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EXHIBIT 1(b)
PORTLAND GENERAL ELECTRIC COMPANY
SECURITIES
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
April 30, 1999
Portland General Electric Company, an Oregon corporation (the
"Company"), proposes to issue and sell from time to time certain of its
securities, including its secured first mortgage bonds, which can include
medium term notes (collectively, "Mortgage Bonds") and its unsecured debt
securities ("Notes") registered under the Securities Act of 1933, as amended
(the "Securities Act"), as set forth in Section 3. The Mortgage Bonds are to be
issued under an indenture of mortgage and deed of trust, dated as of July 1,
1945, as supplemented and amended (the "Bond Indenture"), between the Company
and The Marine Midland Trust Company of New York (now Marine Midland Bank), as
Trustee (the "Bond Trustee"). The Notes are to be issued under an indenture,
dated as of _____________, 1999, (the "Notes Indenture"), between the Company
and ________________, as Trustee (the "Notes Trustee"). The Mortgage Bonds and
the Notes are herein collectively referred to as "Debt Securities."
From time to time, the Company may enter into one or more underwriting
agreements that provide for the sale of certain of the Mortgage Bonds or Notes
to the underwriter or several underwriters named therein (the "Underwriters").
The standard provisions set forth herein may be incorporated by reference in
any such underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions hereof incorporated therein by reference,
is herein referred to as this "Agreement."
1. Sale and Purchase of the Securities. On the basis of the
representations, warranties and agreements herein contained, the Company
proposes to issue and sell (i) the Mortgage Bonds or (ii) Notes, in each case
in one or more series, which series may vary as to their terms (including, but
not limited to, interest rate, maturity, any redemption provisions and any
sinking fund requirements), all of such terms for a particular series being
determined at the time of sale. All or a portion of particular series of the
Debt Securities will be purchased by the Underwriters for resale upon terms of
offering determined at the time of sale. The securities so to be purchased in
any such offering are hereinafter referred to as the "Purchased Securities,"
and any firm or firms acting as representatives of such Underwriters are
hereinafter referred to as the "Representatives." If with respect to the
Purchased Securities such Representatives are acting on behalf of the
Underwriters, references herein to the Underwriters (or a majority in interest
thereof) or the Representatives in the alternative shall be deemed to refer
only to the Representatives. The term "Underwriters' Securities" means Debt
Securities which are Purchased Securities other than Contract Securities. The
term
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"Contract Securities" means Debt Securities which are Purchased Securities, if
any, to be purchased pursuant to delayed delivery contracts referred to below.
If this Agreement provides for sales of Debt Securities pursuant to
delayed delivery contracts, the Company hereby authorizes the Underwriters to
solicit offers to purchase Contract Securities on the terms and subject to the
conditions set forth in the Prospectus (as hereinafter defined) pursuant to
delayed delivery contracts substantially in the form of Schedule I attached
hereto (the "Delayed Delivery Contracts") but with such changes therein as the
Company may authorize or approve. Delayed Delivery Contracts are to be with
institutional investors approved by the Company and of the types set forth in
the Prospectus. On the Closing Date (as hereinafter defined), the Company will
pay the Underwriters in immediately available funds the fee set forth in the
Underwriting Agreement in respect of the principal amount of Contract
Securities. The Underwriters will not have any responsibility in respect of the
validity or the performance of any Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the Contract Securities shall be deducted from the
Debt Securities to be purchased by the several Underwriters and the aggregate
principal amount of Debt Securities to be purchased by each Underwriter shall
be reduced pro rata in proportion to the principal amount of Debt Securities
set forth opposite each Underwriter's name in the Underwriting Agreement,
except to the extent that the Representatives, if any, determine that such
reduction shall be otherwise and so advise the Company.
The obligations of the Underwriters under this Agreement are several
and not joint.
2. Payment and Delivery. Delivery by the Company of the Purchased
Securities or, if this Agreement provides for sales of Debt Securities pursuant
to delayed delivery contracts, the Underwriters' Securities, shall take place,
against payment by the Underwriters therefor in immediately available funds, at
the office, on the date or dates and at the time or times specified in this
Agreement, each of which date and time may be postponed for not more than ten
business days by agreement between a majority in interest of the Underwriters
or the Representatives and the Company (each such date and time of delivery and
payment for the Purchased Securities or, if this Agreement provides for sales
of Debt Securities pursuant to delayed delivery contracts, the Underwriters'
Securities, is hereinafter referred to as the "Closing Date").
The Purchased Securities or, if this Agreement provides for sales of
Debt Securities pursuant to delayed delivery contracts, the Underwriters'
Securities, shall be registered in such names and shall be in such
denominations as the Underwriters or Representatives shall request at least one
full business day prior to the Closing Date and, if requested, shall be made
available to the Underwriters or Representatives for checking and packaging at
least one full business day prior to the Closing Date.
3. Registration Statement and Prospectus; Public Offering. The Company
has filed with the Securities and Exchange Commission (the "Commission"),
pursuant to the Securities Act and the rules and regulations adopted by the
Commission thereunder (the "Rules"), a registration statement or statements on
Form S-3, including a prospectus, relating to the Mortgage Bonds and
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the Notes, and such registration statement has or such registration statements
have become effective. Such registration statement or statements referred to in
the first paragraph of the Underwriting Agreement, including financial
statements, exhibits and Incorporated Documents (as hereinafter defined), as
amended to the date of this Agreement, is or are hereinafter referred to as the
"Registration Statement," and the prospectus or prospectuses included in the
Registration Statement or deemed, pursuant to Rule 429 under the Securities
Act, to relate to the Registration Statement, as supplemented by a prospectus
supplement (including any preliminary prospectus supplement) relating to any
Purchased Securities filed pursuant to Rule 424 under the Securities Act, is or
are hereinafter referred to as the "Prospectus." Any reference herein to the
Registration Statement or Prospectus shall be deemed to include all documents
incorporated, or deemed to be incorporated, therein by reference pursuant to
the requirements of Item 12 of Form S-3 under the Securities Act (the
"Incorporated Documents"). For purposes of this Agreement, all references to
the Registration Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system (XXXXX), which XXXXX copy is substantially
identical to the other copies of such material, except to the extent permitted
by Regulation S-T.
