Exhibit C(13)
LEASE AND SUBLEASE AGREEMENT
between
PORT OF ST. HELENS, OREGON
and
PORTLAND GENERAL ELECTRIC COMPANY
Dated as of December 15, 1990
Relating to the Issuance of
Port of St. Helens, Oregon
Pollution Control Revenue Bonds,
Series 1990B
(Portland General Electric Company Project)
TABLE OF CONTENTS
ARTICLE I
Definitions
Section 1.1. Definition of Terms...........................................2
Section 1.2. Number and Gender.............................................2
Section 1.3. Articles, Sections, Etc.......................................2
Section 1.4. Indenture Controls as to Conflicting Provisions...............2
ARTICLE II
Representations
Section 2.1. Representations of the Issuer.................................3
Section 2.2. Representations of the Company................................3
ARTICLE III
Issuance of the Series 1990B Bonds; Financing the Project
Section 3.1. Agreement to Issue the Series 1990B Bonds;
Application of Series 1990B Bond Proceeds.....................5
Section 3.2. Investment of Moneys in Funds.................................5
Section 3.3. Special Tax Certifications....................................6
Section 3.4. Issuance of Additional Bonds..................................7
Section 3.5. Rebate of Arbitrage to the United States......................7
Section 3.6. Completion of Project.........................................8
ARTICLE IV
Lease and Sublease of Project; Repayment Provisions
Section 4.1. Lease and Sublease of Project..................................9
Section 4.2. Rental Payments and Payment of Other Amounts Payable...........9
Section 4.3. Unconditional Obligation......................................11
Section 4.4. Assignment of Issuer's Rights.................................11
Section 4.5. Amounts Remaining in Funds....................................11
Section 4.6. Quiet Enjoyment...............................................12
ARTICLE V
Special Covenants and Agreements
Section 5.1. Right of Access to the Project................................13
Section 5.2. The Company; Maintenance of its Existence; Assignments........13
Section 5.3. Records and Financial Statements of the Company...............14
Section 5.4. Maintenance and Repair; Taxes; Utility and Other Charges......15
Section 5.5. Qualification in Oregon.......................................15
Section 5.6. Tax Exempt Status of Series 1990B Bonds.......................15
-i-
ARTICLE VI
Events of Default and Remedies
Section 6.1. Events of Default.............................................17
Section 6.2. Remedies On Default...........................................18
Section 6.3. Agreement to Pay Attorneys' Fees and Expenses.................19
Section 6.4. No Remedy Exclusive...........................................19
Section 6.5. No Additional Waiver Implied By One Waiver....................19
ARTICLE VII
Prepayment
Section 7.1. Redemption of Series 1990B Bonds with Prepayment Moneys.......21
Section 7.2. Optional Prepayment...........................................21
Section 7.3. Mandatory Prepayment..........................................21
Section 7.4. Amount of Prepayment..........................................21
Section 7.5. Notice of Prepayment..........................................22
ARTICLE VIII
Non-Liability of Issuer; Expenses; Indemnification
Section 8.1. Non-Liability of Issuer.......................................23
Section 8.2. Expenses......................................................23
Section 8.3. Indemnification...............................................23
Section 8.4. Management....................................................25
ARTICLE IX
Miscellaneous
Section 9.1. Notices.......................................................26
Section 9.2. Severability..................................................26
Section 9.3. Execution of Counterparts.....................................26
Section 9.4. Amendments, Changes and Modifications.........................26
Section 9.5. Governing Law.................................................27
Section 9.6. Authorized Company Representative.............................27
Section 9.7. Term of the Agreement.........................................27
Section 9.8. Binding Effect................................................27
EXHIBIT A.....................................................................28
ii.
LEASE AND SUBLEASE AGREEMENT
THIS LEASE AND SUBLEASE AGREEMENT, dated as of December 15, 1990, by and
between the XXXX XX XX. XXXXXX, XXXXXX, a municipal corporation of the State of
Oregon (the "Issuer"), and PORTLAND GENERAL ELECTRIC COMPANY, a corporation duly
organized and existing under the laws of the State of Oregon (the "Company").
W I T N E S E T H :
WHEREAS, Oregon Revised Statutes Chapter 777 (the "Act") provides that
municipal corporations designated as ports are authorized and shall have the
power to issue revenue bonds for the purpose of financing the improvement and
acquisition of personal properties suitable for use by any industry; and
WHEREAS, the Act provides that such bonds shall be payable solely from the
revenues derived from such facilities and shall be secured by a pledge of the
revenues out of which such bonds shall be payable; and
WHEREAS, in accordance with the provisions of the Act, the Issuer has
authorized and undertaken through rental payments to provide funds to assist in
the financing of the acquisition and construction of a portion of certain
pollution control and solid waste disposal facilities (the "Project") for use by
the Company at the Trojan Nuclear Power Plant (the "Facility") located in
Columbia County, Oregon; and
WHEREAS, the Issuer proposes to issue its Port of St. Helens, Oregon
Pollution Control Revenue Bonds, Series 1990B (Portland General Electric Company
Project) (the "Series 1990B Bonds"), in the principal amount of $5,100,000 in
order to assist in the financing of the Project upon the terms and conditions
set forth herein;
NOW, THEREFORE, in consideration of the premises and the respective
representations and covenants herein contained, the parties hereto agree as
follows:
SUBLEASE AND LEASE AGREEMENT - Page 1.
ARTICLE I
Definitions
Section 1.1. Definition of Terms. Unless the context otherwise requires,
the terms used in this Agreement shall have the meanings specified in Section
1.1 of the Indenture of Trust, dated as of December 15, 1990, by and between the
Issuer and Security Pacific Bank Oregon, as Trustee (the "Trustee"), as
originally executed or as it may from time to time be supplemented or amended as
provided therein (the "Indenture").
Section 1.2. Number and Gender. The singular form of any word used herein,
including the terms defined in Section 1.1 of the Indenture, shall include the
plural, and vice versa. The use herein of a word of any gender shall include all
genders.
Section 1.3. Articles, Sections, Etc. Unless otherwise specified,
references to Articles, Sections and other subdivisions of this Agreement are to
the designated Articles, Sections and other subdivisions of this Agreement. The
words "hereof," "herein," "hereunder" and words of similar import refer to this
Agreement as a whole. The headings or titles of the several articles and
sections, and the table of contents appended to copies hereof, shall be solely
for convenience of reference and shall not affect the meaning, construction or
effect of the provisions hereof.
Section 1.4. Indenture Controls as to Conflicting Provisions. In the event
any of the provisions of this Agreement conflict in any respect with the
provisions of the Indenture and cannot be reconciled, the provisions of the
Indenture shall control.
SUBLEASE AND LEASE AGREEMENT - Page 2.
ARTICLE II
Representations
Section 2.1. Representations of the Issuer. The Issuer makes the
following representations as the basis for its undertakings herein contained:
(a) The Issuer is a municipal corporation of the State of Oregon.
