Exhibit C(25)
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FIRST SUPPLEMENTAL LOAN AGREEMENT
BETWEEN
CITY OF FORSYTH, MONTANA
AND
PORTLAND GENERAL ELECTRIC COMPANY,
_______________________________
Dated as of May 1, 2003
_______________________________
Relating to $21,000,000
City of Forsyth, Montana
Pollution Control Revenue Refunding Bonds
(Portland General Electric Company Project)
Series 1998B
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Amending and supplementing the Loan Agreement between City of Forsyth,
Montana, and Portland General Electric Company, dated as of May 1, 1998.
TABLE OF CONTENTS
SECTION HEADING PAGE
PARTIES......................................................................1
RECITALS.....................................................................1
ARTICLE I DEFINITIONS..................................................2
Section 101. Definitions Contained in the Original Loan Agreement and
the Indenture...............................................2
Section 102. New Definitions..............................................2
Section 103. Rules of Construction; Certain Terms.........................2
ARTICLE II REPRESENTATIONS AND WARRANTIES...............................3
Section 201. Representations and Warranties of the Issuer.................3
Section 202. Representations and Warranties of the Company................4
ARTICLE III AMENDMENTS TO THE ORIGINAL LOAN AGREEMENT....................6
Section 301. Amendment of Article IV of the Original Loan Agreement.......6
Section 302. Amendment of Article V of the Original Loan Agreement.......11
Section 303. Amendment of Article VI of the Original Loan Agreement......11
Section 304. Amendment of Article VII of the Original Loan Agreement.....12
Section 305. Amendment of Article IX of the Original Loan Agreement......15
ARTICLE IV MISCELLANEOUS...............................................15
Section 401. Execution of Counterparts...................................15
Section 402. Effective Date Applicability of the Agreement...............15
Section 403. Governing Law...............................................15
Section 404. Severability................................................15
SIGNATURES..................................................................16
EXHIBIT A - CONSENT OF TRUSTEE
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FIRST SUPPLEMENTAL LOAN AGREEMENT
THIS FIRST SUPPLEMENTAL LOAN AGREEMENT, dated as of May 1, 2003 (the
"Supplemental Loan Agreement"), supplementing and amending that certain Loan
Agreement, dated as of May 1, 1998 (the "Original Loan Agreement," and,
collectively with the Supplemental Loan Agreement, the "Loan Agreement"), by and
between the CITY OF FORSYTH, MONTANA (the "Issuer"), a duly organized and
existing political subdivision of the State of Montana, and PORTLAND GENERAL
ELECTRIC COMPANY, a corporation duly qualified to conduct business in the State
of Montana (the "Company").
R E C I T A L S:
A. The Issuer has previously issued its $21,000,000 Pollution Control
Revenue Refunding Bonds (Portland General Electric Company Project), Series
1998B (the "Bonds") pursuant to a Trust Indenture, dated as of May 1, 1998 (the
"Original Indenture"), as amended and restated by that certain First
Supplemental Trust Indenture, dated as of the date hereof (the "First
Supplemental Indenture, " and, collectively with the Original Indenture, the
"Indenture"), each between the Issuer and X.X. Xxxxxx Trust Company, National
Association (as successor to Chase Manhattan Bank and Trust Company, National
Association), as trustee (the "Trustee").
B. In connection with the original issuance of the Bonds, the Issuer
and the Company entered into the Original Loan Agreement.
C. The Company desires to pledge its First Mortgage Bonds, Collateral
Series C due 2033 (the "First Mortgage Bonds"), to secure its loan payment
obligations under the Original Loan Agreement and thereby enhance the
marketability of the Bonds.
D. Section 9.04 of the Original Loan Agreement provides that the
Original Loan Agreement may only be amended by written agreement of the Issuer
and the Company and with the written consent of the Trustee in accordance with
the Indenture.
E. This Supplemental Loan Agreement constitutes the written agreement
of the Company and the Issuer to amend the Original Loan Agreement, as required
by Section 9.04 of the Original Loan Agreement.
F. Pursuant to resolution number 2003-17, adopted by the Issuer on
March 24, 2003, the Issuer has approved and authorized the execution of this
Supplemental Loan Agreement.
G. Section 12.05(j) of the Indenture provides that the Issuer and the
Company may amend and supplement the Original Loan Agreement, without the
consent of or notice to the Owners, to provide for a Change of Credit Facility.
H. The pledge and delivery of the First Mortgage Bonds constitutes a
Change of Credit Facility.
I. Section 12.05(k) of the Original Indenture provides that the Issuer
and the Company may modify, alter, amend or supplement the Original Loan
Agreement, without the consent of or notice to the Owners of the Bonds, if the
effective date of such supplement or amendment is a date on which the Bonds
affected are subject to mandatory purchase pursuant to Section 3.02 of the
Original Indenture.