The Company understands that the Underwriters propose to make a public
offering of their respective portions of the Purchased Securities, as set forth
in and pursuant to the Prospectus relating thereto.
4. Representations and Warranties. The Company represents and warrants
to each Underwriter that:
(a) The Company has reasonable grounds to believe that it
meets the requirements for the use of Form S-3 under the Securities
Act.
(b) The Registration Statement, at the time it became
effective, and the prospectus contained therein, complied, and on the
date of the Underwriting Agreement and the Closing Date and when any
post-effective amendment to the Registration Statement becomes
effective or any supplement to such prospectus is filed with the
Commission, the Registration Statement, the Prospectus and any such
amendment or supplement, respectively, will comply, in all material
respects with the requirements of the Securities Act and the Rules;
the Incorporated Documents complied and will comply in all material
respects with the requirements of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and the rules and regulations adopted
by the Commission thereunder; each of the Bond Indenture and the Notes
Indenture complied and will comply in all material respects with the
requirements of the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"); and each part of the Registration Statement
and any amendment thereto, at the time it became effective, and the
Prospectus and any amendment or supplement thereto, at the time it was
filed with the Commission pursuant to Rule 424 under the Securities
Act, did not and will not contain an untrue statement of a material
fact or omit to a state a material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances
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under which they were made, not misleading, except that this
representation and warranty does not apply to (i) statements or
omissions in the Registration Statement or Prospectus (or in
amendments or supplements thereto) made in reliance upon information
furnished in writing to the Company by any Underwriter or the
Representatives on behalf of any Underwriter expressly for use
therein, or (ii) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification of either
the Bond Trustee or the Notes Trustee, under the Trust Indenture Act
on Form T-1, except statements or omissions in such Statement made in
reliance upon information furnished in writing to either the Bond
Trustee or the Notes Trustee on behalf of the Company for use therein.
(c) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to include any securities owned or to be owned by
such person in the securities registered pursuant to the Registration
Statement.
(d) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of the Company,
threatened by the Commission.
(e) Neither the Company nor any of its subsidiaries is, or
with the giving of notice or lapse of time or both would be, in
violation of or in default under, its Certificate of Incorporation or
By-Laws or any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them or any of their
respective properties is bound, except for violations and defaults
which individually and in the aggregate are not material to the
Company and its subsidiaries, taken as a whole, or to the holders of
the Purchased Securities; the issue and sale of the Purchased
Securities and the performance by the Company of all of the provisions
of its obligations under the Purchased Securities, the Bond Indenture,
the Notes Indenture and the Underwriting Agreement and the
consummation of the transactions therein contemplated will not
conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other material agreement or instrument to
which the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, nor will any such action result in any violation of the
provisions of the Certificate of Incorporation or the By-Laws of the
Company or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company, its subsidiaries or any of their
respective properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Purchased Securities or the consummation by the Company of the
transactions contemplated by the Underwriting Agreement, the Bond
Indenture or the Notes Indenture, except such consents, approvals,
authorizations, registrations or qualifications as have been obtained
and as may be required under state securities or Blue Sky laws in
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connection with the purchase and distribution of the Purchased
Securities by the Underwriters.
(f) Other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened to which the Company or
any of its subsidiaries is or may be a party or to which any property
of the Company or any of its subsidiaries is or may be the subject
which, if determined adversely to the Company, could individually or
in the aggregate reasonably be expected to have a material adverse
effect on the general affairs, business, prospects, management,
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole, and, to the best
of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others; and
there are no contracts or other documents of a character required to
be filed as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus which are
not filed or described as required.
(g) The Company and each of its material subsidiaries have
valid and sufficient grants, franchises, miscellaneous permits and
easements free from unduly burdensome restrictions, adequate to the
conduct of the respective businesses in the territories in which they
are now conducting such businesses and the ownership of the respective
properties now owned by them.
(h) The Company, with minor and unimportant exceptions, has
good title in fee to all the real property and good and valid title to
all the personal property described or referred to in the granting
clauses of the Bond Indenture as owned by it, other than property
heretofore released from the lien of the Bond Indenture, subject to
the exceptions, reservations, reversions and easements stated in such
granting clauses, except that certain of such properties are subject
to minor irregularities or deficiencies in the record evidence of
title which will not interfere with the proper operation and
development of such properties by the Company; the properties
described or referred to in the granting clauses of the Bond Indenture
as leasehold properties are held under good and valid leases; the
Federal Power Commission (now the Federal Energy Regulatory
Commission) licenses described or referred to in the granting clauses
of the Bond Indenture have been validly issued and, in cases where
originally issued to others than the Company, validly assigned and
transferred to the Company; the electric transmission and distribution
lines of the Company described or referred to in the Bond Indenture
which are located in, on or under public highways, streets and alleys
are so located pursuant to valid rights, franchises or permits held by
the Company, and the Company has good title to such properties,
subject, as to those located in, on or under the streets or alleys of
any municipal corporation of Oregon, to the terms of the Oregon
statute providing that property so located shall be forfeited and
escheated to the municipal corporation upon failure of the Company to
remove such property within one year, or such longer period as may be
granted by the municipal corporation, after expiration of the
franchise which permitted the erection or installation thereof; and
with respect to private property on which the electric transmission
and distribution lines of the Company described
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or referred to in the Bond Indenture are located, the Company in most
cases holds easements granted by the record owners of such lands (such
easements being granted in some instances by the apparent owner
without examination of title).
5. Conditions of the Underwriters' Obligations. The obligations of the
Underwriters hereunder to purchase and pay for the Purchased Securities or, if
this Agreement provides for sales of Debt Securities pursuant to delayed
delivery contracts, the Underwriters' Securities, are subject to the following
conditions:
(a) Within 24 hours after the execution of the Underwriting
Agreement by the Company (or at such later time acceptable to the
Representatives, or if there are none, such firm as may be designated
by a majority in interest of the Underwriters) and on the Closing
Date, the Representatives or such designated firm shall have received
from the independent accountants of the Company who have certified the
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement signed letters
dated the respective dates of delivery, in form and substance
satisfactory to the Representatives or such designated firm and
stating to the effect set forth in Schedules II-A and II-B hereto,
respectively.