Under the provisions of the Act, the Issuer has the power to enter into the
transactions contemplated by this Agreement and to carry out its obligations
hereunder. By proper action, the Issuer has been duly authorized to execute,
deliver and duly perform this Agreement.
(b) To provide for the acquisition and construction of the Project,
the Issuer will issue the Series 1990B Bonds, which will mature, bear interest,
be subject to redemption, and contain such other terms as provided in the
Indenture.
(c) The Series 1990B Bonds will be issued under and secured by the
Indenture, pursuant to which the Issuer's interest in this Agreement (except
certain rights of the Issuer to payment for expenses and indemnification) will
be pledged to the Trustee as security for payment of the principal of, premium,
if any, and interest on the Series 1990B Bonds.
(d) The Issuer has not pledged and will not pledge its interest in
this Agreement for any purpose other than to secure the Series 1990B Bonds under
the Indenture.
(e) The Issuer is not in default under any of the provisions of the
laws of the State of Oregon which default would affect its existence or its
powers referred to in subsection (a) of this Section 2.1.
(f) The Issuer has found and determined and hereby finds and
determines that all requirements of the Act with respect to the issuance of the
Series 1990B Bonds and the execution of this Agreement have been complied with
and that the issuance of the Series 1990B Bonds and the leasing and subleasing
of the Project by entering into this Agreement will be in furtherance of the
purposes of the Act.
Section 2.2. Representations of the Company. The Company makes the
following representations as the basis for its undertakings herein contained:
(a) The Company is an Oregon corporation, is in good standing in the
State of Oregon and has the power to enter into and has duly authorized, by
proper corporate action, the execution and delivery of this Agreement, the Bond
Purchase Agreement and
SUBLEASE AND LEASE AGREEMENT - Page 3.
all other documents contemplated herein have been or will be executed by the
Company.
(b) Neither the execution and delivery of this Agreement or the Bond
Purchase Agreement, the consummation of the transactions contemplated hereby and
thereby, nor the fulfillment of or compliance with the terms and conditions
hereof and thereof, conflicts with or results in a breach of any of the terms,
conditions or provisions of the Company's Articles of Incorporation or bylaws or
of any corporate actions or of any agreement or instrument to which the Company
is now a party or by which it is bound, or constitutes a default (with due
notice or the passage of time or both) under any of the foregoing, or results in
the creation or imposition of any prohibited lien, charge or encumbrance
whatsoever upon any of the property or assets of the Company under the terms of
any instruments or agreement to which the Company is now a party or by which it
is bound.
(c) The project consists of those facilities described in Exhibit A
hereto in which the Company has and will have sufficient title to carry out the
purposes of this Agreement.
(d) The Company intends to operate the Project as a pollution control
and solid waste disposal facility.
(e) All certificates, approvals, permits and authorizations of
agencies of applicable local governmental units, the State of Oregon and the
federal government have been or will be obtained.
(f) The Company has awarded or will award contracts and issue purchase
orders covering the acquisition, construction and installation of the Project.
Certain portions of the work may be awarded to or completed by the Company's own
personnel. The contracts so awarded, the purchase orders issued and the work
orders for the work to be done by the Company personnel are hereinafter called
the "Construction Contracts".
(g) The Company will have full responsibility for preparing,
administering, amending and enforcing the Construction Contracts and litigating
or settling claims thereunder, and will be entitled to all warranties,
guaranties and indemnities provided under the Construction Contracts and by law.
SUBLEASE AND LEASE AGREEMENT - Page 4.
ARTICLE III
Issuance of the Series 1990B Bonds; Financing the Project
Section 3.1. Agreement to Issue the Series 1990B Bonds; Application of
Series 1990B Bond Proceeds. To provide funds to finance the acquisition and
construction of the Project and to pay certain costs of issuance of the Bonds,
the Issuer agrees that it will issue under the Indenture, sell and cause to be
delivered to the purchasers thereof, the Series 1990B Bonds, bearing interest,
maturing, and containing such other terms as provided in the Indenture.
The net proceeds of the Series 1990B Bonds will be deposited in the
Construction Fund established under the Indenture for payment of Costs as
defined and permitted under the Indenture, except that accrued interest, if any,
will be deposited in the Bond Fund established under the Indenture for payment
of interest on the Bonds. Except as provided in Article IV of the Indenture, the
Trustee will be directed to make payments from the Construction Fund upon
receipt of a requisition from the Company, signed by an Authorized Company
Representative, stating:
(a) the Costs to which the payment relates, and with respect to
work and material, stating that such have been incorporated into the
Project substantially in accordance with the plans and specifications
therefor;
(b) the payee, which may be the Company in the case of work done
by Company personnel and in the case of reimbursement for payments
previously made by the Company for the Issuer's account (other than
payments made by way of set-off of mutual claims between the Company and
the payee), and which payee may be the Company in the case of amounts to be
paid to the Rebate Fund pursuant to Section 3.5 hereof.
(c) the amount of the payment to be made; and
(d) that the payment is due, is a proper charge against the
Construction Fund and has not. been the basis for any previous withdrawal
from the Construction Fund or from any other funds representing proceeds of
Bonds issued by the Issuer on the Company's behalf.
The Company shall have the right to enforce payments from the Construction Fund
upon compliance with the procedures set forth in this section 3.1, except during
the continuance of an Event of Default under the Indenture (as such term is
defined therein).
Section 3.2. Investment of Moneys in Funds. Any moneys held as a part
of the Bond Fund or Construction Fund shall, at the direction of an Authorized
Company Representative, which direction
SUBLEASE AND LEASE AGREEMENT - Page 5.
may be oral, but which shall be confirmed in writing, be invested or reinvested
by the Trustee in Permitted Investments. Any such direction by an Authorized
Company Representative shall expressly state that the securities to be acquired
as a result of any such investment or reinvestment by the Trustee will
constitute Permitted Investments and comply with this Section 3.2, and with the
limitations of the Indenture. If such direction is oral, the Trustee shall be
protected in acting upon such direction if the person giving such oral direction
represents himself to be an Authorized Company Representative and the Trustee
has no reason to believe otherwise. The Company shall not direct the Trustee to
make any investments or reinvestments other than those permitted by law. In
making any such investments, the Trustee may rely on directions delivered to it
pursuant to this Section, and the Trustee shall be relieved of all liability
with respect to making such investments in accordance with such directions.
Any Permitted Investments may be purchased at the offering or market
price thereof at the time of such purchase and all such investments shall mature
in such amounts and at such times, or shall be readily marketable prior to their
maturities, as the Company may direct.
The Trustee may make any and all such investments through its own bond
department. Any interest accruing on or profit realized from the investment of
any moneys held as part of the Bond Fund, the Construction Fund or the Rebate
Fund shall be credited to the respective fund or account in which such
investment is held and any loss resulting from such investment shall be charged
to the respective fund or account in which such investment is held.
For the purposes of this Section, any interest bearing deposits,
including certificates of deposit, issued by or on deposit with the Trustee
shall be deemed to be investments and not deposits.
