Exhibit 1(a)
_________ Preferred Securities
WASHINGTON WATER POWER CAPITAL I
(a Delaware Trust)
__% Trust Originated Preferred Securities,(SM)
Series A ("TOPrS(SM)")
(Liquidation Amount of $25 Per Preferred Security)
UNDERWRITING AGREEMENT
----------------------
___________, 199__
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
as Representative of the several Underwriters
Xxxxxxx Xxxxx World Headquarters
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Washington Water Power Capital I (the "Trust"), a
statutory business trust created under the Business Trust Act
(the "Delaware Act") of the State of Delaware (Chapter 38, Title
12, of the Delaware Code, 12 Del. C. SECTION 3801 et seq.), and
-------
The Washington Water Power Company, a Washington corporation (the
"Company" and, together with the Trust, the "Offerors") confirm
their agreement (the "Agreement") with Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx
Xxxxx") and each of the other Underwriters named in Schedule A
hereto (collectively, the "Underwriters", which term shall also
include any underwriter substituted as hereinafter provided in
Section 11 hereof), for whom Xxxxxxx Xxxxx is acting as
representative (in such capacity, Xxxxxxx Xxxxx shall
____________________
(SM) "Trust Originated Preferred Securities" and "TOPrS" are
service marks of Xxxxxxx Xxxxx & Co., Inc.
hereinafter be referred to as 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
___% Trust Originated Preferred Securities (liquidation amount of
$25 per preferred security) of the Trust ("Preferred Securities")
set forth in said Schedule A. The Preferred Securities will be
guaranteed by the Company with respect to distributions and
payments upon liquidation, redemption and otherwise (the
"Preferred Securities Guarantee") pursuant to the Preferred
Securities Guarantee Agreement (the "Preferred Securities
Guarantee Agreement"), dated as of _____________, ____, between
the Company and Wilmington Trust Company, as trustee (the
"Guarantee Trustee"), and entitled to the benefits of certain
backup undertakings described in the Prospectus (as defined
herein) with respect to the Company's agreement pursuant to the
Declaration (as defined herein) to pay all expenses relating to
the administration of the Trust. In certain circumstances, the
Trust may distribute Subordinated Debt Securities (as defined
herein) to holders of the Preferred Securities. The Preferred
Securities and the related Preferred Securities Guarantee are
referred to herein as the "Securities".
The Offerors understand that the Underwriters propose
to make a public offering of the Securities. The entire proceeds
from the sale of the Securities will be combined with the entire
proceeds from the sale by the Trust to the Company of its common
securities (the "Common Securities"), as guaranteed by the
Company, to the extent set forth in the Prospectus, with respect
to distributions and payments upon liquidation and redemption
(the "Common Securities Guarantee" and, together with the
Preferred Securities Guarantee, the "Guarantees") pursuant to the
Common Securities Guarantee Agreement (the "Common Securities
Guarantee Agreement" and, together with the Preferred Securities
Guarantee Agreement, the "Guarantee Agreements"), dated as of
___________________, ____, of the Company, and will be used by
the Trust to purchase the $____________ of ____% Subordinated
Debt Securities, Series A (the "Subordinated Debt Securities")
issued by the Company. The Preferred Securities and the Common
Securities will be issued pursuant to the Amended and Restated
Declaration of Trust of the Trust, dated as of __________, ____
(the "Declaration"), among the Company, as Sponsor, __________
and __________ (the "Regular Trustees") and Wilmington Trust
Company, a Delaware banking corporation, as Delaware trustee (the
"Delaware Trustee) and as institutional trustee (the
"Institutional Trustee" and, together with the Regular Trustees
and the Delaware Trustee, the "Trustees"). The Subordinated Debt
Securities will be issued pursuant to an indenture, dated as of
_________, ____ (the "Indenture"), between the Company and
Wilmington Trust Company, as Trustee (the "Debt Trustee").
Section 1. Representations and Warranties of the
-------------------------------------
Offerors.