(b) No stop order suspending the effectiveness of the
Registration Statement under the Securities Act shall be in effect and
no proceedings for such purpose shall be pending before or threatened
by the Commission and any requests for additional information on the
part of the Commission (to be included in the Registration Statement
or the Prospectus or otherwise) shall have been complied with to the
reasonable satisfaction of the Underwriters or the Representatives.
(c) Subsequent to the execution of this Agreement, there
shall not have been any change in the capital stock or long-term debt
of the Company or any material adverse change in the general affairs,
management, financial position or results of operations of the Company
and its subsidiaries taken as a whole, whether or not arising in the
ordinary course of business, in each case other than as set forth in
or contemplated by the Registration Statement and Prospectus, if in
the reasonable judgment of a majority in interest of the Underwriters
or of the Representatives any such change makes it impracticable or
inadvisable to consummate the sale and delivery of the Purchased
Securities or, if this Agreement provides for sales of Debt Securities
pursuant to delayed delivery contracts, the Underwriters' Securities,
by the Underwriters as contemplated in the Prospectus.
(d) The representations and warranties of the Company
contained herein shall be true and correct on and as of the Closing
Date and the Company shall have performed all covenants and agreements
herein contained to be performed on its part at or prior to the
Closing Date.
(e) The Underwriters or Representatives shall have received
on the Closing Date a certificate, dated the Closing Date, of the
Chief Executive Officer, the President or the
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Treasurer of the Company, which shall certify that (i) no order
suspending the effectiveness of the Registration Statement or the
qualification of the Bond Indenture or the Notes Indenture, as
applicable, has been issued and, to the knowledge of such officer, no
proceedings for such purpose are pending before or threatened by the
Commission, (ii) the representations and warranties of the Company
contained herein are true and correct on and as of the Closing Date,
and (iii) the Company has performed all covenants and agreements
herein contained to be performed on its part at or prior to the
Closing Date.
(f) The Underwriters or the Representatives shall have
received on the Closing Date from Xxxxxx & Xxxxxx L.L.P., counsel to
the Company, an opinion, dated the Closing Date, substantially to the
effect as set forth in Schedule III hereto.
(g) Unless otherwise specified, the Underwriters or the
Representatives shall have received on the Closing Date from Stoel
Rives, LLP, counsel to the Company, an opinion, dated the Closing
Date, substantially to the effect as set forth in Schedule IV hereto.
(h) The Underwriters or the Representatives shall have
received on the Closing Date from Xxxxxxxxx & Xxxxxxxxx, L.L.P.,
counsel for the Underwriters, an opinion, dated the Closing Date, with
respect to the Company, the Bond Indenture or the Notes Indenture, as
applicable, the Purchased Securities or, if this Agreement provides
for sales of Debt Securities pursuant to delayed delivery contracts,
the Underwriters' Securities, the Registration Statement and
Prospectus and this Agreement. The Company shall have furnished to
counsel for the Underwriters such documents as they may reasonably
request for the purpose of enabling them to render such opinions.
(i) Subsequent to the date of the Underwriting Agreement, no
downgrading shall have occurred in the rating accorded the Company's
debt securities or preferred stock by any "nationally recognized
statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Securities Act,
nor shall there have been any public announcement that any such
organization has under surveillance or review its ratings of any debt
securities or preferred stock of the Company (other than an
announcement with positive implication of a possible upgrading, and no
implication of a possible downgrading of such rating).
6. Covenants. The Company covenants and agrees with the several
Underwriters as follows:
(a) To advise the Underwriters or the Representatives
promptly of any amendment or supplement of the Registration Statement
or the Prospectus which is proposed to be filed and not to effect such
amendment or supplement in a form to which the Underwriters or the
Representatives reasonably object.
(b) To furnish to each of the Underwriters or the
Representatives and to the counsel for the Underwriters, one copy of
the Registration Statement filed pursuant to
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XXXXX, including exhibits and Incorporated Documents, relating to the
Debt Securities in the form it became effective and of all amendments
thereto, including exhibits; and to each such firm and counsel, copies
of each preliminary prospectus supplement and Prospectus and any
amendment or supplement thereto relating to the Debt Securities.
(c) As soon as it is advised thereof, to advise the
Underwriters or the Representatives (i) of the initiation or
threatening by the Commission of any proceedings for the issuance of
any order suspending the effectiveness of the Registration Statement
or the qualification of the Bond Indenture or the Notes Indenture or
preventing or suspending the use of any preliminary prospectus
supplement, (ii) of receipt by it or any representative or attorney of
it of any other communication from the Commission relating to the
Company, the Registration Statement or the Prospectus, or (iii)
suspension of qualification of the Purchased Securities for offering
or sale in any jurisdiction. The Company will make every reasonable
effort to prevent the issuance of an order suspending the
effectiveness of the Registration Statement or the qualification of
the Bond Indenture or the Notes Indenture, and if any such order is
issued, to obtain as soon as possible the lifting thereof.
(d) To deliver to the Underwriters or the Representatives,
without charge, as many conformed copies of the Bond Indenture or the
Notes Indenture, the Registration Statement (excluding exhibits but
including the Incorporated Documents), each preliminary prospectus
supplement, the Prospectus and all amendments and supplements to such
documents as the Underwriters or the Representatives may reasonably
request.
(e) During such period as a prospectus is required by law to
be delivered by an Underwriter or dealer, to deliver, without charge,
to Underwriters and dealers, at such office or offices as the
Underwriters or the Representatives may designate, as many copies of
the Prospectus and any amendment or supplement thereto as the
Underwriters or the Representatives may reasonably request.
(f) During the period in which copies of the Prospectus are
to be delivered as provided in paragraph (e) above, if any event
occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading, or if for any reason it shall be necessary
during such same period to file any document which will be deemed an
Incorporated Document in order to comply with the Exchange Act and the
rules and regulations thereunder, forthwith to prepare, submit to the
Underwriters or the Representatives, file with the Commission and
deliver, without charge to the Underwriters either (i) amendments or
supplements to the Prospectus so that the statements in the
Prospectus, as so amended or supplemented, will not be misleading or
(ii) documents which will effect such compliance. Delivery by
Underwriters of any such amendments or supplements to the Prospectus
or documents shall not constitute a waiver of any of the conditions
set forth in Section 5 hereof.