Any moneys held as a part of the Rebate Fund shall be invested in
accordance with the provisions of Section 5.4 of the Indenture.
Section 3.3. Special Tax Certifications. The Issuer hereby certifies
to the Company that it has not been notified of any listing or proposed listing
of it by the Internal Revenue service as a bond issuer whose arbitrage
certifications may not be relied upon.
The Company hereby covenants and represents to the Issuer, and, based
upon said representations, the Issuer and the Company jointly and severally
covenant with all purchasers and holders of the Series 1990B Bonds from time to
time Outstanding
SUBLEASE AND LEASE AGREEMENT - Page 6.
that, as long as any of the Series 1990B Bonds remain Outstanding, moneys on
deposit in any fund or account in connection with the Series 1990B Bonds,
whether such moneys were derived from the proceeds of the sale of the Series
1990B Bonds or from any other sources, will not be used and the Project will not
be used in a manner which would cause the Series 1990B Bonds to be "arbitrage
bonds" within the meaning of Section 148 of the Code, or "federally guaranteed
bonds" within the meaning of Section 103(h) of the 1954 Code, and any
regulations promulgated or proposed thereunder, and the Company and the Issuer
further covenant to comply with the requirements of said Section 148 of the Code
and Section 103(h) of the 1954 Code.
Section 3.4. Issuance of Additional Bonds. If the Company is not in
default hereunder, the Issuer may by the adoption of an appropriate resolution
or resolutions, at the request of the Company, authorize the issuance of
Additional Bonds upon the terms and conditions provided herein and in Section
12.1 of the Indenture, but in no event shall the Issuer be liable for not
issuing such Additional Bonds.
Section 3.5. Rebate of Arbitrage to the United States.
(a) Upon completion of the Project, as certified by the Company to the
Trustee in accordance with Section 4.2 of the Indenture, and prior to the end of
each fifth bond year and to the retirement of the last Series 1990B Bond of the
issue, the Company shall give the Trustee a written summary of a calculation of
the rebatable arbitrage as of the date of completion of the Project or the end
of each fifth bond year or the date of retirement of the last Series 1990B Bond,
together with funds, or instructions to transfer funds, sufficient to increase
the amount in the Rebate Fund to the calculated amount of rebatable arbitrage.
The rebatable arbitrage as of the retirement of the last Series 1990B Bond of
the issue shall include attributable income after such retirement determined in
the manner provided in the Treasury regulations. The Company shall give the
Issuer copies of the summary and the funds transmittal or transfer instructions.
(b) At least 15 days prior to the due date of any payment, the Company
shall give the Trustee written instructions as to the amount, date, and manner
of payments which the Trustee is to make from the Rebate Fund to the United
States of America to comply with the requirements of Section 148(f) of the Code,
including payments of installments of at least 90% of the rebatable arbitrage
within 60 days after the end of each fifth bond year, and payment of all the
rebatable arbitrage and attributable income within 60 days after retirement of
the last Series 1990B Bond of the issue.
(c) Notwithstanding the foregoing, the requirements of Subsections (a)
and (b) of this Section 3.5 shall be deemed to be
SUBLEASE AND LEASE AGREEMENT - Page 7.
satisfied on or after the date that the Company provides the Trustee and the
Issuer with an opinion of Bond Counsel that the requirements of Section 148(f)
of the Code have been complied with.
(d) For purposes of this Section 3.5, "bond year" means a one-year
period (or shorter period from the date of issue of the Series 1990B Bonds) that
ends on the last day of a compounding period used in computing yield.
Section 3.6. Completion of Project. When the company certifies to the
Trustee and the Issuer that the Project is complete, any amounts remaining in
the Construction Fund will be applied by the Trustee in accordance with Section
4.2 of the Indenture. Such application shall constitute Rental Payments
described in Section 4.2 hereof otherwise due from the Company to the Trustee
except for any amounts transferred to the Rebate Fund. If for any reason the
amount in the Construction Fund proves insufficient to pay all Costs the Company
will pay the remainder of such Costs.
SUBLEASE AND LEASE AGREEMENT - Page 8.
ARTICLE IV
Lease and Sublease of Project; Repayment Provisions
Section 4.1. Lease and Sublease of Project.
(a) The Company leases to the Issuer, and the Issuer leases from the
Company, subject to the terms and conditions of this Agreement, and for rental
in an amount equal to the proceeds received by the Issuer from the sale of the
Series 1990B all right, title and interest of the Company in and to the Project
(the "Lease").
(b) The Issuer hereby subleases to the Company, and the Company hereby
subleases from the Issuer, upon the terms and conditions of this Agreement, all
right, title, and interest in and to the Project which the Issuer has leased
from the Company pursuant to Section 4.1(a), for the Rental Payments (as defined
in Section 4.2(a)) (the "Sublease").
Section 4.2. Rental Payments and Payment of Other Amounts Payable.
(a) The Company covenants and agrees to pay or provide for payment to
the Trustee as Rental Payments under the Sublease to the Company of the Project
pursuant to Section 4.1(b) hereof, on or before each date provided in or
pursuant to the Indenture or to meet the requirements of the Depository for the
payment of principal (whether at maturity or upon redemption or acceleration)
of, premium, if any, and/or interest on the Series 1990B Bonds until the
principal of, premium, if any, and interest on the Series 1990B Bonds shall have
been fully paid or provision for the payment thereof shall have been made in
accordance with the Indenture, in immediately available funds, for deposit in
the Bond Fund, a sum equal to the amount payable on such interest or principal
payment date or redemption or acceleration date as principal (whether at
maturity or upon redemption or acceleration), premium, if any, and interest upon
the Series 1990B Bonds as provided in the Indenture.
Each payment pursuant to this Section 4.2(a) shall at all times be
sufficient to pay the total amount of interest and principal (whether at
maturity or upon redemption or acceleration) and premium, if any, payable on the
Series 1990B Bonds on the date on which such interest, principal and premium, if
any, becomes due (whether at maturity or upon redemption or acceleration) or on
the applicable Interest Payment Date, as the case may be; provided that any
amount held by the Trustee in the Bond Fund on any due date for a Rental Payment
hereunder shall be credited against the payment due on such date to the extent
available for such purpose; and provided further that, subject to the provisions
of this paragraph, if at any time the amount held by the Trustee in the
SUBLEASE AND LEASE AGREEMENT - Page 9.
Bond Fund is sufficient to pay all of the principal of and interest and premium,
if any, on the Series 1990B Bonds as such payments become due, the Company shall
be relieved of any obligation to make any further payments under the provisions
of this Section. Notwithstanding the foregoing, if on any date the amount held
by the Trustee in the Bond Fund is insufficient to make any required payments of
principal of (whether at maturity or upon redemption or acceleration) and
interest and premium, if any, on the Series 1990B Bonds as such payments become
due, the Company shall forthwith pay or cause to be paid such deficiency as a
Rental Payment hereunder.