J. The effective date of this Supplemental Loan Agreement is a date on
which all of the Bonds are subject to mandatory purchase pursuant to Section
3.02 of the Original Indenture.
K. The Consent of the Trustee, attached as Exhibit A, required by
Section 9.04 of the Original Loan Agreement has been delivered to the Issuer and
the Company.
L. There has been delivered to the Issuer and the Trustee the opinion
of Bond Counsel required by Section 12.05 of the Indenture.
M. The execution and delivery of this Supplemental Loan Agreement have
been duly authorized by the governing body of the Issuer and all things
necessary to make this Supplemental Loan Agreement a valid and binding agreement
of the Issuer have been done.
In consideration of the foregoing and of the mutual covenants herein
set forth, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 101. Definitions Contained in the Original Loan Agreement and
the Indenture. The words and terms defined in the Original Loan Agreement and
the Indenture shall for all purposes of this Supplemental Loan Agreement have
the meanings specified in such Original Loan Agreement or in the Indenture, as
applicable, when used herein, unless the context clearly requires otherwise.
Section 102. New Definitions. The following words and terms as used in
this Supplemental Loan Agreement shall have the following meanings:
"First Supplemental Indenture" means the First Supplemental Indenture,
dated as of May 1, 2003, between the Issuer and the Trustee, amending and
restating the Original Indenture.
"Original Loan Agreement" means the Loan Agreement, dated as of May 1,
1998, between the Issuer and the Company.
"Supplemental Loan Agreement" means this First Supplemental Loan
Agreement, dated as of May 1, 2003, between the Issuer and the Company.
Section 103. Rules of Construction; Certain Terms. (a) Except where
the context otherwise requires, words importing the singular number shall
include the plural number and
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vice versa, and words importing persons shall include firms, associations,
trusts, corporations or governments or agencies or political subdivisions
thereof.
(b) As used in the Loan Agreement, the term "payment hereunder" shall
include payments, if any, on the First Mortgage Bonds.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 201. Representations and Warranties of the Issuer. The Issuer
represents, warrants and agrees that:
(a) The Issuer is a political subdivision of the State, duly
organized and validly existing under the Constitution and laws of the
State.
(b) The Bonds are currently Outstanding in the aggregate
principal amount of $21,000,000.
(c) Under the Act, the Issuer has the power to enter into the
transactions contemplated by the Loan Agreement and the Indenture and
to carry out its obligations hereunder and thereunder. By proper
action of its governing body, the Issuer has been duly authorized to
execute, deliver and duly perform this Supplemental Loan Agreement and
the First Supplemental Indenture.
(d) The execution and delivery of this Supplemental Loan
Agreement and the First Supplemental Indenture by the Issuer do not,
and consummation of the transactions contemplated hereby and thereby
and fulfillment of the terms hereof and thereof by the Issuer will
not, result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust or
other agreement or instrument to which the Issuer is now a party or by
which it is now bound, or any order, rule or regulation applicable to
the Issuer of any court or of any regulatory body or administrative
agency or other governmental body having jurisdiction over the Issuer
or over any of its properties, or any statute of any jurisdiction
applicable to the Issuer.
(e) No consent, approval, authorization or other order of any
regulatory body or administrative agency or other governmental body is
legally required for the Issuer's execution and delivery of this
Supplemental Loan Agreement or the First Supplemental Indenture.
(f) Except as amended by this Supplemental Loan Agreement, the
Original Loan Agreement has not been previously amended or
supplemented and, as of the date hereof, is still in full force and
effect.
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(g) Except as amended and restated by the First Supplemental
Indenture, the Indenture has not previously been amended or
supplemented and is still in full force and effect.
(h) X.X. Xxxxxx Trust Company, National Association (as successor
to Chase Manhattan Bank and Trust Company, National Association), is
the Trustee under the Indenture.
(i) The Issuer has not assigned or pledged and will not assign or
pledge its interest in the Loan Agreement other than to secure the
Bonds.
(j) To the knowledge of the Issuer, after due inquiry, no
litigation is pending or threatened against the Issuer in any way
affecting any authority for or the validity of the Indenture, the Loan
Agreement or the existence or powers of the Issuer.
(k) The Issuer will not knowingly take or omit to take any action
reasonably within its control the taking or omission of which would
adversely affect the Tax-Exempt status of the Bonds. The Issuer will
file or cause to be filed with the United States Department of
Treasury the information required by Section 149(e) of the Code.
Section 202. Representations and Warranties of the Company. The
Company represents, warrants and agrees that:
(a) It is a corporation duly organized and validly existing under
the laws of the State of Oregon, is not in violation of any provision
of its Articles of Incorporation or its Bylaws, in each case as the
same have been amended, has full corporate power to own its properties
and conduct its business, has not received notice and has no
reasonable grounds to believe that it is in violation of any laws in
any manner material to its obligations under this Supplemental Loan
Agreement, and has the corporate power to enter into, and by proper
corporate action has duly authorized the execution and delivery of,
this Supplemental Loan Agreement and has the power to issue and
deliver the First Mortgage Bonds as contemplated herein.