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(g) To make generally available to the Company's security
holders, as soon as practicable, an earnings statement which satisfies
the provisions of Section 11(a) of the Securities Act.
(h) To cooperate with the Underwriters or the Representatives
in qualifying the Purchased Securities for offer and sale under the
securities or "blue sky" laws of such jurisdictions as the
Underwriters or the Representatives may reasonably request; provided
that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified, to take
any action which would subject it to service of process in suits
(other than those arising out of the offering or sale of the Purchased
Securities) in any jurisdiction where it is not now so subject,
qualify in any jurisdiction as a broker-dealer or subject itself to
any taxing authority where it is not now so subject.
(i) Unless otherwise specified, to endeavor to obtain as
promptly as practicable the listing of the Purchased Securities on the
New York Stock Exchange and, if the Purchased Securities are of a
class or series of securities which is already listed on the New York
Stock Exchange or any other stock exchange, to effect the listing of
the Purchased Securities on such stock exchanges prior to the Closing
Date.
(j) During the period of five years from the date hereof, to
supply to the Representatives, if any, and to each other Underwriter
who may so request in writing, copies of such financial statements and
other periodic and special reports as the Company may from time to
time distribute generally to its lenders or to the holders of any
class of its securities registered under Section 12 of the Exchange
Act and to furnish to the Underwriters or the Representatives a copy
of each annual or other report it shall be required to file with the
Commission.
(k) To pay all of its own expenses incurred in connection
with the performance of its obligations under this Agreement, and the
Company will pay, or reimburse if paid by the Underwriters or the
Representatives, whether or not the transactions contemplated hereby
are consummated or this Agreement is terminated, all reasonable costs
and expenses incident to the performance of the obligations of the
Company under this Agreement, including those relating to (i) the
preparation, printing and filing of the Registration Statement and
exhibits thereto, each preliminary prospectus, any preliminary
prospectus supplement, the Prospectus, all amendments and supplements
to the Registration Statement and the Prospectus, the printing of the
Bond Indenture and the Notes Indenture and the printing or typing of
the Underwriting Agreement (including any Agreement Among
Underwriters), (ii) the issuance, preparation and delivery of the
Purchased Securities to the Underwriters, and if applicable, those
entering into delayed delivery contracts with the Company, including
the costs and expenses of any Bond Trustee and Notes Trustee and any
agent thereof, including any fees and disbursements of counsel
therefor, (iii) the registration or qualification of the Purchased
Securities for offer and sale under the securities or "blue sky" laws
of the various jurisdictions referred to in paragraph (h) above,
including the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and the preparation
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and printing or typing of legal investment and preliminary and
supplementary "blue sky" memoranda, (iv) the furnishing to the
Underwriters and the Representatives, if any, of copies of the
Prospectus and all amendments or supplements to the Prospectus, and of
the several documents required by this Section to be so furnished,
including costs of shipping and mailing, (v) the listing of the
Purchased Securities on any securities exchange, (vi) the rating of
the Purchased Securities by rating agencies, and (vii) the furnishing
to the Underwriters and the Representatives, if any, of copies of all
reports and information required by paragraph (j) above, including
costs of shipping and mailing.
(l) During the period beginning on the date of the
Underwriting Agreement and continuing to the date specified in the
Underwriting Agreement, not to offer, sell, contract to sell or
otherwise dispose of any securities of the Company substantially
similar to the Purchased Securities, without the prior written consent
of a majority in interest of the Underwriters or the Representatives.
7. Indemnification.
(a) The Company will indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), or the omission
or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue
statement or omission; provided that (subject to Section 7(d) below)
any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as
incurred (including, subject to Section 7(c) hereof, the fees and
disbursements of counsel chosen by the Underwriters), reasonably
incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such
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alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above; provided, however, that
the indemnity set forth in this Section 7(a) shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of
any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any
Underwriter expressly for use in the Registration Statement (or any
amendment thereto), or any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto). The foregoing indemnity with
respect to any untrue statement or alleged untrue statement contained
in or omission or alleged omission from a preliminary prospectus shall
not inure to the benefit of the Underwriter (or any person controlling
such Underwriter) from whom the person asserting any loss, liability,
claim, damage or expense purchased any of the Purchased Securities
which are the subject thereof if the Company shall sustain the burden
of proving that such person was not sent or given a copy of the
Prospectus (or the Prospectus as amended or supplemented) at or prior
to the written confirmation of the sale of such Purchased Securities
to such person and the untrue statement contained in or omission from
such preliminary prospectus was corrected in the Prospectus (or the
Prospectus as amended or supplemented) and the Company had previously
furnished copies thereof to such Underwriter.
(b) Each Underwriter, severally in proportion to its
respective purchase obligation and not jointly, agrees to indemnify
and hold harmless the Company, directors of the Company, the officers
of the Company who signed the Registration Statement, and each person,
if any, who controls the Company within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, against any and
all loss, liability, claim, damage and expense described in the
indemnity contained in Section 7(a), as incurred, but only with
respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any
amendment thereto), or any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of such Underwriter expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or
the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the
extent it is not materially prejudiced as a result thereof and in any
event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 7(a) above, counsel to the
indemnified parties shall be selected by the Underwriters, and, in the
case of parties indemnified pursuant to Section 7(b) above, counsel to
the indemnified parties shall be selected by the Company, provided
that if it so elects within a reasonable time after receipt of such
notice, an indemnifying party, jointly with any other indemnifying
parties receiving such notice, may assume the defense of such action
with counsel chosen by it and approved by the
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indemnified parties defendant in such action, unless such indemnified
parties reasonably object to such assumption on the ground that there
may be legal defenses available to them which are different from or in
addition to those available to such indemnifying party. If an
indemnifying party assumes the defense of such action, the
indemnifying parties shall not be liable for any fees and expenses of
counsel for the indemnified parties incurred thereafter in connection
with such action. An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent
of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise
or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under
this Section 7 or Section 8 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out of
such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for
reasonable fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature
contemplated by Section 7(a)(ii) effected without its written consent
if (i) such settlement is entered into more than 45 days after receipt
by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered
into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of
such settlement. Notwithstanding the immediately preceding sentence,
if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, an indemnifying party shall not be liable for any
settlement of the nature contemplated by Section 7(a)(ii) effected
without its consent if such indemnifying party (i) reimburses such
indemnified party in accordance with such request to the extent it
considers such request to be reasonable and (ii) provides written
notice to the indemnified party substantiating the unpaid balance as
unreasonable, in each case prior to the date of such settlement.