(b) The Company also agrees to pay to the Trustee until the principal
of, premium, if any, and interest on the Series 1990B Bonds shall have been
fully paid or provision for the payment thereof shall have been made as required
by the Indenture, (i) the annual fee of the Trustee for its ordinary Services
rendered as trustee, and its Ordinary Expenses incurred under the Indenture, as
and when the same become due, (ii) the reasonable fees, charges and expenses of
the Trustee, the Registrar, and the reasonable fees of any Paying Agent with
respect to Series 1990B Bonds as provided in the Indenture, as and when the same
become due, (iii) the reasonable fees, charges and expenses of the Trustee for
the necessary Extraordinary Services rendered by it and Extraordinary Expenses
incurred by it under the Indenture, as and when the same become due, and (iv)
the cost of printing any Series 1990B Bonds required to be furnished by the
Issuer at the expense of the Issuer.
(c) The Company also agrees to pay, within 60 days after receipt of
request for payment thereof, all reasonable expenses required to be paid by the
Company under the terms of the Bond Purchase Agreement executed by it in
connection with the sale of the Series 1990B Bonds and all reasonable expenses
of the Issuer related to the Project which are not otherwise required to be paid
by the Company under the terms of this Agreement; provided that the Issuer shall
have obtained the prior written approval of the Authorized Company
Representative for any expenditures other than those provided for herein or in
said Bond Purchase Agreement.
(d) The Company agrees to pay to the Issuer the reasonable fees,
charges and expenses of such Issuer.
(e) In the event the Company should fail to make any of the payments
required by subsection (a), (b), (c) and (d) of this Section, such payments
shall continue as obligations of the Company until such amounts shall have been
fully paid. The Company agrees to pay such amounts, together with interest
thereon until paid, to the extent permitted by law, at the rate of ten percent
(10%) per annum.
SUBLEASE AND LEASE AGREEMENT - Page 10.
Section 4.3. Unconditional Obligation. The obligations of the Company
to make the payments required by Section 4.2 hereof and to perform and observe
the other agreements on its part contained herein shall be absolute and
unconditional, irrespective of any defense or any rights of set off, recoupment
or counterclaim it might otherwise have against the Issuer, and during the term
of this Agreement, the Company shall pay the payments to be made as prescribed
in Section 4.2 and all other payments required hereunder, free of any deductions
and without abatement, diminution or set-off. Until such time as the principal
of, premium, if any, sinking fund installments, if any, and interest on the
Series 1990B Bonds shall have been fully paid, or provision for the payment
thereof shall have been made as required by the Indenture, the Company (i) will
not suspend or discontinue any payments provided for in Section 4.2 hereof; (ii)
will perform and observe all of its other covenants contained in this Agreement;
and (iii) except as provided in Section 9.7 hereof, will not terminate this
Agreement for any cause, including, without limitation, the occurrence of any
act or circumstances that may constitute failure of consideration, destruction
of or damage to the Project, commercial frustration of purpose, any change in
the tax or other laws of the United States of America or of the State of Oregon
or any political subdivision or any of these, or any failure of the Issuer or
the Trustee to perform and observe any covenant, whether express or implied, or
any duty, liability or obligation arising out of or connected with this
Agreement or the Indenture, except to the extent permitted by this Agreement.
Section 4.4. Assignment of Issuer's Rights. As security for the
payment of the Series 1990B Bonds the Issuer will assign to the Trustee the
Issuer's rights under this Agreement, including the right to receive payments
hereunder (except the right of the Issuer to receive certain payments, if any,
with respect to expenses and indemnification under Sections 4.2(c) and (d), 6.3,
8.2 and 8.3 hereof and with respect to any rebatable arbitrage payments made in
accordance with Section 3.5 hereof), and the Issuer hereby directs the Company
to make the payments required hereunder (except such payments for expenses and
indemnification) directly to the Trustee. The Company hereby assents to such
assignment and agrees to make payments directly to the Trustee without defense
or set-off by reason of any dispute between the Company and the Issuer or the
Company and the Trustee.
Section 4.5. Amounts Remaining in Funds. It is agreed by the parties
hereto that after payment in full of (i) the Series 1990B Bonds or after
provision for such payment shall have been made as provided in the Indenture,
(ii) the fees, charges and expenses of the Trustee, the Bond Registrar and
Paying Agents in accordance with the Indenture and (iii) all other amounts
required to be paid under this Agreement and the Indenture, any amounts
SUBLEASE AND LEASE AGREEMENT - Page 11.
remaining in any fund held by the Trustee under the Indenture shall belong,
subject to the requirements of Section 6.2 of the Indenture, to the Company and
be paid to the Company by the Trustee.
Section 4.6. Quiet Enjoyment.
(a) The Company will not take any action, other than pursuant to
Section 5.1 or Article VI hereof, to prevent the Issuer from having quiet and
peaceable possession and enjoyment of the Project during the terms of the Lease
and will, at the request of the Issuer and at the Company's cost, cooperate with
the Issuer in order that the Issuer may have quiet and peaceable possession and
enjoyment of the Project. This covenant of quiet enjoyment shall be deemed to
not have been breached by the sale or other disposition by the Company of its
interest in the Project.
(b) The Issuer will maintain the Lease in full force and effect in
accordance with its terms, and will not take any action, other than pursuant to
Section 5.1 hereof, to prevent the Company from having quiet and peaceable
possession and enjoyment of the Project during the term of the Sublease and
will, at the request of the Company and at the Company's cost, cooperate with
the Company in order that the Company may have quiet and peaceable possession
and enjoyment of the Project.
SUBLEASE AND LEASE AGREEMENT - Page 12.
ARTICLE V
Special Covenants and Agreements
Section 5.1. Right of Access to the Project. The Company agrees that
during the term of this Agreement the Issuer, the Trustee, and the duly
authorized agents of either of them shall have the right at all reasonable times
during normal business hours to enter upon the site of the Project to examine
and inspect the Project; provided, however, that this right is subject to
federal and State of Oregon laws and the rules and regulations applicable to the
Facility. The rights of access hereby reserved to the Issuer and the Trustee may
be exercised only after such agent shall have executed release of liability and
secrecy agreements if requested by the Company in the form then currently used
by the Company, and nothing contained in this Section or in any other provision
of this Agreement shall be construed to entitle the Issuer or the Trustee to any
information or inspection involving the confidential know-how of the Company.
Section 5.2. The Company; Maintenance of its Existence; Assignments.