--------
The Offerors jointly and severally represent and
warrant to, and agree with, each of the several Underwriters
that:
(a) The Offerors have carefully prepared in conformity
with the requirements of the Securities Act of 1933, as
amended (the "Act"), and the rules and regulations (the
"Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") promulgated thereunder, and
have filed with the Commission, a registration statement on
Form S-3 (File Nos. 333-______ and 333-_______) for the
registration of $150,000,000 in aggregate amount of a
combination of the Company's and the Trust's securities,
including the Securities and the Subordinated Debt
Securities, and such Registration Statement has become
effective. A prospectus supplement setting forth the terms
of the Preferred Securities and the Subordinated Debt
Securities and of their sale and distribution (the
"Prospectus Supplement") has been or will be so prepared and
will be filed or transmitted for filing pursuant to Rule 424
under the Act. The Registration Statement (including
exhibits) in the form in which it became effective, and as
amended to the date hereof, is herein referred to as a
"Registration Statement"; the prospectus included as a part
of the Registration Statement, as such prospectus may have
been amended to the date hereof, is hereinafter referred to
as the "Basic Prospectus"; and the Basic Prospectus, as
supplemented by the Prospectus Supplement, is herein
referred to as the "Prospectus"; provided, however, that (i)
-------- -------
any reference herein to the terms "Registration Statement",
"Basic Prospectus", "Prospectus" or "Prospectus Supplement"
shall be deemed to refer to and include the documents
incorporated therein by reference 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) of the Rules
and Regulations, (ii) 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 the Prospectus
pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and so incorporated by reference (all of such
documents so incorporated by reference referred to in clause
(i) above and this clause (ii) being hereinafter referred to
as the "Incorporated Documents"), (iii) if any revised
prospectus shall be provided to the Underwriters for use in
connection with the offering of the Securities which differs
from the prospectus on file with the Commission at the time
the Registration Statement became effective, the term
"Prospectus" shall refer to such revised prospectus from and
after the time it is first provided to the Underwriters for
such use, and (iv) no prospectus supplement to the Basic
Prospectus which relates to securities of the Company or the
Trust other than the Securities or the Subordinated Debt
Securities shall be deemed to be a part of the Basic
Prospectus or the Prospectus. The Offerors qualify for use
of Form S-3 for the registration of the securities.
(b) No order has been issued by the Commission
preventing or suspending the use of any prospectus relating
to the Securities; and the Registration Statement when it
became effective, and the Prospectus and any amendment or
supplement thereto, when filed or transmitted for filing
with the Commission and at the Closing Time (as defined
herein), complied or will comply in all material respects
with the applicable provisions of the Act, the Trust
Indenture Act of 1939, as amended (the "Trust Indenture
Act") and the applicable Rules and Regulations and did not
or will not include 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; provided, however, that the Offerors make no
-------- -------
representations or warranties as to (i) information
contained in or omitted from the Registration Statement or
the Prospectus, or any such amendment or supplement, in
reliance upon and in conformity with information furnished
in writing to the Offerors by any Underwriter, through the
Representative, specifically for use in the preparation
thereof or (ii) that part of the Registration Statement
which shall constitute the Statement of Eligibility (Form T-
1) under the Trust Indenture Act.
(c) The Incorporated Documents, when they were filed
with the Commission, complied in all material respects with
the applicable requirements of the Exchange Act and the
applicable rules and regulations of the Commission
thereunder, and none of such documents included 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, in the light of the circumstances under
which they were made, not misleading; and any additional
Incorporated Documents, when they are filed with the
Commission, will comply in all material respects with the
applicable requirements of the Exchange Act and the
applicable rules and regulations of the Commission
thereunder and will not include 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, in the light of the circumstances under which they
are made, not misleading; provided, however, that the
-------- -------
Offerors make no representations or warranties as to
information contained in or omitted from any such documents
in reliance upon and in conformity with information
furnished in writing to the Offerors by any Underwriter,
through the Representative, specifically for use in the
preparation thereof.
(d) The financial statements included in the
Registration Statement and Prospectus present fairly the
financial condition of the Company as of the dates indicated
and the results of its operations and its cash flows for the
periods indicated. Except as may be specifically mentioned
in the Registration Statement and Prospectus, said financial
statements have been prepared in accordance with generally
accepted accounting principles applied on a consistent
basis. Deloitte & Touche LLP, who has audited certain of
said financial statements, are independent public
accountants with respect to the Company as required by the
Act and the Rules and Regulations.
(e) Except as set forth in or contemplated by the
Prospectus, (i) since the date as of which information is
given in the Prospectus there has not been any material
adverse change in the condition of the Trust or the Company
and its subsidiaries as a whole, financial or otherwise,
(ii) since the date of the Prospectus there has not been any
transaction entered into by the Trust or the Company or any
subsidiary of the Company which is material to the Trust or
to the Company and its subsidiaries as a whole other than
transactions in the ordinary course of business, and (iii)
none of the Trust or the Company or any of the subsidiaries
of the Company has any contingent obligation which is
material to the Trust or the Company and its subsidiaries as
a whole.