8. Contribution.
If the indemnification provided for in Section 7 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims,
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damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the
offering of the Purchased Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Purchased
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Purchased Securities pursuant to this Agreement (before deducting expenses but
after deducting the total underwriting commission received by the Underwriters)
received by the Company, and the total underwriting commission received by the
Underwriters, in each case as set forth on the cover of the Prospectus, bear to
the aggregate initial public offering price of the Purchased Securities as set
forth on such cover. The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
8. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 8 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 8, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Purchased Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of any such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this Section
8, each person, if any, who controls an Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as such Underwriter; and each director of the
Company, each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Company. The
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Underwriters' respective obligations to contribute pursuant to this Section 8
are several in proportion to their respective underwriting obligations and not
joint.
9. Termination. This Agreement may be terminated by a majority in
interest of the Underwriters or by the Representatives by notifying the Company
at any time
(a) at or prior to the Closing Date if, in the judgment of
such Underwriters or the Representatives, sale and delivery of the
Purchased Securities or, if this Agreement provides for the sale of
Debt Securities pursuant to delayed delivery contracts, the
Underwriters' Securities, as contemplated in the Prospectus is
rendered impracticable or inadvisable because (i) additional material
governmental restrictions, not in force and effect on the date hereof,
shall have been imposed upon trading in securities generally or
minimum or maximum prices shall have been generally established on the
New York Stock Exchange or on the American Stock Exchange, or trading
in securities generally shall have been suspended or materially
limited on either such Exchange or a general banking moratorium shall
have been established by Federal or New York authorities, (ii) any
event shall have occurred or shall exist which makes untrue or
incorrect in any material respect any statement or information
contained in the Registration Statement or Prospectus or which is not
reflected in the Registration Statement or Prospectus but should be
reflected therein in order to make the statements or information
contained therein not misleading in any material respect, or (iii) any
material adverse change shall have occurred in the financial markets
in the United States or elsewhere or a war or outbreak of hostilities
involving the United States or other calamity or crisis shall have
occurred or shall have escalated to such an extent as to affect
adversely the marketability of the Purchased Securities or, if this
Agreement provides for the sale of Debt Securities pursuant to delayed
delivery contracts, the Underwriters' Securities, or
(b) at or prior to the Closing Date, if any of the conditions
specified in Section 5 hereof shall not have been fulfilled when and
as required by this Agreement.
If this Agreement is terminated pursuant to any of the provisions
hereof, except as otherwise provided herein, the Company shall not be under any
liability to any Underwriter and no Underwriter shall be under any liability to
the Company except that (a) if this Agreement is terminated by the Underwriters
or the Representatives because of any failure or refusal on the part of the
Company to comply with the terms or to fulfill any of the conditions of this
Agreement, the Company will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including the fees and disbursement of their counsel)
reasonably incurred by them and (b) no Underwriter who shall have failed or
refused to purchase the Purchased Securities or, if this Agreement provides for
sales of Debt Securities pursuant to delayed delivery contracts, the
Underwriters' Securities, agreed to be purchased by it hereunder, without some
reason sufficient hereunder to justify its cancellation or termination of its
obligations hereunder, shall be relieved of liability to the Company or the
other Underwriters for damages occasioned by its default.
-17-
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10. Default of Underwriters. If one or more of the Underwriters shall
fail (other than for a reason sufficient to justify the termination of this
Agreement) to purchase on the Closing Date the principal amount of Purchased
Securities or, if this Agreement provides for sales of Debt Securities pursuant
to delayed delivery contracts, the Underwriters' Securities, agreed to be
purchased by such Underwriter or Underwriters, the Representatives, or if there
are none, such firm as may be designated by a majority in interest of the
Underwriters may find one or more substitute underwriters to purchase such
Purchased Securities or, if this Agreement provides for sales of Debt
Securities pursuant to delayed delivery contracts, the Underwriters'
Securities, or make such other arrangements as they may deem advisable or one
or more of the remaining Underwriters may agree to purchase such Purchased
Securities or, if this Agreement provides for sales of Debt Securities pursuant
to delayed delivery contracts, the Underwriters' Securities, in such
proportions as may be approved by the Representatives or such designated firm,
in each case upon the terms herein set forth. If no such arrangements have been
made within 24 hours after the Closing Date, and
(a) the aggregate principal amount or number of shares, as
the case may be, of Purchased Securities or, if this Agreement
provides for sales of Debt Securities pursuant to delayed delivery
contracts, the Underwriters' Securities, to be purchased by the
defaulting Underwriter or Underwriters shall not exceed 10% of the
total principal amount or number of shares, as the case may be, of
Purchased Securities or, if this Agreement provides for sales of Debt
Securities pursuant to delayed delivery contracts, the Underwriters'
Securities, each of the non-defaulting Underwriters shall be obligated
to purchase such Purchased Securities or, if this Agreement provides
for sales of Debt Securities pursuant to delayed delivery contracts,
the Underwriters' Securities, on the terms herein set forth in
proportion to their respective obligations hereunder, or
(b) the aggregate principal amount or number of shares, as
the case may be, of Purchased Securities or, if this Agreement
provides for sales of Debt Securities pursuant to delayed delivery
contracts, the Underwriters' Securities, to be purchased by the
defaulting Underwriter or Underwriters shall exceed 10% of the total
principal amount or number of shares, as the case may be, of Purchased
Securities or, if this Agreement provides for sales of Debt Securities
pursuant to delayed delivery contracts, the Underwriters' Securities,
the Company shall be entitled to an additional period of 24 hours
within which to find one or more substitute underwriters satisfactory
to the Representatives, or if there are none, to such designated firm
to purchase such Purchased Securities or, if this Agreement provides
for sales of Debt Securities pursuant to delayed delivery contracts,
the Underwriters' Securities, upon the terms set forth herein.