(a) To the extent permitted by law and its Articles of Incorporation,
the Company agrees that during the term of this Agreement it will maintain its
existence as a corporation organized under the laws of one of the States of the
United States and will remain duly qualified to do business in the State of
Oregon, will not dissolve or otherwise dispose of all or substantially all of
its assets and will not combine or consolidate with or merge into another person
or permit one or more persons to consolidate with or merge into it; provided,
however, that the Company may so combine, consolidate with, or merge into
another person legally existing under the laws of one of the states of the
United States, or permit one or more persons to consolidate with or merge into
it, or sell or otherwise transfer to another person all or substantially all of
its assets as an entity and thereafter dissolve, provided that: (i) the
surviving, resulting, or transferee person, as the case may be, assumes and
agrees in writing to pay and perform all of the obligations of the Company
hereunder, (ii) the surviving, resulting, or transferee person, as the case may
be, qualifies to do business in the State of Oregon, and (iii) the surviving,
resulting, or transferee person, as the case may be, has a net worth (as
determined in accordance with generally accepted accounting principles) at least
equal to the net worth of the Company at the end of the fiscal quarter
immediately preceding the effective date of such consolidation, merger, sale or
transfer. The Company may dispose of all or substantially all of its assets or
combine or consolidate with or merge into another person other than as provided
in (i) through (iii) above if the Company has
SUBLEASE AND LEASE AGREEMENT - Page 13.
obtained the prior written consent of the Issuer and the holders of at least
66-2/3% in aggregate principal amount of Outstanding Series 1990B Bonds. Said
consent, with respect to the Issuer shall be given or denied within 30 days
after the Issuer receives the Company's written request for said approval. If
the Issuer does not act within 30 days after such written request is received,
such consent shall be deemed to be given.
Notwithstanding any other provision of this Section 5.2(a), the
Company need not comply with any of the provisions of Section 5.2(a) above if,
at the time of such merger, combination, sale of assets, dissolution or
reorganization, the Series 1990B Bonds will be paid or deemed paid as provided
in Article VI of the Indenture.
(b) The rights and obligations of the Company under this Agreement may
be assigned by the Company to any person in whole or in part, subject, however,
to each of the following conditions:
(i) No assignment other than pursuant to subsection (a) of this
Section shall relieve the Company from primary liability for any of its
obligations hereunder, and in the event of any assignment not pursuant to
subsection (a) of this Section the Company shall continue to remain
primarily liable for the payments specified in Section 4.2 hereof and for
performance and observance of the other agreements on its part herein
provided to be performed and observed by it.
(ii) Any assignment from the Company shall retain for the Company
such rights and interests as will permit it to perform its obligations
under this Agreement, and any assignee from the Company shall assume in
writing the obligations of the Company hereunder to the extent of the
interest assigned.
(iii) The Company shall, within thirty days after delivery
thereof, furnish or cause to be furnished to the Issuer and the Trustee a
true and complete copy of each such assignment together with an instrument
of assumption.
Section 5.3. Records and Financial Statements of the Company. The
Company shall, within 120 days after the close of each fiscal year, submit to
the Issuer and to the Trustee, if requested, financial statements with respect
to the Company for such fiscal year. The Trustee's only responsibility with
respect to such financial statements shall be to make said financial statements
available for inspection by Bondholders upon reasonable notice at the Principal
Office of the Trustee. The Trustee shall be permitted at all reasonable times
during the term of this Agreement to examine the books and records of the
Company with respect to the Project, subject to the limitations expressed in
Section 5.1.
SUBLEASE AND LEASE AGREEMENT - Page 14.
Section 5.4. Maintenance and Repair; Taxes; Utility and Other Charges.
The Company agrees to maintain the Project, or cause the Project to be
maintained, during the term of this Agreement (i) in as reasonably safe
condition as its operations shall permit and (ii) in good repair and in good
operating condition, ordinary wear and tear excepted, making from time to time
all necessary repairs thereto and renewals and replacements thereof.
The Company agrees to pay or cause to be paid during the term of this
Agreement all taxes, governmental charges of any kind lawfully assessed or
levied upon the Project or any part thereof, including any taxes levied against
the Project which, if not paid, will become a charge on the receipts from the
Project prior to or on a parity with the charge thereon and the pledge or
assignment thereof to be created therefrom or under this Agreement, all utility
and other charges incurred in the operation, maintenance, use, occupancy and
upkeep of the Project and all assessments and charges lawfully made by any
governmental body for public improvements that may be secured by a lien on the
Project, provided that with respect to special assessments or other governmental
charges that may lawfully be paid in installments over a period of years, the
Company shall be obligated to pay only such installments as are required to be
paid during the term of this Agreement. The Company may, at the Company's
expense and in the Company's name, in good faith, contest any such taxes,
assessments and other charges and, in the event of any such contest, may permit
the taxes, assessments or other charges so contested to remain unpaid during
that period of such contest and any appeal therefrom unless by such nonpayment
the Project or any part thereof will be subject to loss or forfeiture.
Section 5.5. Qualification in Oregon. The Company agrees that
throughout the term of the Agreement it, or any successor or assignee as
permitted by Section 5.2, will be qualified to do business in the State of
Oregon.
Section 5.6. Tax Exempt Status of Series 1990B Bonds. It is the
intention of the parties hereto that interest on the Series 1990B Bonds shall be
and will remain exempt from federal income taxation, and to that end the
covenants and agreements of the Issuer and the Company in this Section are for
the benefit of the Trustee and each and every holder of the Series 1990B Bonds.
The Issuer covenants and agrees that it has not taken and will not
take any action which results in interest paid on the Series 1990B Bonds being
included in the federal gross income of the holders of the Series 1990B Bonds
for purposes of federal income taxation; and the Company covenants and agrees
that it has not taken or authorized and will not take or authorize any action
which will cause the interest on the Series 1990B Bonds to become subject to
federal income taxation pursuant to the provisions of
SUBLEASE AND LEASE AGREEMENT - Page 15.
Section 103(b) of the 1954 Code or Section 103(b) of the Code; provided that
neither the Company nor the Issuer shall have violated these covenants if the
interest on any of the Series 1990B Bonds becomes taxable to a person solely
because such person is a "substantial user" of the Project or a "related person"
within the meaning of Section 147(a) of the Code; and provided further that none
of the covenants and agreements herein contained shall require either the
Company or the Issuer to enter an appearance or intervene in any administrative,
legislative or judicial proceeding in connection with any changes in applicable
laws, rules or regulations or in connection with any decisions of any court or
administrative agency or other governmental body affecting the taxation of
interest on the Series 1990B Bonds.
SUBLEASE AND LEASE AGREEMENT - Page 16.
ARTICLE VI
Events of Default and Remedies
Section 6.1. Events of Default. Any one of the following which occurs
and continues shall constitute an Event of Default:
(a) failure by the Company to pay any amounts required to be paid
under Section 4.2(a) hereof which failure results in an Event of Default under
Section 8.1 of the Indenture either immediately or after the expiration of any
applicable grace period; or
(b) failure of the Company to observe and perform any covenant,
condition or agreement on its part required to be observed or performed by this
Agreement, other than making the payments referred to in (a) above, which
continues for a period of 30 days after written notice, which notice shall
specify such failure and request that it be remedied, given to the Company by
the Issuer or the Trustee, unless the Issuer and the Trustee shall agree in
writing to any extension of such time; provided, however, that if the failure
stated in the notice cannot be corrected within such period, the Issuer and the
Trustee will not unreasonably withhold their consent to an extension of such
time if corrective action is instituted within such period and diligently
pursued until the default is corrected; or
(c) an Act of Bankruptcy of the Company.