(b) Neither the execution and delivery of this Supplemental Loan
Agreement, the consummation of the transactions contemplated hereby,
nor the fulfillment of or compliance with the terms and conditions of
this Supplemental Loan Agreement (including, without limitation, the
issuance, delivery and performance of the First Mortgage Bonds)
conflicts with or will result in a breach of any of the terms,
conditions or provisions of any law or judgment to which the Company
or its property or assets are subject or of any corporate restriction
contained in its Articles of Incorporation or its Bylaws, in each case
as the same have been amended, or any agreement or instrument to which
the Company is now a party or by which it is bound, or constitutes,
with or without the giving of notice or lapse of time or both, a
default under any of the foregoing, or results in the creation or
imposition of any lien,
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charge or encumbrance whatsoever upon any of the property or assets of
the Company (other than that the Company Mortgage is a lien on
substantially all of the Company's property and assets, and other than
any lien, charge or encumbrance which may be created in favor of the
Trustee by the Company Mortgage and the Company Supplemental
Indenture) under the terms of any instrument or agreement.
(c) This Supplemental Loan Agreement has been duly and validly
authorized, executed and delivered by the Company and is a legal,
valid and binding obligation of the Company, enforceable in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium, usury or other similar laws
affecting the rights of creditors generally, equitable principles
relating to the availability of remedies and principles of public or
governmental policy limiting the enforceability of the indemnification
and contribution provisions.
(d) No event has occurred and is continuing under the provisions
of either the Original Loan Agreement, or to the knowledge of the
Company, under the provisions of the Original Indenture, which event
now constitutes, or with the lapse of time or the giving of notice, or
both, would constitute an Event of Default under either the Original
Loan Agreement or the Original Indenture.
(e) Other than the orders of the Public Utility Commission of
Oregon and the approval by the Issuer, all of which orders and
approvals will have been received and be in effect prior to the
initial authentication and delivery of the Bonds, no consent,
approval, authorization or order of, or registration with, any court
or governmental or regulatory agency or body is required with respect
to the Company for the execution, delivery and performance by the
Company of this Supplemental Loan Agreement and the Tax Certificate.
(f) The Original Loan Agreement has not been previously amended
or supplemented and as of the date hereof is still in full force and
effect.
(g) The Bonds are currently Outstanding in the aggregate
principal amount of $21,000,000.
(h) This Supplemental Loan Agreement and the First Supplemental
Indenture are being executed and delivered, and the First Mortgage
Bonds are being issued in connection with the remarketing of the Bonds
for a new Term Interest Rate Period that begins on May 1, 2003 and
ends on April 30, 2009.
(i) The Company will cooperate with the Issuer in filing or
causing to be filed with the United States Department of Treasury the
information required by Section 149(e) of the Code.
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ARTICLE III
AMENDMENTS TO THE ORIGINAL LOAN AGREEMENT
Section 301. Amendment of Article IV of the Original Loan Agreement.
(a) Article IV of the Original Loan Agreement is hereby amended by revising
Section 4.01 to read in its entirety as follows:
Section 4.01. Loan Payments. (a) As and for repayment of the loan
made to the Company by the Issuer pursuant to Section 3.03 hereof, the
Company shall pay to the Trustee, for the account of the Issuer, an
amount equal to the aggregate principal amount of and the premium, if
any, on the Bonds from time to time Outstanding and, as interest on
its obligation to pay such amount, an amount equal to interest on the
Bonds, such amounts to be paid in installments due on the dates, in
the amounts and in the manner provided in the Indenture for the
payment of the principal of and premium, if any, and interest on the
Bonds, whether at maturity, upon redemption, acceleration or
otherwise; provided, however, that the obligation of the Company to
make any such payment hereunder shall be reduced by the amount of any
moneys held by the Trustee under the Indenture and available for such
payment.
(b) In the event the Company shall fail to make any payment
required by Section 4.01(a) hereof with respect to the principal of
and premium, if any, and interest on any Bond, the payment so in
default shall continue as an obligation of the Company until the
amount in default shall have been fully paid, and the Company will pay
interest on any overdue amount with respect to principal of such Bond
and, to the extent permitted by law, on any overdue amount with
respect to premium, if any, and interest on such Bond, at the interest
rate borne by such Bond until paid.
(c) The obligation of the Company to make any payment under
Section 4.01(a) hereof shall be deemed to be satisfied and discharged
to the extent of any corresponding payment made by the Company to the
Trustee, for the account of the Issuer, of principal of, or premium,
if any, or interest on the First Mortgage Bonds.