(f) The Preferred Securities to be issued and sold by
the Trust hereunder conform in all material respects, or
will when issued so conform, to the description thereof in
the Prospectus and have been, or when issued as contemplated
hereby and in the Declaration will be, duly authorized and
validly issued, and, when so issued will be, subject to the
terms of the Declaration, fully paid and non-assessable
undivided beneficial interests in the assets of the Trust
and will be entitled to the benefits of the Declaration.
The issuance of the Preferred Securities is not subject to
preemptive or other similar rights.
(g) The Trust has been duly created and is validly
existing in good standing as a business trust under the
Delaware Act, with power and authority to own its properties
and conduct its business as described in the Prospectus and
to enter into and perform its obligations under this
Agreement and the Declaration. The Trust has no
subsidiaries and has been duly qualified for the transaction
of business and is in good standing under the laws of each
other jurisdiction in which qualification is required,
except where the failure to so qualify 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
treated as a consolidated subsidiary of the Company pursuant
to generally accepted accounting principles. 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.
(h) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Washington, with corporate power and
authority to own, lease and operate its properties and
conduct its business as described in the Prospectus, to
enter into and perform its obligations under this Agreement,
the Declaration, the Indenture and each of the Guarantees
and to purchase and hold the Common Securities, and the
Company has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under
the laws of each other jurisdiction in which qualification
is required, except where the failure to so qualify would
not have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(i) Each of Xxxxxxx Corporation, Washington Irrigation
& Development Company, WWP Energy Solutions, Inc. and WWP
Resource Services, Inc. is a corporation duly organized,
validly existing and in good standing under the laws of its
jurisdiction with corporate power and authority under such
laws to own, lease and operate its properties and conduct
its business.
(j) The Indenture has been and will at the Closing
Time be, duly authorized by the Company and qualified under
the Trust Indenture Act and at Closing Time will have been
duly executed and delivered by the Company and, assuming due
authorization, execution and delivery thereby by the Debt
Trustee, the Indenture will constitute a valid and legally
binding instrument, enforceable in accordance with its
terms, except to the extent the enforcement of the Indenture
may be limited by any applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other
laws affecting creditors' rights generally, by general
principles of equity (whether asserted in an action in
equity or at law) and by rules of law governing specific
performance, injunctive relief, foreclosure, receivership
and other equitable remedies; and the Indenture will conform
in all material respects to the description thereof
contained in the Prospectus.
(k) The Subordinated Debt Securities have been duly
authorized, and when issued and delivered pursuant to this
Indenture, and duly authenticated by the Debt Trustee
pursuant to the Indenture, will have been duly executed,
authenticated, issued and delivered and will constitute
valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture and
enforceable in accordance with their terms, except to the
extent the enforcement of the Subordinated Debt Securities
may be limited by any applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other
laws affecting creditors' rights generally, by general
principles of equity (whether asserted in an action in
equity or at law) and by rules of law governing specific
performance, injunctive relief, foreclosure, receivership
and other equitable remedies; and the Subordinated Debt
Securities will conform in all material respects to the
description thereof contained in the Prospectus.
(l) The Declaration has been and will at the Closing
Time be, duly authorized by the Company and qualified under
the Trust Indenture Act and at Closing Time will have been
duly executed and delivered by the Company and the Regular
Trustees, and assuming due authorization, execution and
delivery thereof by the Delaware Trustee and by the
Institutional Trustee, the Declaration will, at Closing
Time, be a valid and legally binding instrument enforceable
against the Company and the Regular Trustees in accordance
with its terms, except to the extent the enforcement of the
Declaration may be limited by any applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization,
moratorium or other laws affecting creditors' rights
generally, by general principles of equity (whether asserted
in an action in equity or at law) and by rules of law
governing specific performance, injunctive relief,
foreclosure, receivership and other equitable remedies; and
the Declaration will conform in all material respects to the
description thereof contained in the Prospectus.
(m) Each of the Guarantee Agreements has been and will
at the Closing Time be, duly authorized by the Company and,
in the case of the Preferred Securities Guarantee, qualified
under the Trust Indenture Act and, when executed and
delivered by the Company and the Guarantee Trustee (as
appropriate), will constitute valid and legally binding
instruments, enforceable against the Company in accordance
with its terms, except to the extent enforcement of the
Guarantee Agreements may be limited by any applicable
bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other laws affecting
creditors' rights generally, by general principles of equity
(whether asserted in an action in equity or at law) and by
rules of law governing specific performance, injunctive
relief, foreclosure, receivership and other equitable
remedies; each of the Guarantees and the Guarantee
Agreements will conform in all material respects to the
descriptions thereof contained in the Prospectus.