In any such case, either the Representatives, or if there are none,
such designated firm or the Company shall have the right to postpone the
Closing Date for a period of not more than seven business days in order that
necessary changes and arrangements may be effected. If the aggregate principal
amount or number of shares, as the case may be, of the Purchased Securities or,
if this Agreement provides for sales of Debt Securities pursuant to delayed
delivery contracts, the Underwriters' Securities, to be purchased by such
defaulting Underwriters shall exceed 10% of the total principal amount or
number of shares, as the case may be, of Purchased Securities or, if this
-18-
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Agreement provides for sales of Debt Securities pursuant to delayed delivery
contracts, the Underwriters' Securities, and neither the non-faulting
Underwriters nor the Company shall make arrangements pursuant to this Section
10 within the period stated for the purchase of the Purchased Securities or, if
this Agreement provides for sales of Debt Securities pursuant to delayed
delivery contracts, the Underwriters' Securities, which the defaulting
Underwriter or Underwriters agreed to purchase, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter and without
liability on the part of the Company, except, in each case, as provided in
Section 6(k), 7, 8 and 9 hereof. The provisions of this Section 10 shall not in
any way affect the liability of any defaulting Underwriter to the Company or
the non-defaulting Underwriters arising out of such default. A substitute
underwriter hereunder shall become an Underwriter for all purposes of this
Agreement.
11. Miscellaneous. The reimbursement, indemnification and contribution
agreements contained in Sections 6(k), 7 and 8 hereof and the representations,
warranties, covenants and agreements of the Company in this Agreement shall
remain in full force and effect regardless of (a) any termination of this
Agreement, (b) any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any officer, director or controlling
person and (c) delivery of and payment for Purchased Securities under this
Agreement.
This Agreement has been and is made solely for the benefit of the
Underwriters and the Company and their respective successors and assigns, and,
to the extent expressed herein, for the benefit of persons controlling any of
the Underwriters or the Company, directors and officers of the Company, and
their respective successors and assigns, and no other person, partnership,
association or corporation shall acquire or have any right under or by virtue
of this Agreement. The term "successors and assigns" shall not include any
purchaser of Purchased Securities, Underwriters' Securities or Contract
Securities merely because of such purchase.
In dealings hereunder, the Representatives, if designated, shall act
on behalf of each of the Underwriters, and the parties hereto shall be entitled
to act and rely upon any statement, request, notice or agreement on behalf of
any Underwriter made or given by such firm as the Representatives may designate
to the Company.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
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SCHEDULE I
DELAYED DELIVERY CONTRACT
----------, -----
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Portland General
Electric Company, an Oregon corporation (the "Company"), and the Company agrees
to sell to the undersigned
-----------------------------------------------------
--------------------------------------------------------------------------------
$________________ principal amount of the Company's [state title of issue] (the
"Securities"), offered by the Company's Prospectus dated _________, _____ and
Prospectus Supplement dated __________, _____, receipt of copies of which are
hereby acknowledged, at a purchase price equal to __% of the principal amount
thereof plus accrued interest from ____________, _____ to the date or dates for
payment and delivery thereof and on the further terms and conditions set forth
in this contract. The undersigned does not contemplate selling Securities prior
to making payment therefor.
The undersigned will purchase from the Company Securities in the
principal amounts and on the delivery date or dates set forth below:
Principal Plus Accrued
Delivery Date Amount Interest From:
------------- ------ --------------
$
$
$
Each such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date".
Payment for the Securities which the undersigned has agreed to
purchase on each Delivery Date shall be made to the Company in immediately
available funds at the office of _____________, New York, New York, at 10:00
a.m. (New York time) on the Delivery Date, upon delivery to the undersigned of
the Securities to be purchased by the undersigned on the Delivery Date, in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than
five full business days prior to the Delivery Date. If no such request is
received, the Securities will be registered in the name of the undersigned and
issued in a denomination equal to the aggregate principal amount of Securities
to be purchased by the Delivery Date.
-20-
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By the execution hereof, the undersigned represents and warrants to
the Company that (i) all necessary corporate action for the due execution and
delivery of this contract and payment for and purchase of the Securities has
been taken by it, (ii) no further authorization or approval of any governmental
or other regulatory authority is required for such execution, delivery, payment
or purchase, and (iii) its investment in the Securities is not, as of the date
hereof, prohibited under the laws of any jurisdiction to which the undersigned
is subject and which govern such investment.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have taken place to the underwriters (the "Underwriters") named in the
Prospectus Supplement referred to above, of such part of the Securities as is
to be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied by a copy of the
opinion of counsel for the Company delivered to the Underwriters in connection
therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other delayed delivery contract shall not relieve the
undersigned of its obligations under this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first-come, first-served basis.
If this contract is acceptable to the Company, it is requested that
the Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This
will become a binding contract, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
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THIS CONTRACT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
Yours very truly,
-----------------------------------------
(Purchaser)
By:
--------------------------------------
Name:
Title:
Accepted:
PORTLAND GENERAL ELECTRIC COMPANY
By:
-----------------------------------
Name:
Title:
----------------------------------------------
----------------------------------------------
(Address)
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name, telephone number and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed
are as follows: (Please print.)
Telephone Number
Name (Including Area Code) Dept.
