LEASE SUPPLEMENT NO. 5
THIS LEASE SUPPLEMENT NO. 5, dated as of April 30, 2004, is by and between
Portland General Electric Company, an Oregon corporation (herein, together with
its permitted successors and assigns, "Lessee"), and Xxxxx Fargo Bank Northwest,
N.A. (successor to First Interstate Bank of Oregon, N.A., formerly known as
First National Bank of Oregon), a national banking association, not in its
individual capacity but solely as trustee (herein, together with its permitted
successors and assigns "Lessor"), under a Trust Agreement dated as of September
1, 1979 between Lessor and the Owner Participant named therein (as amended from
time to time, the "Trust Agreement").
WHEREAS, Lessee and Lessor entered into a Lease Agreement dated as of
September 1, 1979, as supplemented by Lease Supplement No. 1 dated November 7,
1979, Lease Supplement No. 2 dated January 23, 1980, Lease Supplement No. 3
dated January 26, 1993, Lease Supplement No. 4 dated as of September 1, 1994 and
as supplemented by this Lease Supplement No. 5 (the "Lease"). Capitalized terms
not otherwise defined herein have the meanings ascribed to them in the Lease;
and
WHEREAS, pursuant to Section 19 and 28 of the Lease Lessee has exercised
its option to renew the Lease for an initial renewal period of five years
commencing upon expiration of the Basic Term.
WHEREAS, Lessee and Lessor desire to memorialize such renewal of the Lease.
NOW, THEREFORE, in consideration of the promises set forth herein, the
parties hereby agree as follows:
1. Pursuant to Section 19 of the Lease, the Lease shall be renewed for an
additional five years (the "Initial Renewal Period") which Initial Renewal
Period shall commence at the expiration of the Basic Term.
2. Basic Rent during the Initial Renewal Period shall be as set forth
below, and Lessee agrees to pay such Basic Rent on the dates set forth opposite
each payment of Basic Rent:
Date Basic Rent
---- ----------
July 23, 2005 $831,790.74
January 23, 2006 $831,790.74
July 23, 2006 $831,790.74
January 23, 2007 $831,790.74
July 23, 2007 $831,790.74
January 23, 2008 $831,790.74
July 23, 2008 $831,790.74
January 23, 2009 $831,790.74
July 23, 2009 $831,790.74
January 23, 2010 $831,790.74
3. Lessee and Lessor agree to the following amounts as the Stipulated Loss
Value during the Initial Renewal Period on the dates set forth opposite each
amount of the Stipulated Loss Value:
Stipulated
----------
Date Loss Value
---- ----------
July 23, 2005 $7,859,920
January 23, 2006 $7,859,920
July 23, 2006 $7,859,920
January 23, 2007 $7,859,920
July 23, 2007 $7,859,920
January 23, 2008 $7,859,920
July 23, 2008 $7,859,920
January 23, 2009 $7,859,920
July 23, 2009 $7,859,920
January 23, 2010 $7,859,920
4. No Default has occurred or is continuing.
5. This instrument is supplemental to the Lease. As supplemented and
amended by this instrument, the Lease is in all respects ratified, approved and
confirmed, and the Lease and this instrument shall together constitute one and
the same instrument.
6. This instrument is being executed in more than one counterpart, each of
which shall be deemed an original, but all such counterparts shall together
constitute but one and the same instrument. Each counterpart has been
prominently marked to identify the party to whom originally delivered. Only the
counterpart marked "Lessor's Copy" and containing the receipt therefore executed
by Indenture Trustee on the signature page thereof shall evidence the monetary
obligations of Lessee hereunder and thereunder. To the extent, if any, that this
instrument constitutes chattel paper (as such term is defined in the Uniform
Commercial Code as in effect in any applicable jurisdiction), no security
interest in this instrument may be created by the transfer or possession of any
counterpart thereof other than the counterpart marked "Lessor's Copy" and
containing the receipt therefore executed by Indenture Trustee on or immediately
following the signature page thereof.
