Exhibit 1
AVA CAPITAL TRUST III
(A DELAWARE STATUTORY TRUST)
FLEXIBLE TRUST PREFERRED SECURITIES
(FIVE YEAR INITIAL FIXED RATE PERIOD)
(LIQUIDATION AMOUNT $1,000 PER PREFERRED SECURITY)
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UNDERWRITING AGREEMENT
March __, 2004
Xxxxxx Brothers Inc.
As Representative of the several Underwriters
named in Schedule I hereto,
000 0xx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
AVA CAPITAL TRUST III, a statutory trust (the "Trust") organized
under the Delaware Statutory Trust Act, 12 DEL. C. ss.3801, ET SEQ. (the
"Delaware Act"), and Avista Corporation, a Washington corporation (the
"Company", and together with the Trust, the "Offerors"), propose, subject to the
terms and conditions stated herein, to issue and sell to the Underwriters named
in Schedule I hereto (collectively, the "Underwriters") for whom you are acting
as representative (in such capacity, the "Representative"), with respect to the
sale by the Trust and the purchase by the Underwriters, acting severally and not
jointly, of the respective numbers of Flexible Trust Preferred Securities
(liquidation amount $1,000 per Preferred Security) of the Trust (the "Preferred
Securities") set forth in Schedule I.
The Preferred Securities will be guaranteed by the Company with
respect to distributions and payments upon liquidation, redemption and otherwise
(to the extent that the Trust shall have funds available therefor) (the
"Guarantee") pursuant to the Guarantee Agreement, to be dated as of March __,
2004 (the "Guarantee Agreement"), between the Company and Union Bank of
California, N.A. a California banking corporation, as trustee (the "Guarantee
Trustee") (the Preferred Securities and the related Guarantee under the
Guarantee Agreement being hereinafter called, collectively, the "Securities");
and
The entire net proceeds from the sale of the Securities will be
combined with the entire net proceeds from the sale by the Trust to the Company
of its common securities (the "Common Securities") and will be used by the Trust
to purchase
$_______,000 aggregate principal amount of Subordinated Debt Securities, Series
__ (the "Subordinated Debt Securities") to be issued by the Company; and
The Preferred Securities and the Common Securities will be issued
pursuant to the Amended and Restated Declaration of Trust, to be dated as of
March __, 2004 (the "Declaration of Trust"), among the Company, as Sponsor,
Xxxxx X. Xxxxxxxx and Xxxxx X. Xxxxxx (the "Regular Trustees"), SunTrust
Delaware Trust Company (the "Delaware Trustee"), Union Bank of California, N.A.
a national banking association duly organized under the laws of the United
States of America (the "Institutional Trustee" and, together with the Delaware
Trustee and the Regular Trustees, the "Trustees") and the holders, from time to
time, of undivided beneficial interests in the assets of the Trust; and
The Subordinated Debt Securities will be issued pursuant to an
Indenture, dated as of March __, 2004 between the Company and Union Bank of
California, N.A., as trustee (the "Indenture Trustee"), as supplemented by an
Officer's Certificate to be dated as of March __, 2004 setting forth the terms
of the Subordinated Debt Securities (such Indenture, as so supplemented, being
hereinafter called the "Indenture") between the Company and the Indenture
Trustee; and
The Company and the Trust will enter into an Agreement as to
Expenses and Liabilities, to be dated as of March __, 2004 (the "Agreement as to
Expenses and Liabilities"), pursuant to which the Company will guarantee on a
subordinated basis to each person or entity to which the Trust may be indebted
or liable, the full payment of such obligations; and
The Company and the Trust will enter into a Remarketing Agreement,
to be dated as of March __, 2004 (the "Remarketing Agreement") with Xxxxxx
Brothers Inc. as remarketing agent (the "Remarketing Agent"), pursuant to which,
among other things, the Remarketing Agent will conduct certain remarketing
procedures relating to the Preferred Securities; and
The Company and the Trust will enter into a Calculation Agent
Agreement, to be dated as of March __, 2004 (the "Calculation Agent Agreement")
with ______________, as calculation agent (the "Calculation Agent"), pursuant to
which, among other things, the Calculation Agent will conduct certain procedures
relating to the Preferred Securities; and
In connection with the foregoing, the Offerors have filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-3 (registration no. 333-________) for the registration under the
Securities Act of 1933, as amended (the "Act"), of the Securities, and the
Subordinated Debt Securities. A prospectus setting forth the terms of the
Securities and the Subordinated Debt Securities and of their sale and
distribution has been or will be prepared and will be filed or transmitted for
filing pursuant to Rule 424 under the Act. Such registration statement (as
amended, if applicable) and the prospectus constituting a part thereof, as from
time to time amended or supplemented pursuant to the Act, the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or otherwise, are
hereinafter referred to as the
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"Registration Statement" and the "Prospectus", respectively. Any reference
herein to the Registration Statement or the Prospectus shall be deemed to refer
to and include, in each case, all documents incorporated or deemed to be
incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act
and the information, if any, deemed to be part thereof pursuant to Rule 430A(b)
under the Act; except that, if any revised prospectus shall be provided to the
Underwriters by the Offerors for use in connection with the offering of the
Preferred Securities which differs from the Prospectus on file at the Commission
at the time the Registration Statement becomes effective (whether or not such
revised prospectus is required to be filed by the Offerors pursuant to Rule
424(b) under the Act), the term "Prospectus" shall refer to such revised
prospectus from and after the time it is first provided to the Underwriters for
such use.