---- --------------------- -----
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SCHEDULE II-A
[FORM OF FIRST LETTER OF ACCOUNTANTS
TO BE DELIVERED PURSUANT TO SECTION 5(a)]
(i) They are independent public accountants within the meaning of the
Securities Act and the Exchange Act and the respective applicable published
rules and regulations thereunder and the answer to item 10 of Form S-3 set
forth in the Registration Statement is correct insofar as it relates to them;
(ii) In their opinion the audited financial statements and financial
statement schedules included or incorporated in the Prospectus and reported on
by them comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the published rules and
regulations thereunder;
(iii) On the basis of a reading of the unaudited financial statements,
the unaudited notes to the audited financial statements and the supplementary
financial information incorporated in the Prospectus and of the latest
unaudited financial statements made available by the Company and its
subsidiaries; carrying out certain specified procedures (but not an examination
in accordance with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the comments set
forth in such letter; a reading of the minutes of the meetings of the
stockholders, directors and executive committees of the Company and certain of
its subsidiaries; and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to the date of the latest
audited financial statements incorporated in the Prospectus, nothing came to
their attention which caused them to believe that:
(1) the unaudited notes to the audited financial statements
and the supplementary financial information incorporated in the
Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and with the
published rules and regulations of the Commission thereunder; or
(2) the unaudited financial statements included or
incorporated in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the
Exchange Act and with the published rules and regulations thereunder;
and said unaudited financial statements are not presented in
conformity with generally accepted accounting principles applied on a
basis substantially consistent with that of the audited financial
statements incorporated in the Prospectus; and
(iv) They have performed certain other specified procedures as a
result of which they determined that certain information (if any) specified by
the Representatives or, if there are none, such firm as may be designated by a
majority in interest of the Underwriters, of an accounting,
-23-
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financial or statistical nature (which is limited to accounting, financial or
statistical information derived from the general accounting records of the
Company) incorporated in the Prospectus, agrees with the accounting records of
the Company and its subsidiaries, excluding any questions of legal
interpretation.
-24-
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SCHEDULE II-B
[FORM OF SECOND LETTER TO ACCOUNTANTS
TO BE DELIVERED PURSUANT TO SECTION 5(a)]
(i) On the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries; carrying out
certain specified procedures (but not an examination in accordance with
generally accepted auditing standards) which would not necessarily reveal
matters of significance with respect to the comments set forth in such letter;
a reading of the minutes of the meetings of the stockholders, directors and
executive committees of the Company and certain of its subsidiaries; and
inquiries of certain officials of the Company who have responsibility for
financial and accounting matters of the Company and its subsidiaries as to
transactions and events subsequent to the date of the latest financial
statements included or incorporated in the Prospectus, nothing came to their
attention which caused them to believe that: (a) with respect to the period
subsequent to the date of the latest consolidated balance sheet included or
incorporated in the Prospectus, there were, at a subsequent specified date not
more than five business days prior to the Closing Date, any change in the
capital stock or increases in short-term debt or long-term debt of the Company
and consolidated subsidiaries or any decreases in the consolidated net current
assets or net assets as compared with the amounts shown on the latest
consolidated balance sheet included or incorporated in the Prospectus; or (b)
for the period from the date of the latest financial statements included or
incorporated in the Prospectus to such specified date there were any decreases,
as compared with the corresponding period in the preceding year, in
consolidated operating revenues, net income or earnings per common share,
except in all instances for changes or decreases which the Prospectus discloses
have occurred or may occur or which are set forth in such letter; and
(ii) They have performed certain other specified procedures as a
result of which they determined that certain information (if any) specified by
the Representatives or, if, there are none, such firm as may be designated by a
majority in interest of the Underwriters, of an accounting, financial or
statistical nature (which is limited to accounting, financial or statistical
information derived from the general accounting records of the Company)
included in the Prospectus and not covered by their first letter delivered
pursuant to Section 5(a), agrees with the accounting records of the Company and
its subsidiaries, excluding any questions of legal interpretation.
-25-
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SCHEDULE III
[FORM OF OPINION OF XXXXXX & XXXXXX L.L.P., COUNSEL TO THE COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(f)]
(i) The Company is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Oregon, is duly
qualified to do business as a foreign corporation in the states of [enumerating
such states], has full corporate power and authority to own its properties and
to conduct its business as such business is described in the Prospectus , and
neither the character of the properties owned by it nor the nature of the
business transacted by it makes necessary its licensing or qualification as a
foreign corporation in any other state or jurisdiction;
(ii) Each of the Company's material subsidiaries is a corporation duly
incorporated and validly existing in good standing under the laws of its
jurisdiction of incorporation, and has full corporate power and authority to
own its properties and to conduct its business as such business is described in
the Prospectus;
(iii) The Underwriting Agreement has been duly authorized, executed
and delivered by the Company;
(iv) The Bond Indenture or the Notes Indenture, as the case may be,
has been duly authorized and validly executed, acknowledged and delivered by
the Company and, assuming due authorization, execution and delivery by the Bond
Trustee or the Notes Trustee, as the case may be, constitutes a valid and
binding agreement of the Company enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or similar laws relating to or affecting
creditors' rights generally and to general equity principles;
(v) In the event any of the Purchased Securities are to be purchased
pursuant to Delayed Delivery Contracts, each of such Delayed Delivery Contracts
has been duly authorized, executed and delivered by the Company and, assuming
due authorization, execution and delivery by the purchaser named therein,
constitutes a valid and binding agreement of the Company enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or similar laws
relating to or affecting creditors' rights generally and to general equity
principles;
(vi) The Purchased Securities are in the form contemplated by the Bond
Indenture or the Notes Indenture, as the case may be, and have been duly
authorized by all necessary corporate action on the part of the Company; the
Purchased Securities or, if the Underwriting Agreement provides for sales of
Debt Securities pursuant to delayed delivery contracts, the Underwriters'
Securities, when executed and authenticated as specified in the Bond Indenture
or the Notes Indenture, as the case may be (which facts, such counsel may
state, such counsel has not determined by an inspection of
-26-
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individual Purchased Securities or, if the Underwriting Agreement provides for
sales of Debt Securities pursuant to Delayed Delivery Contracts, the
Underwriters' Securities), and issued and delivered against payment pursuant to
the Underwriting Agreement, will be valid and binding obligations of the
Company entitled to the benefits of the Bond Indenture or the Notes Indenture,
as the case may be, and enforceable against the Company in accordance with
their respective terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or similar laws relating to or
affecting creditors' rights generally and to general equity principles; the
Contract Securities, if any, when executed, authenticated, issued and delivered
pursuant to the Bond Indenture or the Notes Indenture, as the case may be
(which facts, such counsel may state, such counsel has not determined by an
inspection of individual Contract Securities), and delayed delivery contracts,
if any, will be valid and binding obligations of the Company entitled to the
benefits of the Bond Indenture or the Notes Indenture, as the case may be, and
enforceable against the Company in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or similar laws relating to or affecting creditors' rights generally
and to general equity principles.
