Maturity Date or an Interest Payment
Date falls on a day which is not a Business Day,
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as defined below, principal or interest payable with respect to such Maturity
Date or Interest Payment Date will be paid on the next succeeding Business Day
with the same force and effect as if made on such Maturity Date or Interest
Payment Date, as the case may be. The person in whose name this bond (or one or
more predecessor bonds) is registered at the close of business on the fifteenth
day (whether or not such day is a Business Day) next preceding such Interest
Payment Date (the "Record Date") shall be entitled to receive the interest
payable hereon on such Interest Payment Date notwithstanding the cancellation of
this bond upon any registration of transfer or exchange thereof subsequent to
such Record Date and prior to such Interest Payment Date, unless the Company
shall default in the payment of interest due on such Interest Payment Date, in
which case the defaulted interest shall be paid to the person in whose name this
bond (or one or more predecessor bonds) is registered on a subsequent record
date fixed by the Company, which subsequent record date shall be fifteen (15)
days prior to the payment of such defaulted interest; provided, however, that
interest payable on the Maturity Date will be payable to the person to whom the
principal hereof shall be payable. As used herein "Business Day" means any day,
other than a Saturday or Sunday, that is not a legal holiday or other day on
which banking institutions are required or authorized by law, regulation or
executive order to close in The City of New York, New York, or London, England.
Payment of the principal of and interest on this bond will be made in
immediately available funds at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan, The City of New York, not later
than 1:00 p.m. New York time, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts.
Reference is hereby made to the further provisions of this bond set
forth on the reverse hereof, including redemption terms, and such further
provisions shall for all purposes have the same effect as though fully set forth
at this place.
Notwithstanding the above, from the date hereof, but only so long as
the Policy issued by Ambac, or any successor thereto, insuring the payments of
the principal and interest on this bond shall be outstanding, the principal sum
shall be paid, in advance, on the third Business Day prior to the Maturity Date,
and interest for each Interest Period shall be paid, in advance, on the third
Business Day immediately preceding the applicable Interest Payment Date.
This bond shall not become or be valid or obligatory for any purpose
until the authentication certificate hereon shall have been signed by the
Trustee.
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IN WITNESS WHEREOF, PORTLAND GENERAL ELECTRIC COMPANY has caused this
instrument to be executed manually or in facsimile by its duly authorized
officers and has caused a facsimile of its corporate seal to be imprinted
hereon.
Dated:
PORTLAND GENERAL ELECTRIC COMPANY
By:_________________________________
[Title]
Attest: ________________________
[Assistant] Secretary
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(Form of Trustee's Authentication Certificate for
Bonds of the 5.6675% Series due 2012)
This is one of the bonds, of the series designated herein, described
in the within-mentioned Indenture.
HSBC BANK USA, AS TRUSTEE
By:__________________________
Authorized Officer
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[Reverse of Bond]
This bond is one of the bonds of a series designated as First Mortgage
Bonds, 5.6675% Series due 2012 (sometimes herein referred to as the "Bonds of
the 2012 Second Series") limited to a maximum aggregate principal amount of
$100,000,000. Bonds of the 2012 Second Series are bonds of an authorized issue
of bonds of the Company known as First Mortgage Bonds, not limited as to maximum
aggregate principal amount, all issued or issuable in one or more series under
and equally secured (except insofar as any sinking fund, replacement fund or
other fund established in accordance with the provisions of the Indenture
hereinafter mentioned may afford additional security for the bonds of any
specific series) by an Indenture of Mortgage and Deed of Trust dated July 1,
1945, duly executed and delivered by the Company to HSBC Bank USA (formerly
known as The Marine Midland Trust Company of New York), as Trustee, as
supplemented, amended and modified by fifty supplemental indentures and by the
Fifty-first Supplemental Indenture (such Indenture of Mortgage and Deed of Trust
as so supplemented, amended and modified by such fifty supplemental indentures
and the Fifty-first Supplemental Indenture being hereinafter called the
"Indenture"), to which Indenture and all indentures supplemental thereto,
including the Fifty-first Supplemental Indenture, reference is hereby made for a
description of the property mortgaged and pledged as security for said bonds,
the nature and extent of the security, and the rights, duties and immunities
thereunder of the Trustee, the rights of the holders of said bonds and of the
Trustee and of the Company in respect of such security, and the terms upon which
said bonds may be issued thereunder. Capitalized terms used herein and not
defined herein shall have the respective meanings in the Indenture, unless
otherwise noted.
The Bonds of the 2012 Second Series shall be redeemed in whole by the
Company prior to maturity (a) upon the sale or disposition substantially as an
entirety of the Company's electric properties at Portland, Oregon, at a price
("Redemption Price") equal to the greater of (i) 100% of the principal amount
hereof and (ii) an amount equal to the present value of the remaining principal
and interest payments due under this bond (not including any portion of such
payments of interest accrued as of the date of redemption), discounted to the
date of redemption on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Treasury Rate, plus 15 basis points,
together in either case with accrued and unpaid interest to the date of
redemption, upon notice to the holders of the Bonds of the 2012 Second Series
given not more than ninety (90) nor less than thirty (30) days prior to the date
of such redemption; (b) upon the sale or other disposition substantially as an
entirety, whether in one or more transactions, of the electric distribution and
transmission assets and properties of the Company in its service territory at
the Redemption Price, upon notice given not more than ninety (90) nor less than
thirty (30) days prior to the date of such redemption; and (c) upon written
notice to the Trustee and the Company from Ambac that the Company is in breach
of its covenant in Section 3.01(a) of the Insurance Agreement by and between the
Company and Ambac dated October 28, 2002, at the Redemption Price, upon notice
given not more than ninety (90) nor less than thirty (30) days prior to the date
of such redemption.