Pursuant to Rule 429 under the Act, the Prospectus will be used as
a combined prospectus relating to the Registration Statement and to the
registration statement filed by the Company with the Commission on November 19,
1996 (registration no. 333-16353) which, as subsequently amended, became
effective on January 9, 1997; unless the context otherwise requires, all
references in this Agreement to the Registration Statement shall be deemed to
include such prior registration statement.
1. The Offerors jointly and severally represent and warrant to, and
agree with, each of the Underwriters that:
(a) (i) The Registration Statement has been prepared and
filed in accordance with the provisions of the Act, with the Commission;
such Registration Statement has been declared effective by the
Commission, and no other document with respect to the Registration
Statement or documents incorporated by reference therein has heretofore
been filed or transmitted for filing with the Commission (other than
prospectuses filed pursuant to Rule 424(b) of the rules and regulations
of the Commission under the Act, each in the form heretofore delivered to
the Underwriters);
(ii) Any reference herein to the Registration Statement
or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under
the Act, as of the effective date or the date thereof, as the case may
be; any reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to any
amendment or supplement to the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Prospectus, under the
Exchange Act, and incorporated by reference in such Prospectus;
(b) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose
has been initiated or, to the best knowledge of the Offerors, threatened
by the Commission; and no
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order preventing or suspending the use of any preliminary prospectus or
the Prospectus has been issued by the Commission;
(c) The Registration Statement, when it became effective,
conformed, and any further amendments thereto, when they become
effective, will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the Prospectus and any amendments or supplements
thereto, when filed with the Commission, will conform in all material
respects to the requirements of the Act and the Trust Indenture Act;
(d) The Registration Statement, when it became effective, and
any further amendments thereto when they become effective, did not and
will not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading; and the Prospectus and any amendments
and supplements thereto, when they are filed or transmitted for filing
with the Commission and at the Time of Delivery, will not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made, in light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties contained in this
subsection (d) shall not apply to statements or omissions made in
reliance upon and in conformity with information furnished in writing by
an Underwriter through the Representative expressly for use in the
Registration Statement, the Prospectus or any amendment or supplement to
either thereof;
(e) The documents incorporated by reference in the Prospectus,
when they were filed with the Commission, and any further documents so
filed and incorporated by reference, when they are filed with the
Commission or become effective, as the case may be, (i) conformed and
will conform in all material respects to the requirements of the Exchange
Act or the Act, as the case may be, and the rules and regulations of the
Commission thereunder and (ii) did not and will not include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements made, in light of the circumstances under
which they were made, not misleading;
(f) Except as set forth in or contemplated by the Prospectus,
(i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been (A) any
material adverse change in or affecting the business, financial
condition, shareholders' equity or results of operations of the Company
and its subsidiaries, considered as a whole, or any development
reasonably expected to result in such a material adverse change (in each
case, a "Material Adverse Change"), (B) any transaction entered into by
the Company or any subsidiary thereof which is material to the Company
and its subsidiaries as a whole other than transactions in the ordinary
course of business, and (C) any change in the capital stock or long-term
debt of the Company or any of its subsidiaries (except for shares of
common stock issued under the
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Company's Dividend-Reinvestment and Stock Purchase Plan and employee
stock plans and except for scheduled maturities of long-term debt) and
(ii) neither the Company nor any of its subsidiaries has any contingent
obligation which is material to the Company and its subsidiaries as a
whole;
(g) The Company has been duly incorporated and is validly
existing in good standing as a corporation under the laws of the State of
Washington, is duly qualified to do business and in good standing as a
foreign corporation under the laws of the States of California, Idaho,
Montana and Oregon, and has corporate and other power and authority and
has all material required approvals and authorizations to own, lease and
operate its properties, and to transact an electric and/or gas public
utility business in such jurisdictions;
(h) Each of Avista Capital, Avista Energy, Inc. and Avista
Advantage, Inc. is duly incorporated and validly existing in good
standing under the laws of the State of Washington;
(i) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully paid
and non-assessable;
(j) The Subordinated Debt Securities have been duly authorized
by all necessary corporate action on the part of the Company, and have
been duly executed by the Company and, when duly authenticated and
delivered by the Indenture Trustee under the Indenture, and issued,
delivered and paid for in accordance with this Agreement, will be duly
authenticated, issued and delivered by the Company and will constitute
valid and binding obligations of the Company, entitled to the benefits
provided by the Indenture and enforceable against the Company in
accordance with their terms, subject, as to enforcement, (i) to
bankruptcy, insolvency, reorganization, arrangement, moratorium and other
laws of general applicability relating to or affecting creditors' rights,
and (ii) by general principles of equity, whether such enforceability is
considered a proceeding in equity or at law, and by rules of law
governing specific performance, injunction relief, foreclosure,