(vii) All authorizations, approvals, consents or other orders of any
governmental authority or agency required in connection with the authorization,
issuance and sale of the Purchased Securities by the Company pursuant to the
Underwriting Agreement have been obtained and continue in full force and
effect, other than authorizations, approvals, consents or other orders of state
securities commissions, authorities or agencies, with respect to which such
counsel need express no opinion;
(viii) The Bond Indenture or the Notes Indenture, as the case may be,
the Purchased Securities and the Delayed Delivery Contracts, if any, conform in
all material respects to the descriptions thereof in the Prospectus;
(ix) The Bond Indenture or the Notes Indenture, as the case may be,
has been qualified under the Trust Indenture Act;
(x) The Registration Statement has become effective under the
Securities Act and, to such counsel's knowledge and information, no stop order
suspending the effectiveness of the Registration Statement has been issued
under the Securities Act and no proceedings therefor have been initiated or
threatened by the Commission;
(xi) The Registration Statement and the Prospectus and any amendments
and supplements thereto made by the Company prior to the Closing Date (except
for the reports of experts pertaining to the financial statements and other
financial data included therein, as to which such counsel need express no
opinion, and exclusive of the documents incorporated by reference therein)
comply as to form in all material respects with the requirements of the
Securities Act and the Trust Indenture Act and the rules and regulations
thereunder;
-27-
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(xii) Each document filed with the Commission pursuant to the Exchange
Act (except for the reports of experts pertaining to the financial statements
and other financial data included in such documents, as to which such counsel
need express no opinion) which is incorporated by reference in the Prospectus
complied as to form, when so filed, in all material respects with the
requirements of the particular form of the Commission upon which it was filed;
(xiii) The execution and delivery of the Underwriting Agreement, each
of the Delayed Delivery Contracts, if any, and the Bond Indenture or the Notes
Indenture, as the case may be, and the consummation of the transactions therein
contemplated and the compliance with the terms of the Underwriting Agreement,
each of the Delayed Delivery Contracts, if any, and the Bond Indenture or the
Notes Indenture, as the case may be, do not and will not conflict with, violate
or result in a breach of any of the terms or provisions of, or constitute a
default under, the Certificate of Incorporation, as amended, or By-laws, as
amended, of the Company or any material subsidiary, or any indenture, mortgage
or other agreement listed on Exhibit A to this opinion, or to such counsel's
knowledge, any existing applicable law, rule, regulation, judgment, order or
decree of any domestic government, governmental instrumentality or court having
jurisdiction over the Company or any such subsidiary or any of their respective
properties;
(xiv) To such counsel's knowledge, no action, suit or proceeding at
law or in equity, or before or by any federal, state or other commission, board
or administrative agency, is pending or threatened against the Company or any
of the Company's material subsidiaries which would be required to be described
in the Prospectus and is not described as required;
(xv) The Company is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended; and
(xvi) The Company is not subject to, or is exempt from, regulation as
a "holding company" under the Public Utility Holding Company Act of 1935, as
amended.
Such counsel's opinion shall also state that such counsel has
participated in the preparation of the Registration Statement and the
Prospectus and discussed with management of the Company and representatives of
its accountants the contents of the Registration Statement and the Prospectus.
Although such counsel has not independently verified, and is not passing upon
and does not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained therein, nothing has come to such
counsel's attention that has caused them to believe that the Registration
Statement (except for the reports of experts pertaining to the financial
statements and other financial data included in the Registration Statement, as
to which such counsel need express no belief) contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus (except for the reports of experts pertaining to the financial
statements and other financial data included in the Prospectus, as to which
such counsel need express no belief), at the date of the prospectus supplement
relating to the Purchased Securities filed pursuant to Rule 424 under the
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Securities Act or at the Closing Date contained or contains an untrue statement
of a material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
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SCHEDULE IV
[FORM OF OPINION OF STOEL RIVES LLP, COUNSEL TO THE COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(g)]
(i) The Bond Indenture constitutes a valid first security interest on
all of the right, title and interest of the Company in and to the personal
properties and fixtures that are described in the granting clauses of the Bond
Indenture and that are intended to be subject to the lien thereof, subject only
to permitted encumbrances (as defined in the Bond Indenture);
(ii) The Bond Indenture constitutes a valid first mortgage lien on all
of the right, title and interest of the Company in and to all of the real
properties and interests in real properties that are described in the Bond
Indenture and that are intended to be subject to the lien thereof, subject only
to permitted encumbrances (as defined in the Bond Indenture) and to minor
restrictions, exceptions and reservations in conveyances, and defects which do
not in any material way impair the security afforded by the Bond Indenture;
(iii) The descriptions of the properties of the Company as set forth
in the Bond Indenture are legally sufficient to have caused the lien created by
the Bond Indenture to attach to such properties;
(iv) The provisions of the Bond Indenture for the extension of the
lien thereof to property and interests therein acquired by the Company after
the date of execution of the original Bond Indenture are effective to extend
the lien of the Bond Indenture to such properties and interests as a valid
first security interest or valid first mortgage lien (as the case may be) as
security for the Mortgage Bonds, subject to no prior liens other than permitted
encumbrances (as defined in the Bond Indenture) and subject only to minor
restrictions, exceptions and reservations in conveyances, and defects which do
not in any material way impair the security afforded by the Bond Indenture,
without the execution by the Company of any supplemental indenture or other
instrument specifically extending the lien of the Bond Indenture to such
property and interests;
(v) The Bond Indenture has been duly recorded and filed (or submitted
for recordation and filing with all fees and taxes therefore paid) as a
mortgage and security interest on the properties of the Company described in
the Bond Indenture and intended to be subject to the lien thereof, in such
manner and in all counties in which such properties are situated and in such
manner and in such other places as required by law to preserve and protect the
rights of the Bondholders and the Trustee, and no re-recording or re-filing is
necessary to preserve the lien established thereby; and
(vi) The Company has the power of eminent domain as a utility under
the laws where its properties are located.
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