(n) The Common Securities to be issued and delivered
by the Trust to the Company against payment therefor as
described in the Registration Statement and Prospectus
conform in all material respects, or will when issued so
conform, to the description thereof in the Prospectus, and
have been, or when issued as contemplated by the Declaration
will be, duly authorized and validly issued and, when so
issued, subject to the terms of the Declaration, will be
fully paid and nonassessable undivided beneficial interests
in the assets of the Trust. The issuance of the Common
Securities is not subject to preemptive or other similar
rights; and at Closing Time 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
equity.
(o) Each of the Regular Trustees of the Trust is an
employee of the Company and has been duly authorized by the
Company to execute and deliver the Declaration.
(p) The Trust is not in violation of the Declaration
or its certificate of trust, filed with the Secretary of
State of the State of Delaware on November 4, 1996 (the
"Certificate of Trust"). The execution, delivery and
performance by the Company and the Trust of their respective
obligations under this Agreement, the Declaration, the
Preferred Securities, the Common Securities, the Indenture,
the Subordinated Debt Securities and the Guarantee
Agreements and the consummation of the transactions
contemplated herein and therein and compliance by the
Offerors with their respective obligations hereunder and
thereunder will not result in a breach or violation of any
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or the Trust is
a party or by which the Company or the Trust is bound or
which any of the property or assets of the Company or the
Trust are subject, nor will such action result in any
violation of the provisions of any statute or the Restated
Articles of Incorporation, as amended, of the Company, or
the Bylaws, as amended, of the Company or the Certificate of
Trust or the Declaration or, to the best of the Company's
and the Trust's knowledge, information or belief, 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 Company or the Trust or any of
their properties;
(q) This Agreement has been duly authorized, executed
and delivered by each of the Offerors.
(r) The Company has filed or will file with the
Washington Utilities and Transportation Commission, the
California Public Utilities Commission, the Idaho Public
Utilities Commission and the Public Utility Commission of
Oregon appropriate applications and any required amendment
or amendments thereto for orders authorizing the issuance
and sale of the Preferred Securities Guarantee and the
Subordinated Debt Securities on the terms set forth in or
contemplated by this Agreement; and no other consent,
approval, authorization, order, registration or
qualification of or with any court or governmental agency or
body is required for the offering, issuance or sale of the
Common Securities, the Preferred Securities, Subordinated
Debt Securities or the Guarantee Agreements hereunder or the
consummation by the Company and the Trust of the other
transactions contemplated by this Agreement, except such as
have been, or will have been prior to the Closing Time,
obtained under the Act or the Trust Indenture Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or
Blue Sky laws.
(s) Other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a
party or to which any property of the Company or any of its
subsidiaries is subject which, if determined adversely to
the Company or any of its subsidiaries, would individually
or in the aggregate have a material adverse effect on the
consolidated financial position, stockholders' equity or
results of operations of the Company and its subsidiaries;
and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(t) None of the Offerors is and, after giving effect
to the offering and sale of the Preferred Securities, will
be, an "investment company" or an entity "controlled" by an
"investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
Section 2. Sale and Purchase.
-----------------
On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein
set forth, the Trust agrees to sell to each Underwriter,
severally and not jointly, and each Underwriter, severally and
not jointly, agrees to purchase from the Trust, the number of
Preferred Securities set forth in Schedule A opposite the name of
such Underwriter, plus any additional number of Preferred
Securities that such Underwriter may become obligated to purchase
pursuant to the provisions of Section 11 hereof, at the price per
security set forth in Schedule B hereto.
Section 3. Delivery and Payment.
--------------------
Certificates for the Preferred Securities will be
delivered to the Representative for the accounts of the several
Underwriters at the offices of Xxxx & Priest LLP, 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, X.X., against payment of the purchase price
therefor by certified or official bank check, payable to the
order of the Trust in New York Clearing House funds or similar
next day funds, at 10:00 A.M., New York time, on the date
specified in Schedule B hereto (or if the New York and American
Stock Exchanges and commercial banks in the City of New York are
not open on such day, the next day on which such exchanges and
banks are open), or at such other time not later than eight full
business days thereafter as the Representative and the Offerors
determine. The hour and date of such delivery and payment are
hereinafter called the "Closing Time".
Certificates for the Preferred Securities shall be in
definitive form and registered in such names and denominations as
the Representative may request in writing not later than 10:00
A.M., New York time, on the second full business day prior to the
Closing Time or, if no such instructions shall have been received
by that time, in the names of the several Underwriters in such
authorized denominations as the Offerors may determine.