receivership and other equitable remedies (the "Enforceability
Exceptions"), and are entitled to the benefits provided by the Indenture;
the Subordinated Debt Securities will be substantially in the form
previously delivered to the Representative; and the Subordinated Debt
Securities will conform in all material respects to the description
thereof contained in the Prospectus;
(k) The Indenture has been duly authorized and the Indenture
has been duly executed, delivered and recorded, and constitutes a valid
and legally binding instrument, enforceable in accordance with its terms,
subject to the Enforceability Exceptions; the Indenture has been duly
qualified under the Trust Indenture Act; and the Indenture will conform
in all material respect to the description thereof contained in the
Prospectus;
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(l) The issue and sale of the Securities, the Common Securities
and the Subordinated Debt Securities and the compliance by the Offerors
with all of the provisions of the Securities, the Common Securities, the
Subordinated Debt Securities, the Declaration of Trust, the Guarantee
Agreement, the Indenture, the Remarketing Agreement, the Calculation
Agent Agreement, the Agreement as to Expenses and Liabilities and this
Agreement and the consummation by the Offerors of the transactions herein
and therein contemplated will not (i) violate (A) the Company's Restated
Articles of Incorporation, as amended, or By-laws, as amended, or (B) the
Declaration of Trust or certificate of trust of the Trust, filed with the
Secretary of State of the State of Delaware on November 4, 1996, as
amended and restated on March [ ], 2004 (the "Certificate of Trust") or
(ii) result in a breach or violation of any of the terms or provisions
of, or constitute a default under, (A) any statute or, to the knowledge
of the Offerors, any order, rule or regulation of any court or any
federal or state regulatory authority or other governmental agency or
body having jurisdiction over the Offerors or any of its subsidiaries or
any of their properties, or (B) any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which each of the
Offerors or any of the Company's subsidiaries is a party or by which each
of the Offerors or any of the Company's subsidiaries is bound or to which
any of the property or assets of each of the Offerors or any of the
Company's subsidiaries is subject, which breach, violation or default
referred to in this clause (ii) would individually, or in the aggregate,
have, or would be reasonably expected to have, a material adverse effect
on the business, financial condition, shareholders' equity or results of
operations of the Company and its subsidiaries considered as a whole (in
each case, a "Material Adverse Effect");
(m) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the issue and sale of the Common Securities or the issue,
sale and offering of the Securities or the Subordinated Debt Securities
or the consummation by the Offerors of the transactions contemplated by
this Agreement, the Indenture, the Declaration, the Guarantee Agreement,
the Agreement as to Expenses and Liabilities, the Remarketing Agreement
or the Calculation Agent Agreement, except the registration under the Act
of the Securities and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution of the
Securities by the Underwriters, and such consents, approvals,
authorizations, filings or registrations as may be required by the
Washington Utilities and Transportation Commission (the "WUTC"), the
California Public Utilities Commission (the "CPUC"), the Idaho Public
Utilities Commission (the "IPUC"), the Public Service Commission of the
State of Montana (the "MPSC") and the Public Utility Commission of Oregon
(the "OPUC"), in each case in the manner contemplated hereby;
(n) None of the Offerors, Avista Energy, Inc. and Avista
Advantage, Inc. is currently in violation of its Restated Articles of
Incorporation, as amended, or By-laws, as amended, or Declaration of
Trust or the Certificate of Trust, as the
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case may be, or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
material indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it or
any of its properties may be bound, except for the performance or
observance of any such obligation, agreement, covenant or condition that
has been waived in accordance with the applicable agreement;
(o) Other than as set forth in the Prospectus, neither the
Company nor any of its subsidiaries (i) is in violation of any statute,
or any rule, regulation, decision or order of any governmental agency or
body or any court relating to the use, disposal or release of hazardous
or toxic substances or relating to the protection or restoration of the
environmental or human exposure to hazardous or toxic substances
(collectively, "environmental laws"), (ii) does not own or operate any
real property which to its knowledge is contaminated with any substance
that is subject to any environmental laws, (iii) is not to its knowledge
liable for any off-site disposal or contamination pursuant to any
environmental laws, and (iv) is not subject to any claim relating to any
environmental laws and the Company is not aware of any pending
investigation which could reasonably be expected to lead to such a claim,
which, in the case of (i), (ii), (iii), or (iv), would reasonably be
expected to result in a Material Adverse Effect;
(p) The statements set forth in the Prospectus under the
caption "Description of the Preferred Securities" insofar as it purports
to constitute a summary of the terms of the Preferred Securities, under
the caption "Description of the Subordinated Debt Securities," insofar as
it purports to constitute a summary of the terms of the Subordinated Debt
Securities, under the caption "Description of the Guarantee," insofar as
it purports to constitute a summary of the terms of the Guarantee, and
under the caption "Underwriting", insofar as it purports to describe the
provisions of the laws and documents referred to therein, are accurate
and fairly present the information purported to be given;
(q) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Offerors or any of
the Company's subsidiaries is a party or of which any property of the
Offerors or any of the Company's subsidiaries is the subject, which, if
determined adversely to the Offerors or any of the Company's
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect; and, to the best of the Offerors' knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(r) The Offerors are not, and, after giving effect to the