7. Lessor is entering into this instrument in its fiduciary capacity under
the Trust Agreement and shall have no personal liability hereunder except as
expressly provided in the Lease or the Trust Agreement.
8. This instrument shall be governed by and construed in accordance with
the laws of the State of Oregon, without principles of conflicts of laws.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed under seal by their respective officers thereunto duly authorized.
PORTLAND GENERAL, ELECTRIC
COMPANY, as Lessee
By /s/ Xxxxx X. Xxxx
-----------------------------------------------
Title: EVP & CFO
--------------------------------------------
XXXXX FARGO BANK NORTHWEST, N.A.,
not in its individual capacity but solely as trustee
and as Lessor
By
-----------------------------------------------
Title:
--------------------------------------------
[Signature Page to Lease Supplement No. 5]
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed under seal by their respective officers thereunto duly authorized.
PORTLAND GENERAL, ELECTRIC
COMPANY, as Lessee
By
-----------------------------------------------
Title:
--------------------------------------------
XXXXX FARGO BANK NORTHWEST, N.A.,
not in its individual capacity but solely as trustee
and as Lessor
By /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------------
Title: XXXXXXX X. XXXXXX
--------------------------------------------
VICE PRESIDENT
[Signature Page to Lease Supplement No. 5]
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IN WITNESS WHEREOF, the parties hereto have consented to this instrument.
U.S. BANK NATIONAL ASSOCIATION, not
in its individual capacity but
solely as Indenture Trustee
By /s/ Xxxxx X. XxXxxxxx
---------------------------------------
Title: Vice President
------------------------------------
ICON/XXXXXXXX FACILITY LLC, as Owner
Participant
By: ICON Cash Flow Partners L.P. Seven
XCON Cash Flow Partners L.P. Six
ICON Cash Flow Partners L.P. Series C
ICON Income Fund Eight A L.P.,
its sole members
By: ICON Capital Corp, each such entity's
general partner
By
---------------------------------------
Title:
------------------------------------
PRINCIPAL LIFE INSURANCE COMPANY,
as Loan Participant
By: Principal Global Investors, LLC
a Delaware limited liability company,
its authorized signatory
By
---------------------------------------
Title:
------------------------------------
By
---------------------------------------
Title:
------------------------------------
[Signature Page to Lease Supplement No. 5]
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IN WITNESS WHEREOF, the parties hereto have consented to this instrument.
U.S. BANK NATIONAL ASSOCIATION, not
in its individual capacity but
solely as Indenture Trustee
By
---------------------------------------
Title:
------------------------------------
ICON/XXXXXXXX FACILITY LLC, as Owner
Participant
By: ICON Cash Flow Partners L.P. Seven
ICON Cash Flow Partners L.P. Six
ICON Cash Flow Partners L.P. Series C
ICON Income Fund Eight A L.P.,
its sole members
By: ICON Capital Corp, each such entity's
general partner
By /s/ Xxxx X. Xxxxx
---------------------------------------
Title: President
------------------------------------
PRINCIPAL LIFE INSURANCE COMPANY,
as Loan Participant
By
---------------------------------------
Title:
------------------------------------
By
---------------------------------------
Title:
------------------------------------
[Signature Page to Lease Supplement No. 5]
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IN WITNESS WHEREOF, the parties hereto have consented to this instrument.