If this bond or any portion thereof ($1,000 or an integral multiple
thereof) is duly called for redemption and payment duly provided for as
specified in the Indenture, this bond or such portion thereof shall cease to be
entitled to the lien of the Indenture from and after the date
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payment is so provided for and shall cease to bear interest from and after the
date fixed for such redemption.
In the event of the selection for redemption of a portion only of the
principal of this bond, payment of the Redemption Price will be made only upon
surrender of this bond in exchange for a bond or bonds (but only of authorized
denominations of the same series) for the unredeemed balance of the principal
amount of this bond.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than seventy-five percent
in principal amount of the bonds (exclusive of bonds disqualified by reason of
the Company's interest therein) at the time outstanding, including, if more than
one series of bonds shall be at the time outstanding, not less than sixty
percent in principal amount of each series affected, to effect, by an indenture
supplemental to the Indenture, modifications or alterations of the Indenture and
of the rights and obligations of the Company and of the holders of the bonds and
coupons; provided, however, that no such modification or alteration shall be
made without the written approval or consent of the holder hereof which will (i)
extend the maturity of this bond or reduce the rate or extend the time of
payment of interest hereon or reduce the amount of the principal hereof, (ii)
permit the creation of any lien, not otherwise permitted, prior to or on a
parity with the lien of the Indenture, or (iii) reduce the percentage of the
principal amount of the bonds upon the approval or consent of the holders of
which modifications or alterations may be made as aforesaid.
The transfer of this bond is registrable by the registered owner
hereof in person or by such owner's attorney duly authorized in writing, at the
corporate trust office of the Trustee in the Borough of Manhattan, City and
State of New York, upon surrender of this bond for cancellation and upon payment
of any taxes or other governmental charges payable upon such transfer, and
thereupon a new registered bond or bonds of the same series and of a like
aggregate principal amount will be issued to the transferee or transferees in
exchange therefor.
The Company, the Trustee and any paying agent may deem and treat the
person in whose name this bond is registered as the absolute owner hereof for
the purpose of receiving payments of or on account of the principal hereof and
interest due hereon, and for all other purposes, whether or not this bond shall
be overdue, and neither the Company, the Trustee nor any paying agent shall be
affected by any notice to the contrary.
Bonds of this series are issuable only in fully registered form
without coupons in denominations of $250,000 or any amount in excess thereof
that is an integral multiple thereof. The registered owner of this bond at its
option may surrender the same for cancellation at said office of the Trustee and
receive in exchange therefor the same aggregate principal amount of registered
bonds of the same series but of other authorized denominations upon payment of
any taxes or other governmental charges payable upon such exchange and subject
to the terms and conditions set forth in the Indenture.
If an event of default as defined in the Indenture shall occur, the
principal of this bond may become or be declared due and payable before maturity
in the manner and with the effect provided in the Indenture. The holders,
however, of certain specified percentages of the bonds at
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the time outstanding, including in certain cases specified percentages of bonds
of particular series, may in certain cases, to the extent and as provided in the
Indenture, waive certain defaults thereunder and the consequences of such
defaults.
No recourse shall be had for the payment of the principal of or the
interest on this bond, or for any claim based hereon, or otherwise in respect
hereof or of the Indenture, against any incorporator, shareholder, director or
officer, past, present or future, as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or such
predecessor or successor corporation, under any constitution or statute or rule
of law, or by the enforcement of any assessment or penalty, or otherwise, all
such liability of incorporators, shareholders, directors and officers, as such,
being waived and released by the holder and owner hereof by the acceptance of
this bond and as provided in the Indenture.
The Indenture provides that this bond shall be deemed to be a contract
made under the laws of the State of New York, and for all purposes shall be
construed in accordance with and governed by the laws of said State.
(End of Form of Bond of the 5.6675% Series due 2012)
and
WHEREAS, all acts and proceedings required by law and by the charter
or articles of incorporation and bylaws of the Company necessary to make the
Bonds of the 2012 Second Series to be issued hereunder, when executed by the
Company, authenticated and delivered by the Trustee and duly issued, the valid,
binding and legal obligations of the Company, and to constitute this
Supplemental Indenture a valid and binding instrument, have been done and taken;
and the execution and delivery of this Supplemental Indenture have been in all
respects duly authorized;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH, that, in order
to secure the payment of the principal of, premium, if any, and interest on all
First Mortgage Bonds at any time issued and outstanding under the Original
Indenture as supplemented and modified by the fifty supplemental indentures
hereinbefore described and as supplemented and modified by this Supplemental
Indenture, according to their tenor, purport and effect, and to secure the
performance and observance of all the covenants and conditions therein and
herein contained, and for the purpose of confirming and perfecting the lien of
the Indenture on the properties of the Company hereinafter described, or
referred to, and for and in consideration of the premises and of the mutual
covenants herein contained, and acceptance of the Bonds of the 2012 Second
Series by the holders thereof, and for other valuable consideration, the receipt
whereof is hereby acknowledged, the Company has executed and delivered this
Supplemental Indenture and by these presents does grant, bargain, sell, warrant,
alien, convey, assign, transfer, mortgage, pledge, hypothecate, set over and
confirm unto the Trustee the following property, rights, privileges and
franchises (in addition to all other property, rights, privileges and franchises
heretofore subjected to the lien of the Original Indenture as supplemented by
the fifty supplemental indentures hereinbefore described and not heretofore
released from the lien thereof), to wit:
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CLAUSE I
Without in any way limiting anything hereinafter described, all and
singular the lands, real estate, chattels real, interests in land, leaseholds,
ways, rights-of-way, easements, servitudes, permits and licenses, lands under
water, riparian rights, franchises, privileges, electric generating plants,
electric transmission and distribution systems, and all apparatus and equipment
appertaining thereto, offices, buildings, warehouses, garages, and other
structures, tracks, machine shops, materials and supplies and all property of
any nature appertaining to any of the plants, systems, business or operations of
the Company, whether or not affixed to the realty, used in the operation of any
of the premises or plants or systems or otherwise, which have been acquired by
the Company since the execution and delivery of the Original Indenture and not
heretofore included in any indenture supplemental thereto, and now owned or
which may hereafter be acquired by the Company (other than excepted property as
defined in the Mortgage).