offering and sale of the Securities, will not be "investment companies"
or an entity "controlled" by an "investment company", as such terms are
defined in the United States Investment Company Act of 1940, as amended
(the "Investment Company Act");
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(s) The Offerors are subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act;
(t) Deloitte & Touche LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(u) The Trust has been duly created and is validly existing and
in good standing as a statutory trust under the Delaware Act with the
power and authority to own property and to conduct its business as
described in the Registration Statement and Prospectus and to enter into
and perform its obligations under this Agreement and the Declaration of
Trust; the Trust has no subsidiaries and is duly qualified to transact
business as a foreign company and is in good standing in any other
jurisdiction in which such qualification is necessary, except to the
extent that the failure to so qualify or be in good standing would not
have a Material Adverse Effect on the Trust; the Trust is not a party to
or otherwise bound by any agreement other than those described in the
Prospectus; the Trust is and will be classified for United States federal
income tax purposes as a grantor trust and not as an association taxable
as a corporation; and the Trust is and will be accounted for pursuant to
generally accepted accounting principles;
(v) The Declaration of Trust has been duly authorized by the
Company and, at the Time of Delivery, will have been duly executed and
delivered by the Company and the Regular Trustees, and assuming due
authorization, execution and delivery of the Declaration of Trust by the
Delaware Trustee and the Institutional Trustee, the Declaration of Trust
will, at the Time of Delivery, be a valid and binding obligation of the
Company and the Regular Trustees, enforceable against the Company and the
Regular Trustees in accordance with its terms, except to the extent that
enforcement thereof may be limited by the Enforceability Exceptions and
will conform in all material respects to all statements relating thereto
in the Prospectus; and, at the Time of Delivery, the Declaration of Trust
will have been duly qualified under the Trust Indenture Act;
(w) The Preferred Securities have been duly authorized by the
Declaration of Trust and, when issued and delivered by the Trust pursuant
to this Agreement against payment of the consideration set forth herein,
will be validly issued and (subject to the terms of the Declaration of
Trust) fully paid and non-assessable undivided beneficial interests in
the assets of the Trust, will be entitled to the benefits of the
Declaration of Trust and will conform in all material respects to all
statements relating thereto contained in the Prospectus; the issuance of
the Preferred Securities is not subject to preemptive or other similar
rights; (subject to the terms of the Declaration of Trust) holders of
Preferred Securities will be entitled to the same limitation of personal
liability under Delaware law as extended to stockholders of private
corporations for profit;
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(x) The Common Securities have been duly authorized by the
Declaration of Trust and, when issued and delivered by the Trust to the
Company against payment therefor as described in the Registration
Statement and Prospectus, will be validly issued and (subject to the
terms of the Declaration of Trust) fully paid undivided beneficial
interests in the Trust and will conform in all material respects to all
statements relating thereto contained in the Prospectus; the issuance of
the Common Securities is not subject to preemptive or other similar
rights; and, at the Time of Delivery, all of the issued and outstanding
Common Securities of the Trust will be directly owned by the Company,
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equitable right;
(y) The Guarantee Agreement, the Remarketing Agreement, the
Calculation Agent Agreement and the Agreement as to Expenses and
Liabilities have been duly authorized by the Company and, at the Time of
Delivery, will have been duly executed and delivered by the Company, and,
assuming due authorization, execution and delivery of the Guarantee
Agreement, the Remarketing Agreement, the Calculation Agent Agreement and
the Agreement as to Expenses and Liabilities by the other respective
parties thereto, each of the Guarantee Agreement, Remarketing Agreement,
the Calculation Agent Agreement and the Agreement as to Expenses and
Liabilities will, at the Time of Delivery, constitute a valid and binding
obligation of the Company, enforceable against the Company in accordance
with their respective terms except to the extent that enforcement thereof
may be limited by the Enforceability Exceptions, and each of the
Guarantee, the Guarantee Agreement, Remarketing Agreement, the
Calculation Agent Agreement and the Agreement as to Expenses and
Liabilities will conform in all material respects to all statements
relating thereto contained in the Prospectus; and, at the Time of
Delivery, the Guarantee Agreement will have been duly qualified under the
Trust Indenture Act;
(z) The Company's obligations under the Guarantee (i) are
subordinate and junior in right of payment to all liabilities of the
Company, except those obligations or liabilities made PARI PASSU or
subordinate by their terms, (ii) are PARI PASSU with the most senior
preferred or preference stock issued by the Company and with any
guarantee entered into by the Company with respect to any preferred or
preference securities of any affiliate of the Company and (iii) are
senior to all common stock of the Company;
(aa) The Subordinated Debt Securities are subordinated and
junior in right of payment to all "Senior Indebtedness" (as defined in
the Indenture) of the Company; and
(bb) Each of the Regular Trustees of the Trust is an officer of
the Company and has been duly authorized by the Company to execute and
deliver the Declaration of Trust;
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2. Subject to the terms and conditions herein set forth, the Trust
agrees to sell to each of the Underwriters, severally and not jointly, and each
of the Underwriters agrees, severally and not jointly, to purchase from the
Trust, the number of Preferred Securities set forth opposite the name of such
Underwriter in Schedule I hereto at a price per security equal to the public
offering price set forth in Schedule II hereto.