(b) Article IV of the Original Loan Agreement is hereby amended by
revising Section 4.03 to read in its entirety as follows:
Section 4.03. Payments Assigned; Obligation Absolute. (a) It is
understood and agreed that the Loan Payments are pledged and assigned
by the Issuer to the Trustee pursuant to the Indenture, and that all
right, title and interest of the Issuer hereunder (except for amounts
payable to, and the rights of, the Issuer under Section 4.04, Section
4.06(a), Section 5.03, Section 5.06, Section 5.07, Section 5.08 and
Section 7.05 hereof and the Issuer's rights to receive notices,
certificates, requests, requisitions, directions and other
communications hereunder), are pledged and assigned to the Trustee
pursuant to the Indenture. The Company assents to such pledge and
assignment and agrees that the obligation of the Company to make the
Loan Payments and payments to the Trustee under Section 4.02 hereof
shall be absolute, irrevocable and unconditional
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and shall not be subject to cancellation, termination or abatement, or
to any defense other than payment (including payment on First Mortgage
Bonds in accordance with Sections 4.01(a) and 4.09 hereof), or to any
right of setoff, counterclaim or recoupment arising out of any breach
under this Agreement or the Indenture or otherwise by the Company, the
Trustee, the Remarketing Agent, or any other party, and, further, that
the Loan Payments and the other payments due hereunder shall continue
to be payable at the times and in the amounts herein and therein
specified whether or not the Project, or any portion thereof, shall
have been destroyed by fire or other casualty, or title thereto, or
the use thereof, shall have been taken by the exercise of the power of
eminent domain, and that there shall be no abatement of or diminution
in any such payments by reason thereof, whether or not the Projects
shall be used or useful and whether or not any applicable laws,
regulations or standards shall prevent or prohibit the use of the
Project or for any other reason. The Project shall not constitute any
part of the Trust Estate or any part of the security for the Bonds
except to the extent that First Mortgage Bonds then constitute
security for the Bonds and the Project are part of the "trust estate"
under the Company Mortgage.
(b) It is understood and agreed (i) that payments on First
Mortgage Bonds will be made in accordance with the Company Mortgage
and Section 4.09 hereof, (ii) that such payments are pledged and
assigned by the Issuer to the Trustee pursuant to the Indenture and
(iii) that all right, title and interest of the Issuer to the First
Mortgage Bonds are pledged and assigned to the Trustee pursuant to the
Indenture. The Company assents to such pledge and assignment.
(c) Article IV of the Original Loan Agreement is hereby amended by
revising Section 4.04 to read in its entirety as follows:
Section 4.04. Payment of Expenses. The Company shall pay all of
the Administration Expenses of the Issuer, the Trustee, the Paying
Agent, the Registrar, Moody's and S&P under the Indenture and of any
Remarketing Agent under a Remarketing Agreement directly to each such
entity. The Company shall also pay all of the expenses of the Prior
Trustee in connection with the Refunding and all other reasonable fees
and expenses incurred in connection with the issuance of the Bonds,
including, but not limited to, all costs associated with any
discontinuance of the book-entry system described in Section 2.10 of
the Indenture.
Prior to any deposit with the Trustee made pursuant to Section
5.15 or Article VIII of the Indenture, the Company shall provide for,
in a manner satisfactory to the Trustee, the payment of the
Administration Expenses of the Trustee, the Paying Agent, and the
Registrar.
(d) Article IV of the Original Loan Agreement is hereby amended by
revising Section 4.05 to read in its entirety as follows:
Section 4.05. Indemnification. The Company releases the Trustee
and the Registrar and their respective officers, agents, servants and
employees from, agrees that
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the Trustee and the Registrar and their respective officers, agents,
servants and employees shall not be liable for, and agrees to
indemnify and hold free and harmless the Trustee and the Registrar and
their respective officers, agents, servants and employees from and
against, any liability for any loss or damage to property or any
injury to or death of any person that may be occasioned by any cause
whatsoever pertaining to the Project, except in any case as a result
of the gross negligence or willful misconduct of the Trustee and the
Registrar and their respective officers, agents, servants and
employees.
The Company will indemnify and hold free and harmless the Trustee
and the Registrar and their respective officers, agents, servants and
employees from and against any loss, claim, damage, tax, penalty,
liability, disbursement, litigation or other expenses, attorneys' fees
and expenses or court costs arising out of, or in any way relating to,
the execution or performance of this Agreement or the Tax Certificate;
the issuance or sale of the Bonds or the First Mortgage Bonds; the
Refunding; the acceptance or administration of the trust under the
Indenture; compliance or attempted compliance with or reliance upon
any instruction or other direction upon which the Trustee or the
Registrar, as the case may be, is authorized to rely pursuant to the
terms of the Indenture, this Agreement or the Company Mortgage; or any
other cause whatsoever pertaining to this Agreement, the Tax
Certificate, the Company Mortgage, the First Mortgage Bonds or the
Indenture, except in any case as a result of the gross negligence or
willful misconduct of the Trustee and the Registrar or their
respective officers, agents, servants and employees.
The obligations of the Company under this Section 4.05 shall
survive the termination of this Agreement and the Indenture.