CLAUSE II
All corporate, Federal, State, municipal and other permits, consents,
licenses, bridge licenses, bridge rights, river permits, franchises, grants,
privileges and immunities of every kind and description, owned, held, possessed
or enjoyed by the Company (other than excepted property as defined in the
Mortgage) and all renewals, extensions, enlargements and modifications of any of
them, which have been acquired by the Company since the execution and the
delivery of the Original Indenture and not heretofore included in any indenture
supplemental thereto, and now owned or which may hereafter be acquired by the
Company.
CLAUSE III
Also all other property, real, personal or mixed, tangible or
intangible (other than excepted property as defined in the Mortgage) of every
kind, character and description and wheresoever situated, whether or not useful
in the generation, manufacture, production, transportation, distribution, sale
or supplying of electricity, hot water or steam, which have been acquired by the
Company since the execution and delivery of the Original Indenture and not
heretofore included in any indenture supplemental thereto, and now owned or
which may hereafter be acquired by the Company (other than excepted property as
defined in the Mortgage).
CLAUSE IV
Together with all and singular the plants, buildings, improvements,
additions, tenements, hereditaments, easements, rights, privileges, licenses and
franchises and all other appurtenances whatsoever belonging or in any wise
pertaining to any of the property hereby mortgaged or pledged, or intended so to
be, or any part thereof, and the reversion and reversions, remainder and
remainders, and the rents, revenues, issues, earnings, income, products and
profits thereof, and every part and parcel thereof, and all the estate, right,
title, interest, property, claim and demand of every nature whatsoever of the
Company at law, in equity or otherwise howsoever, in, of and to such property
and every part and parcel thereof (other than excepted property as defined in
the Mortgage).
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TO HAVE AND TO HOLD all of said property, real, personal and mixed,
and all and singular the lands, properties, estates, rights, franchises,
privileges and appurtenances hereby mortgaged, conveyed, pledged or assigned, or
intended so to be, together with all the appurtenances thereto appertaining and
the rents, issues and profits thereof, unto the Trustee and its successors and
assigns, forever:
SUBJECT, HOWEVER, to the exceptions, reservations, restrictions,
conditions, limitations, covenants and matters contained in all deeds and other
instruments whereunder the Company has acquired any of the property now owned by
it, and to permitted encumbrances as defined in Subsection B of Section 1.11 of
the Mortgage;
BUT IN TRUST NEVERTHELESS, for the equal and proportionate use,
benefit, security and protection of those who from time to time shall hold the
bonds authenticated and delivered under the Original Indenture and the fifty
supplemental indentures hereinbefore described or this Supplemental Indenture,
and duly issued by the Company, without any discrimination, preference or
priority of any one bond over any other by reason of priority in the time of
issue, sale or negotiation thereof or otherwise, except as provided in Section
11.28 of the Mortgage, so that, subject to said Section 11.28, each and all of
said bonds shall have the same right, lien and privilege under the Original
Indenture and the fifty supplemental indentures hereinbefore described, or this
Supplemental Indenture, and shall be equally secured thereby and hereby and
shall have the same proportionate interest and share in the trust estate, with
the same effect as if all of the bonds had been issued, sold and negotiated
simultaneously on the date of delivery of the Original Indenture;
AND UPON THE TRUSTS, USES AND PURPOSES and subject to the covenants,
agreements and conditions in the Original Indenture and the fifty supplemental
indentures hereinbefore described and herein set forth and declared.
ARTICLE ONE.
BONDS OF THE 2012 SECOND SERIES AND
CERTAIN PROVISIONS RELATING THERETO.
SECTION 1.01. Certain Terms of Bonds of the 2012 Second Series.
(a) There is hereby established a series of First Mortgage Bonds of
the Company designated and entitled as "First Mortgage Bonds, 5.6675% Series due
2012" (sometimes referred to as the "Bonds of the 2012 Second Series"). The
aggregate principal amount of the Bonds of the 2012 Second Series shall be
limited to $100,000,000, excluding, however, any Bonds of the 2012 Second Series
which may be executed, authenticated and delivered in exchange for or in lieu of
or in substitution for other Bonds of such Series pursuant to the provisions of
the Indenture.