As compensation to the Underwriters for their commitments
hereunder and in view of the fact that the proceeds of the sale of the Preferred
Securities will be used to purchase the Subordinated Debt Securities of the
Company, the Company hereby agrees to pay at the Time of Delivery (as defined
below) to the Representative, for the accounts of the several Underwriters, a
commission per Preferred Security as set forth on Schedule II for the Preferred
Securities to be delivered by the Trust hereunder at the Time of Delivery.
3. Upon the authorization by the Representative of the release of the
Securities, the several Underwriters propose to offer the Securities for sale
upon the terms and conditions set forth in this Agreement and the Prospectus.
4. (a) The Preferred Securities to be purchased by each
Underwriter hereunder will be represented by one or more definitive global
securities in book-entry form to be deposited with The Depository Trust Company
("DTC") or its designated custodian and will have the Guarantee duly endorsed
thereon. The Trust will deliver the global securities to DTC or such custodian
to be credited to the account of the Representative, for the account of each
Underwriter, against payment by or on behalf of such Underwriter of the purchase
price therefore by wire transfer of Federal (same day) funds. The Trust will
cause the certificates representing the Securities to be made available to the
Representative for checking at least twenty-four hours prior to the Time of
Delivery (as defined below) at the office of DTC or its designated custodian
(the "Designated Office"). The time and date of such delivery and payment shall
be ____ a.m., New York City time, on _______, 2004 or such other time and date
as the Offerors and the Representative may agree upon in writing. Such time and
date are herein called the "Time of Delivery";
(b) The documents to be delivered at the Time of Delivery by or
on behalf of the parties hereto pursuant to Section 7 hereof, including the
cross receipt for the Securities and any additional documents requested by the
Underwriters pursuant to Section 7(m) hereof, will be delivered at the offices
of Xxxxx Xxxxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "Closing Location"), and the Securities will be delivered at the Designated
Office, all at the Time of Delivery. A meeting will be held at the Closing
Location at ____ p.m., New York City time, on the New York Business Day next
preceding such Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Agreement, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday,
which is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to close.
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5. The Offerors agree with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by the
Representative and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement; to
make no further amendment or any supplement to the Registration Statement
or Prospectus prior to the last Time of Delivery which shall be
reasonably disapproved by the Representative promptly after reasonable
notice thereof; to advise the Representative, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish the
Representative with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Offerors with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Prospectus and
for so long as the delivery of a prospectus is required in connection
with the offering or sale of the Securities; to advise the
Representative, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing
or suspending the use of any prospectus, of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amending or supplementing of
the Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or of
any order preventing or suspending the use of any prospectus or
suspending any such qualification, promptly to use its best efforts to
obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representative may reasonably request to qualify the Securities for
offering and sale under the securities laws of such jurisdictions as the
Representative may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the distribution of the
Securities, provided that in connection therewith the Offerors shall not
be required to qualify as foreign corporations or to file general
consents to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York
business day succeeding the date of this Agreement, or as soon thereafter
as may be reasonably practicable, to furnish the Underwriters with
written and electronic copies of the Prospectus in such quantities as the
Representative may from time to time reasonably request, and, if the
delivery of a prospectus is required at any time prior to the expiration
of nine months after the time of issue of the Prospectus in connection
with the offering or sale of the Securities and if at such time any event
shall have occurred 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,
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in the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary during such period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act, the Exchange
Act or the Trust Indenture Act, to notify the Representative and upon
their reasonable request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities as
many written and electronic copies as the Representative may from time to
time reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance, and in case any Underwriter is required to deliver a
prospectus in connection with sales of any of the Securities at any time
nine months or more after the time of issue of the Prospectus, upon their
request but at the expense of such Underwriter, to prepare and deliver to
such Underwriter as many written and electronic copies as such
Underwriter may request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) covering a period of at least 12 months
beginning after the later of (i) the effective date of the Registration
Statement or of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of this
Agreement, whichever is later, and (ii) the date of the Company's most
recent Annual Report on Form 10-K filed with the Commission prior to the
date of this Agreement, which will satisfy the provisions of Section
11(a) of the Act and the rules and regulations thereunder including Rule
158;
(e) During the period beginning from the date hereof and
continuing to and including the later of (i) the completion of the
distribution of the Securities, as shall be promptly notified to the
Offerors by the Representative upon such completion, but in no event
shall such period exceed 90 days from the Time of Delivery, and (ii) the
Time of Delivery, not to offer, sell, contract to sell or otherwise
dispose of, except as provided hereunder, any securities of the Company
that are substantially similar to the Securities, without the prior
written consent of the Representative (it being understood that this
paragraph shall not prohibit the issuance of commercial paper or other
debt securities with scheduled maturities of less than one year, debt
securities issued in connection with any credit facility, or debt
securities issued as collateral for other obligations);
(f) To use the net proceeds received by it from the sale of the
Securities pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds".