U.S. BANK NATIONAL ASSOCIATION, not
in its individual capacity but
solely as Indenture Trustee
By
---------------------------------------
Title:
------------------------------------
ICON/XXXXXXXX FACILITY LLC, as Owner
Participant
By: ICON Cash Flow Partners L.P. Seven
ICON Cash Flow Partners L.P. Six
ICON Cash Flow Partners L.P. Series C
ICON Income Fund Eight A L.P.,
its sole members
By ICON Capital Corp, each such entity's
general partner
By
---------------------------------------
Title:
------------------------------------
PRINCIPAL LIFE INSURANCE COMPANY,
as Loan Participant
By: Principal Global Investors, LLC
a Delaware limited liability company,
its authorized signatory
By /s/ Xxx X. Xxxxx
---------------------------------------
Title: XXX X. XXXXX, COUNSEL
------------------------------------
By /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------
Title: XXXXXXX X. XXXXXXXXX, COUNSEL
------------------------------------
[Signature Page to Lease Supplement No. 5]
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CONSENT AND ACKNOWLEDGEMENT
Reference is hereby made to (i) that certain Facilities Agreement dated as
of September 1, 1979 by and among Portland General Electric Company, an Oregon
corporation ("Lessee"), Power Resources Cooperative (then known as Pacific
Northwest Generating Company), an Oregon cooperative corporation, Idaho Power
Company, a Maine corporation ("IPC"), The Boardman Power Company, an Oregon
corporation, and First National Bank of Oregon, a national banking association,
as owner trustee (the "1979 Facilities Agreement"), as amended by a First
Amendment to Facilities Agreement dated as of January 26, 1993 (the "Facilities
Amendment") by and among the same parties (or their successors and assigns) (the
1979 Facilities Agreement as so amended, the "Facilities Agreement"), and (ii)
an Assumption and Option Agreement dated as of September 1, 1979 by and among
Lessee, Western America Financial, Inc., a Delaware corporation, as the owner
participant, certain financial institutions listed on Schedule I thereto, as the
loan participants, First National Bank of Oregon, a national banking
association, as owner trustee, United States National Bank of Oregon, a national
banking association, as indenture trustee and IPC (the "1979 Assumption
Agreement"), as amended by a First Amendment to Assumption and Option Agreement
dated as of January 26, 1993 (the "Assumption Amendment") by and among the same
parties (or their successors and assigns) (the 1979 Assumption Agreement as so
amended, the "Assumption Agreement"; and together with the Facilities Agreement
the "Agreements"). Capitalized terms used but not defined herein shall have the
meanings as set forth in the Agreements.
WHEREAS, Lessee has exercised its option to extend the Lease for an
additional five years (the "Lease Renewal") and Owner Trustee and ICON/Xxxxxxxx
Facility LLC, the current owner participant ("Owner Participant"), have elected
to finance the proceeds of such Lease Renewal with Loan Participant by selling
to Principal Life Insurance Company ("Loan Participant") new secured notes (the
"2004 Secured Notes") pursuant to a new Note Purchase Agreement dated April 30,
2004 (the "2004 Note Purchase Agreement") among Owner Participant, Loan
Participant, Xxxxx Fargo Bank Northwest, N.A., successor to First Interstate
Bank of Oregon, N.A. (f/k/a First National Bank of Oregon) ("Owner Trustee") and
U.S. Bank National Association, Indenture Trustee, which will be used to repay
the Secured Notes issued pursuant to the Note Agreement; and
WHEREAS, in order to secure the 2004 Secured Notes, Owner Trustee and
Indenture Trustee have executed and delivered an Amended and Restated Indenture
and First Deed of Trust dated as of April 30, 2004 (the "2004 Indenture")
pursuant to which Owner Trustee has assigned and mortgaged its interests under
the Facilities Agreement in the same manner as was done under and in accordance
with the Indenture (the "2004 Assignment");
NOW, THEREFORE, based on the foregoing and the mutual agreements set forth
below:
1. Portland General Electric Company, Idaho Power Company, an Idaho
corporation (successor to Idaho Power Company, a Maine corporation), and Power
Resources Cooperative (formerly known as Pacific Northwest Generating Company)
("Grantors") hereby (i) consent to the 2004 Assignment, (ii) waive any provision
of Section 10(F) of the Facilities Agreement to the extent that any such
provision would prohibit the Assignment, (iii) agree that the Agreements
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may be amended so as to give effect to the 2004 Assignment mutatis mutandis, and
(iv) agree that the Agreements are otherwise ratified, approved and confirmed.