The provisions of subsection (b) of this section are subject to the limitation
that the Company shall not be deemed in default if and so long as the Company is
unable to carry out its agreements hereunder by reason of strikes, lockouts or
other industrial disturbances; acts of public enemies; orders of any kind of the
government of the United States or of the State of Oregon or any of their
departments, agencies, or officials, or any civil or military authority;
insurrections, riots, epidemics, landslides; lightning; earthquake; fire;
hurricanes; storms; floods; washouts; droughts; arrests; restraint of government
and people; civil disturbances; explosions; breakage or accident to machinery or
transmission facilities; partial or entire failure of utilities; or any other
cause or event not reasonably within the control of the Company; it being agreed
that the settlement of strikes, lockouts and other industrial disturbances shall
be entirely within the discretion of the Company, and the Company shall not be
required to make settlement of strikes, lockouts and other industrial
disturbances by acceding to the demands of the opposing party or parties when
such course is, in the judgment of the Company, unfavorable to the Company. This
limitation shall not apply to any default under subsections (a) or (c) of this
Section.
SUBLEASE AND LEASE AGREEMENT - Page 17.
Section 6.2. Remedies On Default. Whenever any Event of Default shall
have occurred and shall continue.
(a) The Trustee, by written notice to the Company, shall declare the
amounts payable under Section 4.2(a) of this Agreement to be immediately due and
payable as set forth in Section 8.2 of the Indenture.
(b) The Trustee may have access to and may inspect, examine and make
copies of the books and records and any and all accounts, data and federal
income tax and other tax returns of the Company, subject to the limitations
provided in Section 5.1.
(c) The Issuer or the Trustee may take whatever action at law or in
equity as may be necessary or desirable to collect the payments and other
amounts then due and thereafter to become due or to enforce performance and
observance of any obligation, agreement or covenant of the Company under this
Agreement.
In case the Trustee or the Issuer shall have proceeded to enforce its
rights under this Agreement and such proceedings shall have been discontinued or
abandoned for any reason or shall have been determined adversely to the Trustee
or the Issuer, then, and in every such case, the Company, the Trustee and the
Issuer shall be restored respectively to their several positions and rights
hereunder, and all rights, remedies and powers of the Company, the Trustee and
the Issuer shall continue as though no such action had been taken.
The Company covenants that, in case an Event of Default shall occur
with respect to the payment of any Rental Payment payable under Section 4.2(a)
hereof, then, upon demand of the Trustee, the Company will pay or cause to be
paid to the Trustee the whole amount that then shall have become due and payable
under said Section, with interest, to the extent permitted by law, on the amount
then overdue at the rate of ten percent (10%) per annum until such amount has
been paid.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee shall be entitled and empowered to institute any action or
proceeding at law or in equity for the collection of the sums so due and unpaid,
and may prosecute any such action or proceeding to judgment or final decree, and
may enforce any such judgment or final decree against the Company and collect in
the manner provided by law the moneys adjudged or decreed to be payable.
In case proceedings shall be pending for the bankruptcy or for the
reorganization of the Company under the federal bankruptcy laws or any other
applicable law, or in case a receiver or trustee shall have been appointed for
the property of the Company or in the case of any other similar judicial
proceedings
SUBLEASE AND LEASE AGREEMENT - Page 18.
relative to the Company, or the creditors or property of the Company, then the
Trustee shall be entitled and empowered, by intervention in such proceedings or
otherwise, to file and prove a claim or claims for the whole amount owing and
unpaid pursuant to this Agreement and, in case of any judicial proceedings, to
file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee allowed in such judicial
proceedings relative to the Company, its creditors or its property, and to
collect and receive any moneys or other property payable or deliverable on any
such claims, and to distribute such amounts as provided in the Indenture after
the deduction of its charges and expenses. Any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized to make such payments to the
Trustee, and to pay to the Trustee any amount due it for compensation and
expenses, including expenses and fees of counsel incurred by it up to the date
of such distribution.
Section 6.3. Agreement to Pay Attorneys' Fees and Expenses. In the
event the Company should default under any of the provisions of this Agreement
and the Issuer or the Trustee should employ attorneys or incur other expenses
for the collection of the payments due under this Agreement or the enforcement
of performance or observance of any obligation or agreement on the part of the
Company herein contained, the Company agrees to pay to the Issuer or the Trustee
the reasonable fees of such attorneys and such other expenses so incurred by the
Issuer or the Trustee.
Section 6.4. No Remedy Exclusive. No remedy herein conferred upon or
reserved to the Issuer or the Trustee is intended to be exclusive of any other
available remedy or remedies, but each and every such remedy shall be cumulative
and shall be in addition to every other remedy given under this Agreement or now
or hereafter existing at law or in equity or by statute. No delay or omission to
exercise any right or power accruing upon any default shall impair any such
right or power or shall be construed to be a waiver thereof, but any such right
and power may be exercised from time to time and as often as may be deemed
expedient. In order to entitle the Issuer or the Trustee to exercise any remedy
reserved to it in this Article, it shall not be necessary to give any notice,
other than such notice as may be herein expressly required. Such rights and
remedies as are given the Issuer hereunder shall also extend to the Trustee, and
the Trustee and the holders of the Series 1990B Bonds shall be deemed third
party beneficiaries of all covenants and agreements herein contained.
Section 6.5. No Additional Waiver Implied By One Waiver. In the event
any agreement or covenant contained in this Agreement should be breached by the
Company and thereafter waived by the Issuer or the Trustee, such waiver shall be
limited to the
SUBLEASE AND LEASE AGREEMENT - Page 19.
particular breach so waived and shall not be deemed to waive any other breach
hereunder.
SUBLEASE AND LEASE AGREEMENT - Page 20.
ARTICLE VII
Prepayment
Section 7.1. Redemption of Series 1990B Bonds with Prepayment Moneys.
By virtue of the assignment of the rights of the Issuer under this Agreement to
the Trustee as is provided in Section 4.4 hereof, the Company agrees to and
shall pay directly to the Trustee any amount permitted or required to be paid by
it under this Article VII. The Trustee shall use the moneys so paid to it by the
Company to redeem the Series 1990B Bonds on the date set for such redemption
pursuant to Section 7.5 hereof.
Section 7.2. Optional Prepayment. The Company shall have the option to
prepay the amounts payable under Section 4.2 hereof with respect to the Series
1990B Bonds by paying or providing for payment to the Trustee, for deposit in
the appropriate account of the Bond Fund, the amount set forth in Section 7.4
hereof, under circumstances set forth in Section 3.3(a) and (b) of the
Indenture.
Section 7.3. Mandatory Prepayment. The Company shall have and hereby
accepts the obligation to prepay or provide for prepayment of Rental Payments
with respect to the Series 1990B Bonds to the extent mandatory redemption of the
Series 1990B Bonds is required pursuant to Section 3.4 of the Indenture.