(e) Article IV of the Original Loan Agreement is hereby amended by
revising Section 4.07 to read in its entirety as follows:
Section 4.07. Credit Facility. (a) The Company may at any time
provide for a Change of Credit Facility, provided that the Company
delivers to the Trustee and the Remarketing Agent:
(1) not less than five Business Days prior to the date on
which the Trustee must notify the Owners of a Change of Credit
Facility pursuant to clause (i) or clause (ii), as applicable, of
Section 2.11(a) of the Indenture, a notice which (A) states the
effective date of the Change of Credit Facility, (B) describes
the terms of the Change of Credit Facility, and (C) directs the
Trustee to give such notice to the Owners; provided, however,
that if notice to the Owners is not required pursuant to Section
2.11(a)(iii) of the Indenture, prior to the effective date of
such Change of Credit Facility, the Company shall deliver to the
Trustee a notice of the Change of Credit Facility; and
(2) on or prior to the effective date of any such Change of
Credit Facility, the following:
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(A) an opinion of Bond Counsel stating, in effect, that such
Change of Credit Facility (i) is authorized under this Agreement,
and (ii) will not cause the interest on the Bonds to become
includible in the gross income of the Owners thereof for federal
income tax purposes;
(B) a certificate of an Authorized Company Representative as
to whether the Bonds are then rated by either Moody's or S&P, or
both; and
(C) written evidence from Moody's, if the Bonds are then
rated by Moody's, and from S&P, if the Bonds are then rated by
S&P, in each case to the effect that such rating agency has
reviewed the proposed Change of Credit Facility and that such
Change of Credit Facility will not, by itself, result in a
reduction, suspension or withdrawal of its rating or ratings of
the Bonds;
and, provided, further, that if the Change of Credit Facility consists
of the replacement of First Mortgage Bonds with a separate Credit
Facility, then (x) such Credit Facility shall consist of a bond
insurance policy or policies, (y) following such Change of Credit
Facility, the Bonds will be rated AAA (or its equivalent) by either
Moody's or S&P and (z) the Company shall not be required to deliver to
the Trustee and the Remarketing Agent the certificate of an Authorized
Company Representative or the written evidence from the rating agency
or rating agencies then rating the Bonds, required by clause (2)(B)
and clause (2)(C), respectively, above.
(b) In lieu of satisfying the requirements of subsection (a)
above, the Company may provide for a Change of Credit Facility at any
time that the Bonds are subject to optional redemption pursuant to
Section 4.02(b) of the Indenture, provided that the Company delivers
to the Trustee and the Remarketing Agent not less than 30 days before
the effective date of the Change of Credit Facility:
(1) a notice which (A) states the effective date of the
Change of Credit Facility, (B) describes the terms of the Change
of Credit Facility, (C) directs the Trustee to give notice
pursuant to Section 2.11(b) of the Indenture that the Bonds are
subject to mandatory purchase, in whole, on or before the
effective date of the Change of Credit Facility in accordance
with Section 3.02(b)(ii) of the Indenture, and (D) directs the
Trustee to take any other action as shall be necessary for the
Trustee to take to effect the Change of the Credit Facility; and
(2) on or before the effective date of the Change of Credit
Facility, the Company shall furnish to the Trustee an opinion of
Bond Counsel satisfying the requirement of clause (2) of
subsection (a) above.
(c) The Company may provide for one or more extensions of a
Credit Facility for any period commencing after its then-current
expiration date without complying with the foregoing provisions of
this Section.
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(d) The Company may rescind its election to make a Change of
Credit Facility at any time prior to the effective date thereof.
(f) Article IV of the Original Loan Agreement is hereby amended by
adding Section 4.09 to read in its entirety as follows:
Section 4.09. Issuance, Delivery and Surrender of First Mortgage
Bonds. (a) The obligation of the Company pursuant to Section 4.01
hereof to repay the loan made to it by the Issuer pursuant to Section
3.03 hereof may be secured by First Mortgage Bonds.
(b) Such First Mortgage Bonds shall (i) mature on the same date
and in the same principal amount as the Bonds, (ii) bear interest at
the same rate and be payable at the same times as the Bonds, (iii)
contain redemption provisions correlative to the provisions of Section
4.02 and Section 4.03 of the Indenture, and (iv) subject to the
provisions of Section 4.09(c) hereof, require payments of the
principal thereof, or premium, if any, or interest thereon to be made
to the Trustee for the account of the Issuer and the benefit of the
Owners. Such First Mortgage Bonds shall be held, voted, transferred
and surrendered by the Trustee subject to and in accordance with the
respective provisions of this Agreement and the Indenture. Any moneys
received by the Trustee with respect to First Mortgage Bonds shall be
used to make the corresponding payment then due of principal of and
premium, if any, and interest on the Bonds in accordance with the
terms of the Bonds and the Indenture. Any proceeds of First Mortgage
Bonds in excess of the amounts necessary to pay in full the principal
of and premium, if any, and interest on the Bonds shall be remitted to
the Company.