2. Indenture Trustee and Loan Participant hereby agree that (i) they
benefit from the rights and are bound by the obligations of the "Indenture
Trustee" and the "Loan Participant" under the Agreements and (ii) the Agreements
and rights, interests and estate of the Grantors as set forth in the Agreements
shall remain in full force and effect at the date hereof and following any
amendments thereof, except as waived hereby.
This instrument may be executed in one or more counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same instrument.
[SIGNATURES ON FOLLOWING PAGE]
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PORTLAND GENERAL ELECTRIC IDAHO POWER COMPANY
COMPANY
By: /s/ Xxxxx X. Xxxx By:
----------------------------- -----------------------------
Its: EVP & CFO Its:
---------------------------- -----------------------------
POWER RESOURCES COOPERATIVE U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee
By: By:
----------------------------- -----------------------------
Its: Its:
---------------------------- -----------------------------
PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Global Investors, LLC
a Delaware limited liability company,
its authorized signatory
By:
-----------------------------
Its:
-----------------------------
By:
-----------------------------
Its:
-----------------------------
[Signature Page to Consent and Acknowledgment]
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PORTLAND GENERAL ELECTRIC IDAHO POWER COMPANY
COMPANY
By: By: /s/
----------------------------- -----------------------------
Its: Its: VP Power Supply
---------------------------- -----------------------------
POWER RESOURCES COOPERATIVE U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee
By: By:
----------------------------- -----------------------------
Its: Its:
---------------------------- -----------------------------
PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Global Investors, LLC
a Delaware limited liability company,
its authorized signatory
By:
-----------------------------
Its:
-----------------------------
By:
-----------------------------
Its:
-----------------------------
[Signature Page to Consent and Acknowledgment]
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PORTLAND GENERAL ELECTRIC IDAHO POWER COMPANY
COMPANY
By: By:
----------------------------- -----------------------------
Its: Its:
---------------------------- -----------------------------
POWER RESOURCES COOPERATIVE U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee
By: /s/ By:
----------------------------- -----------------------------
Its: Exec VP & General Manager Its:
---------------------------- -----------------------------
PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Global Investors, LLC
a Delaware limited liability company,
its authorized signatory
By:
-----------------------------
Its:
-----------------------------
By:
-----------------------------
Its:
-----------------------------
[Signature Page to Consent and Acknowledgment]
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PORTLAND GENERAL ELECTRIC IDAHO POWER COMPANY
COMPANY
By: By:
----------------------------- -----------------------------
Its: Its:
---------------------------- -----------------------------
POWER RESOURCES COOPERATIVE U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee
By: By: Xxxxx X. XxXxxxxx
----------------------------- -----------------------------
Its: Its: Vice President
---------------------------- -----------------------------
PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Global Investors, LLC
a Delaware limited liability company,
its authorized signatory
By:
-----------------------------
Its:
-----------------------------
By:
-----------------------------
Its:
-----------------------------
[Signature Page to Consent and Acknowledgment]
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PORTLAND GENERAL ELECTRIC IDAHO POWER COMPANY
COMPANY
By: By:
----------------------------- -----------------------------
Its: Its:
---------------------------- -----------------------------
POWER RESOURCES COOPERATIVE U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee
By: By:
----------------------------- -----------------------------
Its: Its:
---------------------------- -----------------------------
PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Global Investors, LLC
a Delaware limited liability company,
its authorized signatory
By: Xxx X. Xxxxx
-----------------------------
Its: XXX X. XXXXX, COUNSEL
-----------------------------
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------
Its: XXXXXXX X. XXXXXXXXX, Counsel
-----------------------------
[Signature Page to Consent and Acknowledgment]