(b) The definitive Bonds of the 2012 Second Series shall be issuable
in substantially the form as hereinabove set forth in fully registered form
without coupons in the denomination of $250,000, or any amount in excess thereof
that is an integral multiple thereof. Notwithstanding
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the provisions of Section 2.05 of the Mortgage, each Bond of the 2012 Second
Series shall be dated as of the date of its authentication, shall mature on
October 25, 2012 (the "Maturity Date"), except to the extent redeemed or repaid
prior to the Maturity Date, and shall bear interest for the period ("Interest
Period") from the October 15 or April 15 as the case may be, next preceding the
date thereof to which interest has been paid, or, if the date thereof is an
October 15 or April 15 to which interest has been paid, from the date thereof,
or, if the date thereof is prior to April 15, 2003, from the date thereof,
except that from April 15, 2012 the Interest Period shall extend to and the
Interest Payment Date shall be the Maturity Date, provided, however, that if and
to the extent the Company shall default in payment of the interest due on such
October 15 or April 15, then from the next preceding date to which interest has
been paid or if such default shall be in respect of the interest due on April
15, 2003, then from the date thereof. Each Bond of the 2012 Second Series shall
bear interest at the rate of 5.6675% per annum (calculated on the basis of a
360-day year of twelve 30-day months) until the payment of the principal thereof
has been made or duly provided for, such interest to be payable semi-annually on
October 15 and April 15 ("Interest Payment Date") in each year. If the Maturity
Date or an Interest Payment Date falls on a day which is not a Business Day, as
defined below, principal or interest payable with respect to such Maturity Date
or Interest Payment Date will be paid on the next succeeding Business Day with
the same force and effect as if made on such Maturity Date or Interest Payment
Date, as the case may be. The person in whose name any Bond of the 2012 Second
Series is registered at the close of business on the applicable Record Date (as
defined below) with respect to any Interest Payment Date shall be entitled to
receive the interest payable thereon on such Interest Payment Date
notwithstanding the cancellation of such Bond of the 2012 Second Series upon any
registration of transfer or exchange thereof subsequent to such Record Date and
prior to such Interest Payment Date, unless the Company shall default in the
payment of the interest due on such Interest Payment Date, in which case such
defaulted interest shall be paid to the person in whose name such Bond is
registered on a subsequent record date fixed by the Company, which subsequent
record date shall be fifteen (15) days prior to the payment of such defaulted
interest; provided, however, that interest payable on the Maturity Date will be
payable to the person to whom the principal hereof shall be payable. As used
herein the term "Business Day" means any day, other than a Saturday or Sunday,
that is not a legal holiday or other day on which banking institutions are
required or authorized by law, regulation or executive order to close in The
City of New York, New York, or London, England. As used herein, the term "Record
Date" with respect to any Interest Payment Date shall mean the fifteenth day
(whether or not such day is a Business Day) next preceding such Interest Payment
Date. The principal of and interest on the Bonds of the 2012 Second Series shall
be payable in any coin or currency of the United States of America which at the
time of payment is legal tender for the payment of public and private debts at
the office or agency of the Company in the Borough of Manhattan, City and State
of New York, no later than 1:00 p.m. New York time.
(c) Notwithstanding the above, from the date hereof, but only so long
as the Financial Guaranty Insurance Policy No. 20049BE (the "Policy") issued by
Ambac Assurance Corporation, or any successor thereto ("Ambac"), insuring the
payments of the principal and interest on the Bonds of the 2012 Second Series
shall be outstanding, the principal sum shall be paid, in advance, on the third
Business Day immediately preceding the Maturity Date ("Advance Principal Payment
Date"), and interest for each Interest Period shall be paid, in advance, on the
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third Business Day immediately preceding the applicable Interest Payment Date
("Advance Interest Payment Date").
(d) Notwithstanding anything to the contrary in the Indenture, the
Company will pay to the Trustee by 11:00 a.m., New York City time, on each
Advance Principal Payment Date or Advance Interest Payment Date immediately
available funds in an amount sufficient to pay all principal and interest due on
the Bonds of the 2012 Second Series due on such Advance Principal Payment Date
or Advance Interest Payment Date. At or prior to 1:00 p.m., New York City time,
on each Advance Principal Payment Date or Advance Interest Payment Date, the
Trustee shall determine whether there has been deposited by the Company with the
Trustee sufficient funds to pay the principal of or interest on the Bonds of the
2012 Second Series on such Advance Principal Payment Date or Advance Interest
Payment Date. If the Trustee determines that it has received from the Company
insufficient funds to make such payment, the Trustee shall so notify Ambac in
writing in the manner required by Section 3.03 hereof. Such notice shall specify
the amount of the anticipated deficiency and whether the payment to be made on
the Bonds of the 2012 Second Series on such Advance Principal Payment Date or
Advance Interest Payment Date will be deficient as to principal or interest, or
both.
(e) The Trustee shall, after giving notice to Ambac as provided in
Section 1.01(d) above, make available to Ambac and, at Ambac's direction, to The
Bank of New York, in New York, New York, as insurance trustee for Ambac or any
successor insurance trustee (the "Insurance Trustee"), the registration books of
the Company maintained by the Trustee with respect to the Bonds of the 2012
Second Series, and all payment records of the Trustee in respect of the Bonds of
the 2012 Second Series maintained under this Supplemental Indenture.
(f) In the event the Trustee notifies Ambac of any deficiency of
interest or principal payable on the Bonds of the 2012 Second Series pursuant to
Section 1.01(d) above, the Trustee shall provide Ambac and, at Ambac's
direction, the Insurance Trustee with a list of holders of Bonds of the 2012
Second Series entitled to receive principal or interest payments from Ambac
under the terms of the Policy, and shall make arrangements with the Insurance
Trustee (i) to mail checks or drafts to the holders of Bonds of the 2012 Second
Series entitled to receive full or partial interest payments from Ambac and (ii)
to pay principal upon Bonds of the 2012 Second Series surrendered to the
Insurance Trustee by the holders of Bonds of the 2012 Second Series entitled to
receive full or partial principal payments from Ambac.