In the case of any of the events stated in Section 3.4 of the
Indenture, the Company must satisfy its obligation to prepay or provide for
prepayment of Rental Payments within 90 days after such event.
The amount payable by the Company in the event of a prepayment
required by this Section shall be determined as set forth in Section 7.4 and
shall be deposited in the Bond Fund.
Section 7.4. Amount of Prepayment. In the case of a prepayment of the
entire amount due hereunder pursuant to Section 7.2 or 7.3 hereof, the amount to
be paid shall be a sum sufficient, together with other funds and any securities
deposited with the Trustee and available for such purpose, to pay (1) the
principal of, and premium, if any, all Series 1990B Bonds Outstanding on the
redemption date specified in the notice of redemption, plus interest accrued and
to accrue to the redemption date, (2) all reasonable and necessary fees and
expenses of the Issuer, the Trustee, and any Paying Agent accrued and to accrue
through final payment of the Series 1990B Bonds and (3) all other liabilities of
the Company accrued and to accrue under this Agreement.
In the case of partial prepayment, the amount payable shall be a sum
sufficient, together with other funds deposited
SUBLEASE AND LEASE AGREEMENT - Page 21.
principal amount of and premium, if any, and accrued interest on the Series
1990B Bonds to be redeemed, as provided in the Indenture, and to pay expenses of
redemption of such Series 1990B Bonds.
Section 7.5. Notice of Prepayment. To exercise an option granted in or
to perform an obligation required by this Article VII, the Company shall, at
least 15 days prior to the date on which the Trustee must give notice by mail to
the Bondholders of any prepayment, give written notice to the Issuer and the
Trustee specifying the date upon which any prepayment will be made (which date
shall be the date of redemption of the Series 1990B Bonds contemplated by such
option or obligation), the redemption premium, if any and the principal amount
of any such redemption. If the Company fails to give such notice of a prepayment
required by this Section 7.5, such notice may be given by the Issuer, by the
Trustee or by any holder or holders of 10% or more in aggregate principal amount
of the Series 1990B Bonds Outstanding. The Issuer and the Trustee, at the
request of the Company or any such Bondholder, shall forthwith take all steps
necessary under the applicable provisions of the Indenture (except that neither
the Issuer nor the Trustee shall be required to make payment of any money
required for such redemption except from Revenues) to effect redemption of all
or part of the then Outstanding Series 1990B Bonds as the case may be, on the
earliest practicable date thereafter on which such redemption may be made under
applicable provisions of the Indenture.
SUBLEASE AND LEASE AGREEMENT - Page 22.
ARTICLE VIII
Non-Liability of Issuer; Expenses; Indemnification
Section 8.1. Non-Liability of Issuer. The Issuer shall not be
obligated to pay the principal of, or premium, if any, or interest on the Series
1990B Bonds except from Revenues. The Company hereby acknowledges that the
Issuer's sole source of moneys to repay the Series 1990B Bonds will be provided
by the payments made by the Company pursuant to this Agreement, together with
other Revenues, including investment income on certain funds and accounts held
by the Trustee under the Indenture, and hereby agrees that if the payments to be
made hereunder shall ever prove insufficient to pay all principal of, and
premium, if any, and interest on the Series 1990B Bonds as the same shall become
due (whether by maturity, redemption, acceleration or otherwise), then upon
notice from the Trustee, the Company shall pay such amounts as are required from
time to time to make up any deficiency or default in the payment of such
principal, premium or interest, including but not limited to, any deficiency
caused by acts, omissions, nonfeasance or malfeasance on the part of the
Trustee, the Company, the Issuer or any third party. Provided, however, that
such payment shall not constitute a waiver of any right or remedy which the
Company may possess to recover such payment from any party whose acts,
omissions, nonfeasance or malfeasance has caused or contributed to such
deficiency.
Section 8.2. Expenses. The Company covenants and agrees to pay and to
indemnify the Issuer and the Trustee against all costs and charges, including
reasonable fees and disbursements of attorneys, accountants, consultants and
other experts (including such fees and costs at trial or on appeal), incurred in
good faith in connection with this Agreement, the Series 1990B Bonds or the
Indenture.
Section 8.3. Indemnification. The Company releases the Issuer and the
Trustee from, and covenants and agrees that neither the Issuer nor the Trustee
shall be liable for, and covenants and agrees, to the extent permitted by law,
to indemnify, defend and hold harmless the Issuer and the Trustee and their
officers, employees and agents from and against, any and all losses, claims,
damages, injuries (including death), liabilities or expenses, of every
conceivable kind, character and nature whatsoever arising out of, resulting from
or in any way connected with (1) the Project, or the conditions, occupancy, use,
possession, conduct or management of, or work done in or about, or from the
planning, design, acquisition, installation or construction of the Project or
any part thereof; (2) the issuance of any Series 1990B Bonds or any
certifications or representations made in connection therewith and the carrying
out of any of the transactions contemplated by the Series 1990B Bonds and this
Agreement; (3) the Trustee's
SUBLEASE AND LEASE AGREEMENT - Page 23.
acceptance or administration of the trusts under the Indenture, or the exercise
or performance of any of its powers or duties under the Indenture; or (4) any
untrue statement of any material fact necessary to make the statements made not
misleading, in any official statement or other offering circular utilized by the
Issuer or any underwriter or placement agent in connection with the sale of any
Series 1990B Bonds; or (5) the presence in, on, under or about the Project or
the real property constituting the Trojan Nuclear Power Plant (the "Site"), upon
which the Project is to be located, or any discharge or release in or from the
Project or the Site of any Hazardous Substances, or the Company's use, analysis,
storage, transportation, disposal, release, threatened release, discharge or
generation of Hazardous Substances, to, in, on, under, about or from the Project
or the Site, or the Company's failure to comply with any Hazardous Substance
Law; provided that (i) such indemnity of Issuer shall only be to the extent that
the Issuer's liability results from the Issuer's participation in this Agreement
or the transactions contemplated hereunder, (ii) with respect to the Trustee,
such indemnity referred to in subsection (5) above shall only be to the extent
that the Trustee's liability results from the Trustee's participation in the
transactions contemplated under the Indenture, and (iii) any indemnity provided
herein shall not be required for damages, losses, claims, liabilities or
expenses of any conceivable kind, nature or character, that result from
negligence or willful misconduct on the part of the party seeking such
indemnity. The Company further covenants and agrees, to the extent permitted by
law, to pay or to reimburse the Issuer and the Trustee and their officers,
employees and agents for any and all costs, reasonable attorneys fees (including
such fees and costs at trial or on appeal), liabilities or expenses incurred in
connection with investigating, defending against or otherwise in connection with
any such losses, claims, damages, liabilities, expenses or actions, except to
the extent that the same arise out of the negligence or willful misconduct of
the party claiming such payment or reimbursement. The provisions of this Section
shall survive the retirement of the Series 1990B Bonds.
As used in this Section, the term "Hazardous Substance Laws" means all
local, state and federal laws, ordinances, regulations and orders relating to
industrial hygiene, environmental protection or the use, analysis, generation,
manufacture, storage, disposal or transportation of any Hazardous Substances.