6. The Company hereby covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the following: (i)
the fees, disbursements
12
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any preliminary prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any agreement
among Underwriters, this Agreement, the Indenture, the Declaration, the
Guarantee Agreement, the Agreement as to Expenses and Liabilities, the
Remarketing Agreement, the Calculation Agent Agreement, the Blue Sky Memorandum,
closing documents (including any compilations thereof) and any other documents
in connection with the offering, purchase, sale and delivery of the Securities;
(iii) any expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky survey,
if any; (iv) any fees charged by securities rating services for rating the
Securities; (v) any filing fees incident to, and the fees and disbursements of
counsel for the Underwriters in connection with any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (vi) the cost of preparing the Securities; and (vii) the fees and
expenses of the Trustees and any agent of the Trustees and the fees and
disbursements of counsel for the Trustees, and (viii) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section. It is understood, however,
that, except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Securities by them, and
any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder shall be subject, in
the discretion of the Representative, to the condition that all representations
and warranties and other statements of the Offerors herein are, at and as of the
Time of Delivery, true and correct, the condition that the Offerors shall have
performed all of their obligations hereunder theretofore to be performed, and
the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) under the Act within the applicable time period
prescribed for such filing by the rules and regulations under the Act and
in accordance with Section 5(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the reasonable satisfaction of the Representative;
(b) There shall have been issued and there shall be in full
force and effect, (i) appropriate orders of the WUTC, the IPUC and the
OPUC permitting the issuance and sale of the Securities on the terms
herein set forth or contemplated, and containing no provision reasonably
unacceptable to the Representatives, it being understood that no such
order in effect on the date of this
13
Agreement contains any such unacceptable provision, and (ii) appropriate
exemptive orders of the MPSC and the CPUC;
(c) Xxxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters,
shall have furnished to the Representative such written opinion or
opinions, dated the Time of Delivery, with respect to the incorporation
of the Company and the formation of the Trust, the Declaration of Trust,
the Guarantee Agreement and the Securities, the Indenture, the
Registration Statement and the Prospectus, as well as such other related
matters as the Representative may reasonably request, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters. In rendering such
opinion or opinions, Xxxxxxxx & Xxxxxxxx LLP may rely, as to the
incorporation of the Company and as to all other matters governed by
Washington, California, Idaho, Montana or Oregon law, upon the opinion of
Xxxxxx Xxxxxx White & XxXxxxxxx LLP referred to below and as to the
creation of the Trust and as to other matters governed by Delaware law,
upon the opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., referred to below;
(d) Xxxxx X. Xxxxx, Senior Vice President and Chief Counsel for
Regulatory and Governmental Affairs for the Company, shall have furnished
to the Representative his written opinion or opinions, dated the Time of
Delivery, to the effect set forth in Exhibit A hereto;
(e) At the Time of Delivery, Xxxxxx Xxxxxx White & XxXxxxxxx
LLP and Xxxxx Xxxxxxxxxx LLP shall have furnished to the Representative
opinions, each dated as of the Time of Delivery, to the effect set forth
in Exhibit A hereto;
(f) At the Time of Delivery, Xxxxxxxx, Xxxxxx & Finger, P.A.,
Delaware counsel for the Trust, shall have furnished to the
Representative opinions, each dated as of the Time of Delivery as the
Representative may reasonably request to the effect set forth in Exhibit
B hereto;
(g) At the Time of Delivery, ____________________, Delaware
counsel for the Delaware Trustee, shall have furnished to the
Representative opinions, each dated as of the Time of Delivery as the
Representative may reasonably request to the effect set forth in Exhibit
C hereto;
(h) At the Time of Delivery, Seed Xxxxxxx LLP, counsel to the
Institutional Trustee, the Guarantee Trustee, the Indenture Trustee and
the Calculation Agent, shall have furnished to the Representative
opinions, each dated as of the Time of Delivery as the Representative may
reasonably request to the effect set forth in Exhibit D hereto;
(i) On the date of the Prospectus at a time prior to the
execution of this Agreement and at the Time of Delivery, Deloitte &
Touche LLP shall have furnished to the Representative a letter or
letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to the Representative;
14
(j) Except as set forth in or contemplated by the Prospectus,
(i) since the respective dates as of which information is given in the
Prospectus there shall not have been (A) any Material Adverse Change, (B)
any transaction entered into by the Company or any subsidiary thereof
which is material to the Company and its subsidiaries as a whole other
than transactions in the ordinary course of business, or (C) any change
in the capital stock or long-term debt of the Company or any of its
subsidiaries (except for shares of common stock issued under the
Company's Dividend-Reinvestment and Stock Purchase Plan and employee
stock plans and except for scheduled maturities of long-term debt) and