(g) The Trustee shall, within one Business Day of the time it provides
notice to Ambac pursuant to Section 1.01(d) above, furnish a notice
substantially in the form of Annex A hereto, to the holders of Bonds of the 2012
Second Series entitled to receive the payment of principal or interest thereon
from Ambac (i) as to the fact of such entitlement, (ii) that Ambac will remit to
them all or a part of the interest payments next coming due upon proof of the
holders' entitlement to interest payments and delivery to the Insurance Trustee
of an appropriate assignment (the form of which shall be provided by Ambac) of
the holders' right to such payment, (iii) that should they be entitled to
receive full payment of principal from Ambac, they must surrender their Bonds of
the 2012 Second Series (along with an appropriate instrument of assignment (the
form of which shall be provided by Ambac) to permit ownership of such Bonds of
the 2012 Second Series to be registered in the name of Ambac) for payment to the
Insurance Trustee, and not the Trustee, and (iv) that
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should they be entitled to receive partial payment of principal from Ambac, they
must surrender their Bonds of the 2012 Second Series for payment thereon first
to the Trustee, which shall note on such Bonds of the 2012 Second Series the
portion of the principal paid by the Trustee or any paying agent, and then,
along with an appropriate instrument of assignment (the form of which shall be
provided by Ambac), to the Insurance Trustee, which will then pay the unpaid
portion of principal.
(h) In the event the Trustee has received written notice that any
payment of principal of or interest on Bonds of the 2012 Second Series that has
become due and payable and has been made to a holder of the Bonds of the 2012
Second Series by or on behalf of the Company has been deemed a preferential
transfer and theretofore recovered from such holder or former holder of such
Bond of the 2012 Second Series pursuant to the United States Bankruptcy Code by
a trustee in bankruptcy in accordance with the final, nonappealable order of a
court having competent jurisdiction, the Trustee shall, at the time Ambac is
notified pursuant to Section 1.01(d) above, notify all holders of Bonds of the
2012 Second Series that in the event that any holder's payment is so recovered,
such holder will be entitled to payment from Ambac to the extent of such
recovery if sufficient funds are not otherwise available, and the Trustee shall
furnish to Ambac its records evidencing the payments of principal of and
interest on the Bonds of the 2012 Second Series that have been made by the
Trustee and subsequently recovered from holders and the dates on which such
payments were made.
(i) In addition to those rights granted Ambac under this Supplemental
Indenture, Ambac shall, to the extent it makes payment of principal of or
interest on Bonds of the 2012 Second Series, become subrogated to the rights of
the recipients of such payments in accordance with the terms of the Policy, and
to evidence such subrogation (i) in the case of subrogation as to claims for
past due interest, the Trustee shall note Ambac's rights as subrogee on the
registration books of the Company maintained by the Trustee upon receipt from
Ambac of proof of the payment of interest thereon to the holders of the Bonds of
the 2012 Second Series, and (ii) in the case of subrogation as to claims for
past due principal, the Trustee shall note Ambac's rights as subrogee on the
registration books of the Company maintained by the Trustee upon surrender of
the Bonds of the 2012 Second Series by the holders thereof.
(j) Upon compliance with the provisions of Section 2.06 of the
Mortgage and as provided in this Supplemental Indenture, and upon payment of any
taxes or other governmental charges payable upon such exchange, Bonds of the
2012 Second Series may be exchanged for a new Bond or Bonds of the 2012 Second
Series of different authorized denominations of like aggregate principal amount.
The Trustee hereunder shall, by virtue of its office as such Trustee, be the
registrar and transfer agent of the Company for the purpose of registering
permitted transfers of Bonds of the 2012 Second Series.
(k) Notwithstanding the provisions of Section 2.11 of the Mortgage, no
service charge shall be made for any exchange or registration of transfer of
Bonds of the 2012 Second Series, but the Company at its option may require
payment of a sum sufficient to cover any tax or other governmental charge
incident thereto.
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SECTION 1.02. Mandatory Redemption of Bonds of the 2012 Second Series.
(a) The Bonds of the 2012 Second Series shall be redeemed prior to
maturity, as a whole:
(i) Upon the sale or disposition substantially as an entirety of
the Company's electric properties at Portland, Oregon, at a price
("Redemption Price") equal to the greater of (i) 100% of the
principal amount thereof and (ii) an amount equal to the present
value of the remaining principal and interest payments due under
the Bonds of the 2012 Second Series (not including any portion of
such payments of interest accrued as of the date of redemption),
discounted to the date of redemption on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at
the Adjusted Treasury Rate, plus 15 basis points, together in
either case with accrued and unpaid interest to the date of
redemption. The Company shall give Ambac and the Trustee written
notice of the Redemption Price ("Price Notice") immediately after
the calculation thereof, and the Trustee shall have no
responsibility for such calculation.
(ii) Upon the sale or disposition substantially as an entirety,
whether in one or more transactions, of the electric distribution
and transmission assets and properties of the Company in its
service territory, at the Redemption Price. The Company shall
provide the Price Notice to Ambac and the Trustee immediately
after the calculation of the Redemption Price, and the Trustee
shall have no responsibility for such calculation.
(iii) Upon written notice to the Trustee and the Company from
Ambac that the Company is in breach of its covenant in Section
3.01(a) of the Insurance Agreement, at the Redemption Price. The
Company shall provide the Price Notice to Ambac and the Trustee
immediately after the calculation of the Redemption Price, and
the Trustee shall have no responsibility for such calculation.
(b) Redemption pursuant to this Section 1.02 shall take place upon
prior notice given by mailing such notice to the respective registered owners of
such Bonds of the 2012 Second Series not less than thirty (30) nor more than
ninety (90) days prior to the date of redemption and as otherwise required by
the provisions of Article Nine of the Mortgage.