(c) The Company shall receive a credit against its obligations to
make any payment of principal of, or premium, if any, or interest on
First Mortgage Bonds described in Section 4.09(b) hereof (whether at
maturity, upon redemption or otherwise), and such obligations shall be
fully or partially, as the case may be, satisfied and discharged, in
an amount equal to the amount, if any, paid by the Company under
Section 4.01 hereof, or otherwise satisfied or discharged, in respect
of the principal of and premium, if any, and interest on the Bonds.
The obligations of the Company to make such payment of principal of,
or premium, if any, or interest on the First Mortgage Bonds shall be
deemed to have been reduced by the amount of such credit.
(d) The Issuer agrees that, if the Company's obligation under
Section 4.01 hereof to repay the loan made to it pursuant to Section
3.03 hereof is secured by First Mortgage Bonds, then (i) such First
Mortgage Bonds shall be issued and delivered to, registered in the
name of and held by the Trustee (or, subject to Section 5.11 of the
Indenture, the Trustee's nominee) for the benefit of the Owners from
time to time of the Bonds, and the Company shall make all payments of
principal of, or premium, if any, or interest on the First Mortgage
Bonds to the Trustee as the registered owner thereof; and (ii) the
Company may take such actions as it shall deem to be desirable to
effect compliance with such restrictions on transfer, including the
placing of an appropriate legend on each First Mortgage Bond and the
issuance of stop-transfer instructions to the Company Mortgage Trustee
or any other transfer agent under the Company Mortgage.
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Section 302. Amendment of Article V of the Original Loan Agreement.
(a) Article V of the Original Loan Agreement is hereby amended by revising
Section 5.01 to read in its entirety as follows:
Section 5.01. Maintenance of Existence; Conditions Under Which
Exceptions Permitted. The Company shall maintain in good standing its
corporate existence as a corporation organized under the laws of one
of the states of the United States or the District of Columbia and
will remain duly qualified to do business in the State for so long as
the Company has an ownership interest in the Project, will not
dissolve or otherwise dispose of all or substantially all of its
assets and will not consolidate with or merge into another
corporation; provided, however, that the Company may, without
violating the foregoing, undertake from time to time any one or more
of the following, if, prior to the effective date thereof, there shall
have been delivered to the Trustee an opinion of Bond Counsel stating
that the contemplated action will not adversely affect the Tax-Exempt
status of the Bonds:
(a) consolidate or merge with another domestic corporation
(i.e., a corporation incorporated and existing under the laws of
one of the states of the United States or of the District of
Columbia), or sell or otherwise transfer to another entity all or
substantially all of its assets as an entirety, provided the
resulting, surviving or transferee entity, as the case may be,
shall be (i) the Company or (ii) an entity qualified to do
business in the State as a foreign corporation or incorporated
and existing under the laws of the State, which, as a result of
the transaction, shall have assumed (either by operation of law
or in writing) all of the obligations of the Company hereunder
and under any First Mortgage Bonds then pledged to secure payment
of the Company's obligation hereunder; or
(b) convey all or substantially all of its assets to (i) a
governmental entity purchasing such assets or (ii) one or more
wholly-owned subsidiaries of the Company so long as, in either
case, the Company shall remain in existence and primarily liable
on all of its obligations hereunder and under any First Mortgage
Bonds then pledged to secure payment of the Company's obligations
hereunder.
(b) Article V of the Original Loan Agreement is hereby amended by
revising Section 5.07(b) to read in its entirety as follows:
(b) The Company shall cause the Project to be maintained in
good repair and shall cause the Project to be insured in
accordance with standard industry practice and shall pay all
costs thereof. All proceeds of such insurance shall be for the
account of the Company. Compliance by the Company with the
Company Mortgage shall be deemed sufficient compliance with this
Section.
Section 303. Amendment of Article VI of the Original Loan
Agreement. (a) Article VI of the Original Loan Agreement is hereby
amended by revising Section 6.01 to read in its entirety as follows:
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Section 6.01. Conditions. The Company's interest in this
Agreement may be assigned in whole or in part by the Company: (a) to
another entity, subject, however, to the conditions that such
assignment shall not relieve (other than as described in Section
5.01(a)(ii) hereof) the Company from primary liability for its
obligations to make the Loan Payments or to make payments to the
Trustee under Section 4.02 hereof or for any other of its obligations
hereunder or to pay any First Mortgage Bonds, or (b) to an Affiliate
in connection with the conveyance of the Plant to such Affiliate,
subject, however, to the conditions that (i) such Affiliate meets the
requirements of Section 5.01(a)(ii) hereof (in which case the Company
shall be relieved of all obligations hereunder); (ii) such conveyance
is approved by any public utility commissions or similar entities that
are required by law to approve such conveyance; and (iii) the Company
shall have delivered to the Trustee an opinion of counsel to the
Company that such assignment complies with the provisions of this
Section 6.01.