(ii) neither the Company nor any of its subsidiaries shall have any
contingent obligation which is material to the Company and its
subsidiaries as a whole, the effect of which, in the case of any such
event specified in clauses (i) or (ii) above, is in the judgment of the
Representative so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or delivery of the
Preferred Securities on the terms and in the manner contemplated in this
Agreement or in the Prospectus;
(k) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities or
preferred securities by any "nationally recognized statistical rating
organization", as such term is defined by the Commission for purposes of
Rule 436(g)(2) under the Act, and (ii) no such organization shall have
publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company's debt
securities or preferred securities;
(l) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in trading
in securities generally on the New York Stock Exchange or on the Pacific
Stock Exchange; (ii) a suspension or material limitation in trading in
the Company's securities on any securities exchange or in any
over-the-counter market; (iii) a general moratorium on commercial banking
activities in New York declared by either Federal or New York State
authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States; or (iv) the
outbreak of hostilities or the escalation of existing hostilities
involving the United States or the declaration by the United States of a
national emergency or war, or the occurrence of any other national or
international calamity or crises, including without limitation, acts of
terrorism, or any change in financial, political or economic conditions
in the United States or elsewhere, if the effect of any such event
specified in this clause (iv) in the judgment of the Representative,
makes it impracticable or inadvisable to proceed with the public offering
or delivery of the Securities on the terms and in the manner contemplated
in the Prospectus;
(m) The Offerors shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses; and
(n) The Offerors shall have furnished or caused to be furnished
to the Representative at the Time of Delivery certificates of officers of
the Offerors
15
satisfactory to the Representative as to the accuracy of the
representations and warranties of the Offerors herein at and as of the
Time of Delivery, as to the performance by the Offerors of all of their
obligations hereunder to be performed at or prior to the Time of
Delivery, as to the matters set forth in subsection (a) and (i) of this
Section and as to such other matters as the Representative may reasonably
request.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as such
expenses are incurred; PROVIDED, HOWEVER, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any preliminary prospectus, the
Registration Statement or the Prospectus or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representative expressly for use therein
and PROVIDED, FURTHER, that the Company shall not be liable to any Underwriter
under this subsection in respect of any such loss, claim, damage or liability
arising out of or based upon an untrue statement or alleged untrue statement in,
or an omission or alleged omission from, any preliminary prospectus if (i) such
Underwriter sold securities to a person to whom it delivered a copy of such
preliminary prospectus, (ii) no copy of the Prospectus was delivered to such
person with or prior to the written confirmation of the sale involved, (iii) the
Company had previously furnished copies of the Prospectus in sufficient
quantities and sufficiently in advance of the Time of Delivery to allow for the
distribution thereof prior to the Time of Delivery and (iv) the defect in such
preliminary prospectus was corrected in the Prospectus;
(b) Each Underwriter will indemnify and hold harmless the
Offerors against any losses, claims, damages or liabilities to which the
Offerors may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any preliminary prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
preliminary prospectus, the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the
16
Offerors by such Underwriter through the Representative expressly for use
therein; and will reimburse the Offerors for any legal or other expenses
reasonably incurred by the Offerors in connection with investigating or
defending any such action or claim as such expenses are incurred;
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. Notwithstanding the foregoing, in any
such proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. The indemnifying party shall not, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action 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. The indemnified party shall not, without the
written consent of the indemnifying party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any such pending or
threatened action or claim;
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
17
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Securities. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), 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 shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or the Underwriters on the other 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 subsection (d) 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 subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall, except as limited by subsection (c) above, be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the 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 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 Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint;
(e) The obligations of the Company under this Section 8 shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Offerors and to each
person, if any, who controls the Offerors within the meaning of the Act.