(c) The following definitions shall apply for purposes of this Section
1.02:
(i) "Adjusted Treasury Rate" means, with respect to any
redemption date, the rate per annum equal to the semi-annual
equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date. The Adjusted
Treasury Rate will be calculated on the third Business Day
preceding the redemption date.
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(ii) "Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a
maturity comparable to the remaining term of the Bonds of the
2012 Second Series to be redeemed that would be used, at the time
of selection and in accordance with customary financial practice,
in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the Bonds of the 2012 Second
Series (the "Remaining Life").
(iii) "Comparable Treasury Price" means (a) the average of four
Reference Treasury Dealer Quotations for the redemption date,
after excluding the highest and lowest Reference Treasury Dealer
Quotations, or (b) if the Independent Investment Banker obtains
fewer than four such Reference Treasury Dealer Quotations, the
average of all such quotations.
(iv) "Independent Investment Banker" means an independent
investment and banking institution of national standing appointed
by the Company.
(v) "Insurance Agreement" means the Insurance Agreement dated
October _, 2002 by and between the Company and Ambac.
(vi) "Reference Treasury Dealer" means a primary U.S. Government
securities dealer in New York City selected by the Independent
Investment Banker.
(vii) "Reference Treasury Dealer Quotations" means, with respect
to each Reference Treasury Dealer, the average, as determined by
the Independent Investment Banker, of the bid and asked prices
for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted in writing to the
Independent Investment Banker at 5:00 p.m., New York City time,
on the fourth Business Day preceding the redemption date.
SECTION 1.03. Acknowledgements and Consents. Notwithstanding any
provision of the Indenture, from the date of this Supplemental Indenture, but
only so long as the Policy insuring the payments of the principal and interest
on the Bonds of the 2012 Second Series shall be outstanding:
(a) The Company acknowledges, agrees and consents that all of the
rights of the holders of Bonds of the 2012 Second Series under the Indenture
shall be exercised by Ambac, except that (i) all interest and principal shall be
paid to the holders of Bonds of the 2012 Second Series, and (ii) only the
holders of the Bonds of the 2012 Second Series may approve an amendment to this
Supplemental Indenture or the issuance of any supplemental indenture that
extends the maturity of the Bonds of the 2012 Second Series, reduces the rate or
extends the time of payment of any interest on the Bonds of the 2012 Second
Series, reduces the amount of or extends the time of payment of the principal of
the Bonds of the 2012 Second Series or amends this Section 1.03(a).
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(b) The Company acknowledges, agrees and consents that Ambac is a third
party beneficiary to the Indenture and may enforce any right, remedy or claim
(i) of a holder of Bonds of the 2012 Second Series conferred, given or granted
under the Indenture, or (ii) conferred, given or granted to Ambac under this
Supplemental Indenture; provided that nothing in the Indenture expressed or
implied is intended or shall be construed to confer upon, or to give or grant
to, any person or entity, other than the holders of the Bonds of the 2012 Second
Series, the Company, the Trustee and, as provided in this Section 1.03, Ambac,
any right, remedy or claim under or by reason of the Indenture or any covenant,
condition or stipulation in the Indenture.
(c) The Company will permit Ambac to discuss with appropriate officers
of the Company the affairs and finances of the Company and any reasonable
information regarding the lien of the Indenture on the properties of the Company
and the accounts of the Company related thereto as Ambac may reasonably request,
subject to any restrictions or limitations imposed on the Company by federal or
state laws.
(d) The Company agrees that it will not amend or modify, and will not
consent to any amendment or modification to, this Section 1.03 without the
express written consent of Ambac.
SECTION 1.04. Defeasence. Notwithstanding Section 15.03 of the
Mortgage, in the event that the principal and/or interest due on any of the
Bonds of the 2012 Second Series shall be paid by Ambac pursuant to the Policy,
such Bonds of the 2012 Second Series shall remain outstanding for all purposes
of the Indenture, shall not be deemed defeased or otherwise satisfied, shall not
be considered paid by the Company, and shall remain entitled to the lien,
benefit, security and rights under the Indenture; provided that all such rights
and benefits shall run to the benefit of Ambac, and Ambac shall be subrogated to
the rights of the holders of such Bonds of the 2012 Second Series.
SECTION 1.05. Sections 4.04, 4.05 and 4.06 to Remain in Effect.
Notwithstanding the provisions of Section 4.07 of the Mortgage, the provisions
of Sections 4.04, 4.05 and 4.06 of the Mortgage shall remain in full force and
effect and shall be performed by the Company so long as any Bonds of the 2012
Second Series remain outstanding.
SECTION 1.06. Certain Requirements of Mortgage to Remain Applicable.
The requirements which are stated in the next to the last paragraph of Section
1.13 and in Clause (9) of Paragraph A of Section 3.01 of the Mortgage to be
applicable so long as any of the Bonds of the 1975 Series are outstanding shall
remain applicable so long as any of the Bonds of the 2012 Second Series are
outstanding.
SECTION 1.07. Certain Exceptions to Sections 2.06 and 2.10 of the
Mortgage. Notwithstanding the provisions of Section 2.06 or Section 2.10 of the
Mortgage, the Company shall not be required (a) to issue, register, discharge
from registration, exchange or register the transfer of any Bond of the 2012
Second Series for a period of fifteen (15) days next preceding any selection by
the Trustee of Bonds of the 2012 Second Series to be redeemed or (b) to
register, discharge from registration, exchange or register
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the permitted transfer of any Bond of the 2012 Second Series so selected for
redemption in its entirety or (c) to exchange or register the permitted transfer
of any portion of a Bond of the 2012 Second Series which portion has been so
selected for redemption.