Anything herein to the contrary notwithstanding, the Company
shall not make any assignment as provided in the preceding paragraph
unless it shall have furnished to the Trustee an opinion of Bond
Counsel to the effect that the proposed assignment will not impair the
validity of the Bonds under the Act or adversely affect the Tax-Exempt
status of the Bonds.
Section 304. Amendment of Article VII of the Original Loan Agreement.
(a) Article VII of the Original Loan Agreement is hereby amended by
revising Section 7.01 to read in its entirety as follows:
Section 7.01. Events of Default. Each of the following events
shall constitute and is referred to in this Agreement as an "Event of
Default":
(a) a failure by the Company to make when due (i) any Loan
Payment and any payment on any First Mortgage Bonds, (ii) any
other payment required under Section 4.01 or (iii) any payment
required under Section 4.02 hereof, which failure shall have
resulted in an "Event of Default" under Section 9.01(a), Section
9.01(b) or Section 9.01(c) of the Indenture;
(b) a failure by the Company to pay when due any amount
required to be paid under this Agreement or to observe and
perform any covenant, condition or agreement on its part to be
observed or performed under this Agreement (other than a failure
described in Section 7.01 (a) above), which failure shall
continue for a period of 60 days (or such longer period as the
Issuer and the Trustee may agree to in writing) after written
notice, specifying such failure and requesting that it be
remedied, shall have been given to the Company by the Trustee or
to the Company and the Trustee by the Issuer; provided, however,
that if such failure is other than for the payment of money and
is of such nature that it cannot be corrected within the
applicable period, such failure shall not constitute an "Event of
Default" so long as the Company institutes corrective action
within the applicable period and such action is being diligently
pursued; or
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(c) the dissolution or liquidation of the Company; or the
filing by the Company of a voluntary petition in bankruptcy; or
failure by the Company promptly to lift or bond any execution,
garnishment or attachment of such consequence as will impair its
ability to make any payments under this Agreement and under any
First Mortgage Bonds; or the filing of a petition or answer
proposing the entry of an order for relief by a court of
competent jurisdiction against the Company under Title 11 of the
United States Code, as the same may from time to time be
hereafter amended, or proposing the reorganization, arrangement
or debt readjustment of the Company under the provisions of any
bankruptcy act or under any similar act which may be hereafter
enacted and the failure of said petition or answer to be
discharged or denied within ninety (90) days after the filing
thereof or the entry of an order for relief by a court of
competent jurisdiction in any proceeding for its liquidation or
reorganization under the provisions of any bankruptcy act or
under any similar act which may be hereafter enacted; or an
assignment by the Company for the benefit of its creditors; or
the entry by the Company into an agreement of composition with
its creditors (the term "dissolution or liquidation of the
Company, " as used in this subsection (c), shall not be construed
to include the cessation of the corporate existence of the
Company resulting either from a merger or consolidation of the
Company into or with another corporation or a dissolution or
liquidation of the Company following a transfer of all or
substantially all its assets as an entirety, under the conditions
permitting such actions contained in Section 5.01 hereto.
(b) Article VII of the Original Loan Agreement is hereby amended by
revising Section 7.02 to read in its entirety as follows:
Section 7.02. Force Majeure. The provisions of Section 7.01(b)
hereof are subject to the following limitations: if by reason of acts
of God; strikes, lockouts or other industrial disturbances; acts of
public enemies; orders of any kind of the government of the United
States or the State, or any department, agency, political subdivision,
court or official of any of such State or any other state which
asserts regulatory jurisdiction over the Company; orders of any kind
of civil or military authority; insurrections; riots; epidemics;
landslides; lightning; earthquakes; volcanoes; fires; hurricanes;
tornadoes; storms; floods; washouts; droughts; arrests; restraint of
government and people; civil disturbances; explosions; breakage or
accident to machinery; partial or entire failure of utilities; or any
cause or event not reasonably within the control of the Company, the
Company is unable in whole or in part to carry out any one or more of
its agreements or obligations contained herein, with the exception of
its obligations under Section 4.01, Section 4.02, Section 4.04,
Section 4.05, Section 4.06, Section 5.01 and Section 5.06 hereof and
under any First Mortgage Bonds, the Company shall not be deemed in
default by reason of not carrying out said agreement or agreements or
performing said obligation or obligations during the continuance of
such inability. The Company shall make reasonable effort to remedy
with all reasonable dispatch the cause or causes preventing it from
carrying out its agreements, provided 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
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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.
(c) Article VII of the Original Loan Agreement is hereby amended by
revising Section 7.03 to read in its entirety as follows:
Section 703. Remedies. (a) Upon the occurrence and continuance of
any Event of Default described in Section 7.01 (a) or Section 7.01(c)
hereof, and further upon the condition that, in accordance with the
terms of the Indenture, the Bonds shall have been declared to be
immediately due and payable pursuant to any provision of the
Indenture, the Loan Payments shall without further action, become and
be immediately due and payable.