18
9. (a) If any Underwriter shall default in its obligation to
purchase the Securities which it has agreed to purchase hereunder at a Time of
Delivery, the Representative may in their discretion arrange for themselves or
another party or other parties to purchase such Securities on the terms
contained herein. If within thirty-six hours after such default by any
Underwriter the Representative does not arrange for the purchase of such
Securities, then the Offerors shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
reasonably satisfactory to the Representative to purchase such Securities on
such terms. In the event that, within the respective prescribed periods, the
Representative notifies the Offerors that they have so arranged for the purchase
of such Securities, or the Offerors notify the Representative that it has so
arranged for the purchase of such Securities, the Representative or the Offerors
shall have the right to postpone the Time of Delivery for a period of not more
than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Offerors agree to file promptly any
amendments to the Registration Statement or the Prospectus which, in the
reasonable judgment of the Representative, may thereby be made necessary. The
term "Underwriter" as used in this Agreement shall include any person
substituted under this Section 9 with like effect as if such person had
originally been a party to this Agreement with respect to such Securities;
(b) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or Underwriters by the
Representative and the Offerors as provided in subsection (a) above, the
aggregate principal amount of such Securities which remains unpurchased does not
exceed one-tenth of the aggregate principal amount of all the Securities to be
purchased at the Time of Delivery, then the Offerors shall have the right to
require each non-defaulting Underwriter to purchase the principal amount of
Securities which such Underwriter agreed to purchase hereunder at the Time of
Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its PRO RATA share (based on the principal amount of Securities which
such Underwriter agreed to purchase hereunder) of the Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default;
(c) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or Underwriters by the
Representative and the Offerors as provided in subsection (a) above, the
aggregate principal amount of such Securities which remains unpurchased exceeds
one-tenth of the aggregate principal amount of all the Securities to be
purchased at the Time of Delivery, or if the Offerors shall not exercise the
right described in subsection (b) above to require non-defaulting Underwriters
to purchase Securities of a defaulting Underwriter or Underwriters, then this
Agreement shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Offerors, except for the expenses to be borne
by the Offerors and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
19
10. The respective indemnities, agreements, representations,
warranties and other statements of the Offerors and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Offerors, or any officer or director or controlling person of the Offerors, and
shall survive delivery of and payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9
hereof, the Offerors shall not then be under any liability to any Underwriter
except as provided in Sections 6 and 8 hereof; but, if this Agreement is not
consummated for any other reason, the Offerors will reimburse the Underwriters
through the Representative for all out-of-pocket expenses approved in writing by
the Representative, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of the Securities not so delivered, but the Offerors shall then be
under no further liability to any Underwriter except as provided in Sections 6
and 8 hereof.
12. In all dealings hereunder, the Representative 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 Representative.
All statements, requests, notices and agreements hereunder shall
be in writing, and if to the Underwriters shall be delivered or sent by mail,
telex or facsimile transmission to the Representative at 000 0xx Xxxxxx, Xxx
Xxxx, XX 00000, Attention: Debt Capital Markets, Power Group (with a copy to the
General Counsel at the same address); and if to the Offerors shall be delivered
or sent by mail to the address of the Offerors set forth in the Registration
Statement, Attention: Treasurer. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Offerors and, to the extent provided in
Sections 8 and 10 hereof, the officers and directors of the Offerors and each
person who controls the Offerors or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Securities from any Underwriter shall be deemed a successor or assign
by reason merely of such purchase.
14. Time shall be of the essence of this Agreement.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
----------------------
20
If the foregoing is in accordance with your understanding, please
sign and return to us 8 counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this Agreement and such acceptance
hereof shall constitute a binding agreement between each of the Underwriters and
the Offerors. It is understood that the acceptance by you of this letter on
behalf of each of the Underwriters is pursuant to the authority set forth in the
Agreement Among Underwriters, a copy of which shall be submitted to the Offerors
for examination, but without warranty on the part of the Representative as to
the authority of the signers thereof (other than the Representative).
Very truly yours,
AVA CAPITAL TRUST III
By: Avista Corporation, as Sponsor
By:
----------------------------------------
Name:
Title:
AVISTA CORPORATION
By:
----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President and Chief Financial Officer
Accepted as of the date hereof:
XXXXXX BROTHERS INC.
By:
----------------------------------------
Name:
Title:
On behalf of each of the Underwriters
21
SCHEDULE I
NUMBER OF PREFERRED SECURITIES
UNDERWRITER TO BE PURCHASED
------------------------------
Xxxxxx Brothers Inc....................................
McDonald Investments, Inc..............................
Xxxxx Xxxxxxx & Co.....................................
Total.............................................
22
SCHEDULE II
Initial public offering price per
Preferred Security (and purchase
price per security to be paid by
the several Underwriters): $_______
Compensation per Preferred Security
to be paid by the Company to the
several Underwriters in respect of
their commitments: $_______ per
Preferred Security
23
EXHIBIT A
CONTENTS OF OPINIONS OF COUNSEL