SECTION 1.08. Reference to Minimum Provision for Depreciation in
Certificate of Available Additions. So long as any Bonds of the 2012 Second
Series remain outstanding, all references to the minimum provision for
depreciation in the form of certificate of available additions set forth in
Section 3.03 of the Mortgage shall be included in any certificate of available
additions filed with the Trustee, but whenever Bonds of the 2012 Second Series
shall no longer be outstanding, all references to such minimum provisions for
depreciation may be omitted from any such certificate.
SECTION 1.09. Duration of Article One. This Article One shall be of
force and effect only so long as any Bonds of the 2012 Second Series are
outstanding.
ARTICLE TWO.
TRUSTEE.
SECTION 2.01. Trustee Consents. Notwithstanding any provision of the
Indenture, from the date of this Supplemental Indenture, but only so long as the
Policy insuring the payments of the principal and interest on the Bonds of the
2012 Second Series shall be outstanding:
(a) The Trustee acknowledges, agrees and consents that all of the
rights of the holders of Bonds of the 2012 Second Series under the Indenture
shall be exercised by Ambac, except that (i) all interest and principal shall be
paid to the holders of Bonds of the 2012 Second Series, and (ii) only the
holders of the Bonds of the 2012 Second Series may approve an amendment to this
Supplemental Indenture or the issuance of any supplemental indenture that
extends the maturity of the Bonds of the 2012 Second Series, reduces the rate or
extends the time of payment of any interest on the Bonds of the 2012 Second
Series, reduces the amount of or extends the time of payment of the principal of
the Bonds of the 2012 Second Series or amends this Section 2.01(a).
(b) In addition to notice to the holders of the Bonds of the 2012
Second Series, the Trustee shall send to Ambac, at the address provided to the
Trustee in writing from time to time by Ambac, all notices and other
communications required to be sent to the holders of the Bonds of the 2012
Second Series pursuant to the Indenture; provided that if Ambac shall fail to
provide to the Trustee in writing an address, such notices and communications
shall be sent to the holders of the Bonds of the 2012 Second Series only.
(c) The Trustee agrees that it will not amend or modify, and will not
consent to any amendment or modification to, this Section 2.01 without the
express written consent of Ambac.
SECTION 2.02. Duties of Trustee. The Trustee hereby accepts the trust
hereby created. The Trustee undertakes, prior to the occurrence of an event of
default and after the curing of all events of default which may have occurred,
to perform such duties and only such duties as are specifically set forth in the
Indenture, on and subject to the terms and conditions set forth in the
Indenture, and in case of the occurrence of an event of default (which has not
been
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cured) to exercise such of the rights and powers vested in it by the Indenture,
and to use the same degree of care and skill in their exercise, as a prudent
person would exercise or use under the circumstances in the conduct of his or
her own affairs.
The Trustee shall not be responsible in any manner whatsoever for or
in respect of the validity or sufficiency of this Supplemental Indenture or the
Bonds of the 2012 Second Series issued hereunder or the due execution thereof by
the Company. The Trustee shall be under no obligation or duty with respect to
the filing, registration or recording of this Supplemental Indenture or the
re-filing, re-registration or re-recording thereof. The recitals of fact
contained herein or in the Bonds of the 2012 Second Series (other than the
Trustee's authentication certificate) shall be taken as the statements solely of
the Company, and the Trustee assumes no responsibility for the correctness
thereof.
Notwithstanding Section 2.01 of this Supplemental Indenture, the
Trustee shall not be responsible in any manner whatsoever for or in respect of
the validity or sufficiency of the Policy and shall be under no obligation or
duty with respect thereto, including determining if the Policy shall be or
remain outstanding. Until such time as the Trustee shall receive written notice
from Ambac and the Company that the Policy is no longer outstanding or otherwise
is not applicable to the Bonds of the 2012 Second Series, the Trustee shall be
entitled to and shall assume that the Policy is outstanding and applicable to
the Bonds of the 2012 Second Series.
ARTICLE THREE.
MISCELLANEOUS PROVISIONS.
SECTION 3.01. Date of this Supplemental Indenture. Although this
Supplemental Indenture, for convenience and for the purpose of reference, is
dated October 1, 2002, the actual date of execution by the Company and by the
Trustee is as indicated by their respective acknowledgments hereto annexed.
SECTION 3.02. Relation to Original Indenture. This Supplemental
Indenture is executed and shall be construed as an indenture supplemental to the
Original Indenture as heretofore supplemented and modified, and as supplemented
and modified hereby, the Original Indenture as heretofore supplemented and
modified is in all respects ratified and confirmed, and the Original Indenture
as heretofore and hereby supplemented and modified shall be read, taken and
construed as one and the same instrument. All terms used in this Supplemental
Indenture shall be taken to have the same meaning as in the Original Indenture
except in cases where the context clearly indicates otherwise.
SECTION 3.03. Notices to Ambac. Any notices and other communications
required to be provided to Ambac under this Supplemental Indenture shall be in
writing and addressed to the following:
Ambac Assurance Corporation
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Surveillance Department
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with a copy to:
Ambac Assurance Corporation
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
or at such other address as may be designated by Ambac in writing to the
Trustee.
SECTION 3.04. Invalid, Illegal or Unenforceable Provisions. In case
any one or more of the provisions contained in this Supplemental Indenture or in
the Bonds of the 2012 Second Series shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Supplemental
Indenture, but this Supplemental Indenture shall be construed as if such invalid
or illegal or unenforceable provision had never been contained herein.
SECTION 3.05. Counterparts. This Supplemental Indenture may be
executed in any number of counterparts, and each of such counterparts shall for
all purposes be deemed to be an original, and all such counterparts, or as many
of them as the Company and the Trustee shall preserve undestroyed, shall
together constitute but one and the same instrument.