(b) Any waiver of any "Event of Default" under the Indenture and
a rescission and annulment of its consequences shall constitute a
waiver of the corresponding Event or Events of Default under this
Agreement and a rescission and annulment of the consequences thereof.
(c) Upon the occurrence and continuance of any Event of Default,
the Issuer may (i) take any action at law or in equity to collect any
payments then due and thereafter to become due hereunder or under the
First Mortgage Bonds or to seek injunctive relief or specific
performance of any obligation, agreement or covenant of the Company
hereunder and (ii) pursue any remedy available under the Company
Mortgage.
(d) Any amounts collected from the Company pursuant to this
Section 7.03 shall be applied in accordance with the Indenture. No
action taken pursuant to this Section 7.03 shall relieve the Company
from the Company's obligations pursuant to Section 4.01 or Section
4.02 hereof.
(e) Upon the occurrence and continuance of any Event of Default
under Section 9.01(f) of the Indenture, the Trustee, if it is then the
holder of First Mortgage Bonds, shall, subject to the provisions of
the Indenture, have the powers to exercise the remedies provided in
the Company Mortgage. Any waiver made in accordance with the Indenture
of a "event of default" under the Company Mortgage and a rescission
and annulment of its consequences shall constitute a waiver of the
corresponding event under this Agreement and a rescission and
annulment of the consequences thereof.
(d) Article VII of the Original Loan Agreement is hereby amended by
revising Section 7.05 to read in its entirety as follows:
Section 7.05. Reimbursement of Attorneys' Fees. If the Company
shall default under any of the provisions hereof and the Issuer or the
Trustee shall employ attorneys or incur other reasonable and proper
expenses for the collection of payments due hereunder or on the First
Mortgage Bonds or for the enforcement of performance or observance of
any obligation or agreement on the part of the Company contained
herein or in the First Mortgage Bonds or the Company Mortgage, the
Company will on demand therefore
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reimburse the Issuer or the Trustee, as the case may be, for the
reasonable and proper fees of such attorneys and such other reasonable
and proper expenses so incurred.
Section 305. Amendment of Article IX of the Original Loan Agreement.
(a) Article IX of the Original Loan Agreement is hereby amended by adding
Section 9.08 to read in its entirety as follows:
Section 9.08. References to First Mortgage Bonds and the Company
Mortgage. At any time when the Company's obligation under Section 4.01
hereof to repay the loan made to it pursuant to Section 3.03 hereof is
not secured by First Mortgage Bonds, references to the First Mortgage
Bonds or the Company Mortgage shall be ineffective.
ARTICLE IV
MISCELLANEOUS
Section 401. Execution of Counterparts. This Supplemental Loan
Agreement may be simultaneously executed in several counterparts, each of
which shall be an original and all of which shall constitute but one and
the same instrument.
Section 402. Effective Date Applicability of the Agreement. The
provisions of this Supplemental Loan Agreement shall become effective
immediately upon the execution and delivery hereof. Except as amended and
supplemented by this Supplemental Loan Agreement, all of the provisions of
the Original Loan Agreement shall remain in full force and effect.
Section 403. Governing Law. The laws of the State shall govern the
construction and enforcement of this Supplemental Loan Agreement.
Section 404. Severability. In the event any provision of this
Supplemental Loan Agreement shall be held invalid or unenforceable by any
court of competent jurisdiction, such holding shall not invalidate or
render unenforceable any other provision hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Loan Agreement to be duly executed as of the day and year first
above written.
CITY OF FORSYTH, MONTANA
By: /s/ [illegible]
---------------------------------------
Mayor
ATTEST AND COUNTERSIGN:
By: /s/ [illegible]
----------------------------
City Clerk-Treasurer
[SEAL]
PORTLAND GENERAL ELECTRIC COMPANY
By: /s/ [illegible]
---------------------------------------
Assistant Treasurer
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EXHIBIT A
CONSENT OF TRUSTEE
Responsive to Section 9.04 of the Loan Agreement, dated as of May 1,
1998 (the "Original Loan Agreement"), between the City of Forsyth, Montana (the
"City"), and Portland General Electric Company, X.X. Xxxxxx Trust Company,
National Association (as successor to Chase Manhattan Bank and Trust Company,
National Association), as trustee (the "Trustee"), under that certain Trust
Indenture, dated May 1, 1998, between the City and the Trustee, hereby consents
to the execution and delivery of the attached First Supplemental Loan Agreement
and the resultant amendments to the Original Loan Agreement.
X.X. XXXXXX TRUST COMPANY, NATIONAL
ASSOCIATION
By: /s/ [illegible]
-------------------------------------
Vice President
X-0
Xxxxxxx 0000X- Supplemental Loan Agreement