As used in this Section, the term "Hazardous Substance or Substances"
means any hazardous or toxic substances, materials or wastes, including, but not
limited to, those substances, materials and wastes listed in the United States
Department of Transportation Hazardous Materials Table or by the Environmental
Protection Agency as hazardous substances, and amendments thereto, or such
substances, materials and wastes which are or become
SUBLEASE AND LEASE AGREEMENT - Page 24.
regulated under any applicable local, state or federal law including, without
limitation, any material waste or substance which is (a) petroleum, (b)
asbestos, (c) polychlorinated biphenyls, (d) defined as a "hazardous waste",
"extremely hazardous waste", "restricted hazardous waste", "hazardous material",
or "hazardous substance" under Oregon law, (e) designated as a "hazardous
substance" pursuant to Section 311 of the Clear Xxxxx Xxx, 00 Xxxxxx Xxxxxx
Code, Section 1251 et seq. (33 United States Code, Section 1321) or listed
pursuant to Section 307 of the Clean Water Act (33 United States Code, Section
1317), (f) defined as a "hazardous waste" pursuant to Section 1004 of the
Resource Conservation and Recovery Act, 42 United States Code, Section 6901, et
seq. (42 United States Code, Section 6903) or (g) defined as a "hazardous
substance" pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 United States Code, Section 9601, et seq.
(00 Xxxxxx Xxxxxx Code, Section 6901).
Section 8.4. Management. This Agreement is entered into by the Issuer
solely as part of a plan to finance the construction of pollution control and
solid waste disposal facilities. The Issuer has assigned its rights under this
Agreement to the Trustee as security for the payment of the Series 1990B Bonds.
This Agreement does not grant to the Issuer any right to participate in the
management of the Project.
SUBLEASE AND LEASE AGREEMENT - Page 25.
ARTICLE IX
Miscellaneous
Section 9.1. Notices. All notices, certificates or other
communications shall be deemed sufficiently given on the day on which the same
have been mailed by certified mail, postage prepaid, addressed to the Issuer,
the Company or the Trustee, as the case may be, as follows:
To the Issuer: Port of Helens, Oregon
X.X. Xxx 000
Xx. Xxxxxx, Xxxxxx 00000
Attention: General Manager
To the Company: Portland General Electric Company
000 X.X. Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Treasurer
To the Trustee: Security Pacific Bank Oregon
X.X. Xxx 0000
Xxxxxxxx, Xxxxxx 00000
Attn: Corporate Trust Division
A duplicate copy of each notice, certificate or other communication given
hereunder by either the Issuer or the Company to the other shall also be given
to the Trustee. The Issuer, the Company and the Trustee may, by notice given
hereunder, designate any different addresses to which subsequent notices,
certificates or other communications shall be sent.
Section 9.2. Severability. If any provision of this Agreement shall be
held or deemed to be, or shall in fact be, illegal, inoperative or
unenforceable, the same shall not affect any other provision or provisions
herein contained or render the same invalid, inoperative, or unenforceable to
any extent whatever.
Section 9.3. Execution of Counterparts. This Agreement may be
simultaneously executed in several counterparts, each of which shall be an
original and all of which constitute but one and the same instrument; provided,
however, that for purposes of perfecting a security interest in this Agreement
on behalf of the Trustee under Chapter 79, Oregon Revised Statutes, only the
counterpart of this Agreement delivered to the Trustee shall be deemed the
original.
Section 9.4. Amendments, Changes and Modifications. Except as
otherwise provided in this Agreement or the Indenture, subsequent to the initial
issuance of the Series 1990B Bonds and
SUBLEASE AND LEASE AGREEMENT - Page 26.
prior to their payment in full, or provision for such payment having been made
as provided in the Indenture, this Agreement may not be effectively amended,
changed, modified, altered or terminated without the written consent of the
Trustee.
Section 9.5. Governing Law. This Agreement shall be governed
exclusively by and construed in accordance with the applicable laws of the State
of Oregon.
Section 9.6. Authorized Company Representative. Whenever under the
provisions of this Agreement or the Indenture the approval of the Company is
required or the Issuer or the Trustee is required to take some action at the
request of the Company, such approval or such request shall be given on behalf
of the Company by the Authorized Company Representative, and the Issuer and the
Trustee shall be authorized to act on any such approval or request and neither
party hereto shall have any complaint against the other or against the Trustee
as a result of any such action taken.
Section 9.7. Term of the Agreement. This Agreement shall be in full
force and effect from the date hereof and shall continue in effect as long as
any of the Series 1990B Bonds are Outstanding or the Trustee holds any moneys
under the Indenture, whichever is later. All representations and certifications
by the Company as to all matters affecting the tax-exempt status of the Series
1990B Bonds shall survive the termination of this Agreement.
Section 9.8. Binding Effect. This Agreement shall inure to the benefit
of and shall be binding upon the Issuer, the Company and their respective
successors and assigns; subject, however, to the limitations contained in
Section 5.2 hereof.
IN WITNESS WHEREOF, the Issuer and the Company have caused this
Agreement to be executed in their names, and the Issuer has caused this
Agreement to be attested by its duly authorized officer, all as of the date
first above written.
XXXX XX XX. XXXXXX, XXXXXX
By: /s/ [illegible]
------------------------------
President
Attest:
By: /s/ [illegible]
------------------------------
Secretary
PORTLAND GENERAL ELECTRIC COMPANY
By: /s/ [illegible]
------------------------------
Assistant Treasurer
SUBLEASE AND LEASE AGREEMENT - Page 27.
EXHIBIT A
DESCRIPTION OF PROJECT FACILITIES
The Project Facilities consist of certain pollution control, sewage
and solid waste disposal facilities constructed or to be constructed for use in
connection with the operation of the Trojan Nuclear Power Plant (the "Plant")
located in the Port of St. Helens, Columbia County, Oregon.
1. Pollution Control Facilities. The Steam Generator Blowdown System
("SGBS") treats coolant letdown from the Plant's four steam generators. The
major components of the SGBS include blowdown controls and piping for each of
the four steam generators, a blowdown flash tank, a blowdown heat exchanger,
pumps and blowdown demineralizer vessels and piping, extraction steam lines and
associated piping for steam and condensate return to the main condenser, and
bypass lines to route condensate to the cooling water system or extraction steam
to the a feedwater heater for recovery of usable heat.
2. Sewage Facilities. The Sewage Facilities consist of sewage
collection and treatment facilities installed in connection with the original
construction and start-up of the Plant as well as facilities installed or to be
installed in connection with construction of new buildings and facilities at the
Plant.
3. Solid Waste Facilities. The Solid Waste Facilities include the
Spent Fuel Storage and Handling System installed in connection with the
construction of the Plant, certain improvements relating to the Spent Fuel
Storage and Handling System, and facilities to be used in connection with the
storage and shipping of certain low level solid radioactive waste.
SUBLEASE AND LEASE AGREEMENT - Page 28.