SECTION 3.06. Conflicting Provision. If any provision of this
Supplemental Indenture conflicts with another provision of the Mortgage required
to be included in indentures qualified under the Trust Indenture Act of 1939 (as
enacted prior to the date of this Supplemental Indenture) by any of the
provisions of said Act, such required provision shall control.
SECTION 3.07. Headings. Article and Section headings and the table of
contents used herein are for convenience of reference only, are not part of this
Supplemental Indenture and are not to affect the construction of, or to be taken
into consideration in interpreting, this Supplemental Indenture.
SECTION 3.08. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
DETERMINED WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS (OTHER THAN
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).
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IN WITNESS WHEREOF, Portland General Electric Company has caused this
Supplemental Indenture to be signed in its corporate name by its President or
one of its Senior Vice Presidents or one of its Vice Presidents and its
corporate seal to be hereunto affixed and attested by its Secretary or one of
its Assistant Secretaries, and in token of its acceptance of the trusts created
hereunder, HSBC Bank USA has caused this Supplemental Indenture to be signed in
its corporate name by one of its Vice Presidents or one of its Assistant Vice
Presidents or one of its Corporate Trust Officers and its corporate seal to be
hereunto affixed and attested by one of its Corporate Trust Officers, all as of
the day and year first above written.
PORTLAND GENERAL ELECTRIC COMPANY
By: /s/ Xxxxx X. Xxxx
-------------------------------------
Name: Xxxxx X. Xxxx
Title: Executive Vice President, Finance,
Chief Financial Officer and Treasurer
Attest:/s/ Xxxxxx X. XxXxxxxx
-----------------------
Title: Assistant Secretary
(Seal)
HSBC BANK USA, as Trustee
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Assistant Vice President
Attest:/s/ Xxxxx X. Xxxxxxxx
------------------------
Title: Assistant Vice President
------------------------
(Seal)
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State of Oregon ss.
ss.
County of Multnomah ss.
The foregoing instrument was acknowledged before me on this 24th day
of October, 2002 by Xxxxx X. Xxxx, the Executive Vice President, Finance, Chief
Financial Officer and Treasurer of PORTLAND GENERAL ELECTRIC COMPANY, an Oregon
corporation, on behalf of said corporation.
/s/ Xxxxxxx X. Xxxxx
-------------------------------
Notary Public for Oregon
My Commission Expires 9/5/04
-------
[NOTARIAL SEAL]
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State of New York ss.
ss.
County of New York ss.
--------
The foregoing instrument was acknowledged before me on this 25th day
of October, 2002 by Xxxxxxx X. Xxxx , a(an) Assistant Vice President of HSBC
BANK USA, a New York banking corporation and trust company, on behalf of said
corporation.
/s/ Xxxxxxxx X. Xxxxxxxx
----------------------------------
Notary Public, State of New York
No. 00-0000000
-----------
My Commission Expires 1/12/03
-------
[NOTARIAL SEAL]
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State of Oregon ss.
ss.
County of Multnomah ss.
Xxxxx X. Xxxx and Xxxxxx X. XxXxxxxx, the Executive Vice President,
Finance, Chief Financial Officer and Treasurer and an Assistant Secretary,
respectively, of PORTLAND GENERAL ELECTRIC COMPANY, an Oregon corporation, the
mortgagor in the foregoing mortgage named, being first duly sworn, on oath
depose and say that they are the officers above named of said corporation and
that this affidavit is made for and on its behalf by authority of its Board of
Directors and that the aforesaid mortgage is made by said mortgagor in good
faith, and without any design to hinder, delay or defraud creditors.
Subscribed and sworn to before me this 24th day of October, 2002.
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/s/ Xxxxxxx X. Xxxxx
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Notary Public for Oregon
My Commission Expires 9/5/04
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[NOTARIAL SEAL]
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ANNEX A
Notice Pursuant to Section 1.01(g)
TO EACH HOLDER OF THE BONDS OF THE 2012 SECOND SERIES OF PORTLAND GENERAL
ELECTRIC COMPANY
In accordance with Section 1.01(g) of the Fifty-first Supplemental
Indenture, you are hereby notified (i) that you are entitled to receive the
payment of principal or interest on your Bond(s) from Ambac Assurance
Corporation ("Ambac") in accordance with the Financial Guaranty Insurance Policy
No. 20049BE, or any successor policy (the "Policy"), as noted on your Bond
certificate(s), (ii) that Ambac will remit to you all or a part of the interest
payments next coming due upon proof of your entitlement to interest payments and
delivery to the Insurance Trustee, in form satisfactory to The Bank of New York,
as Insurance Trustee, of an appropriate assignment (the form of which shall be
provided by Ambac) of your right to such payment, (iii) that should you be
entitled to receive full payment of principal from Ambac, you must surrender
your Bond(s) (along with an appropriate instrument of assignment (the form of
which shall be provided by Ambac) to permit ownership of such Bond(s) to be
registered in the name of Ambac) to the Insurance Trustee, and (iv) that should
you be entitled to receive partial payment of principal from Ambac, you must
surrender your Bond(s) for payment thereon first to HSBC Bank USA, as Trustee
under the Fifty-first Supplemental Indenture, to have noted on your Bond(s) the
portion of the principal paid by the Trustee or the Paying Agent, if any, and
then, along with an appropriate instrument of assignment (the form of which
shall be provided by Ambac) to the Insurance Trustee, which will then pay the
unpaid portion of principal.
HSBC BANK USA, as Trustee
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Assistant Vice President
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