The certificates for the Preferred Securities shall be
delivered to the Representative through the facilities of the
Depository Trust Company in New York, New York ("DTC") for the
account of the Representative against payment of the purchase
price therefor. For the purpose of expediting the checking and
packaging of the certificates evidencing the Preferred Securities
by the Representative on behalf of the several Underwriters, the
Offerors agree to make such certificates available to the
Representative for such purpose at the offices of DTC, not later
than 2:00 P.M., New York time, on the first full business day
prior to the Closing Date.
It is understood that the person, firm or corporation
acting as the Representative, individually and not as the
Representative of the several Underwriters, may (but shall not be
obligated to) make payment to the Offerors on behalf of any
Underwriter whose check shall not have been received by the
Representative at the time of delivery of the Preferred
Securities to be purchased by such Underwriter. No such payment
by such person, firm or corporation shall relieve any such
Underwriter of any of its obligations hereunder.
At the Closing Time, the Trust agrees to pay, or cause
to be paid, a commission payable at such time to the Underwriters
in an amount specified in Schedule B hereto by or certified or
official bank check or checks payable to Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated in New York Clearing House funds or
other similar next day funds.
Section 4. Covenants of the Offerors.
-------------------------
Each of the Offerors jointly and severally covenant
with each Underwriter:
(a) At the earliest practicable time after the
execution of this Agreement, to file or transmit for filing
the Prospectus Supplement with the Commission pursuant to
Rule 424 of the Rules and Regulations and to notify the
Representative by telephone promptly after the Prospectus
Supplement has been so filed or transmitted for filing; and
to notify the Representative by telephone, promptly after
they shall receive notice thereof, of the time when any
amendment to the Registration Statement has become effective
or any supplement to the Prospectus has been filed with the
Commission or transmitted for filing. The Company will
timely file all documents required to be filed by the
Company with the Commission pursuant to the Exchange Act
subsequent to the effective date of the Registration
Statement and for so long as the delivery of a Prospectus is
required in connection with the offering or sale of the
Securities. The Offerors will not file any amendment or
supplement to the Registration Statement or the Prospectus
to which the Representative shall reasonably object by
notice to the Offerors after having been furnished with
copies a reasonable time prior to filing.
(b) To give the Representative immediate advice, and
to confirm the advice in writing, of any request received by
the Offerors from the Commission for amendment of the
Registration Statement or supplements to the Prospectus or
for additional information with respect thereto, and of the
institution by the Commission of any proceedings for, or any
issuance by the Commission of, a stop order suspending the
effectiveness of the Registration Statement, and to make
every reasonable effort to prevent the issuance of any such
stop order or to obtain the prompt withdrawal of any such
stop order which may be issued.
(c) To deliver to the Representative, at or before the
Closing Time, one signed copy of the Registration Statement
as initially filed and of each amendment thereto including
all exhibits filed therewith or incorporated therein by
reference and not previously furnished and of the
Incorporated Documents and to furnish to the Representative
upon request, at the earliest practicable time following the
filing thereof, such number of conformed copies of the
Registration Statement as initially filed and of each
amendment or supplement thereto without exhibits for each of
the Underwriters.
(d) To furnish the Underwriters through or upon the
order of the Representative, with 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 effective date of the Registration
Statement 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, 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 to amend or supplement the
Prospectus in order to comply with the Act, promptly to
notify the Representative and upon request of the
Representative to amend or supplement the Prospectus by
either (i) preparing and furnishing without charge to each
Underwriter and to any dealer in securities, upon the order
of the Representative, as many copies as the Representative
may from time to time reasonably request of an amended
Prospectus or a supplement to be attached to or furnished
with the Prospectus or (ii) making an appropriate filing
pursuant to Section 13 or 14 of the Exchange Act, which, in
the case of both clauses (i) and (ii), will correct such
statement or omission or effect such compliance, provided
that should such event relate solely to activities of any
Underwriter, then such Underwriter shall assume the expense
of preparing and furnishing any such amendment or
supplement.
(e) To make generally available to the Trust's
security holders, as promptly as may be practicable, an
earning statement of the Company in reasonable detail (which
need not be audited) covering a period of twelve consecutive
months beginning on the first day of the month next
succeeding the date upon which the Prospectus Supplement is
filed or transmitted for filing pursuant to Rule 424 under
the Act, which earnings statement shall satisfy the
requirements of Section 11(a) of the Act and Rule 158
thereunder.
(f) During a period of five years from the date of
this Agreement, to deliver to the Representative and, upon
request, to each of the other Underwriters, a copy of each
annual and interim report of the Company to its
stockholders, and to deliver to the Representative quarterly
balance sheets and statements of income and retained
earnings (which need not be audited) and annual balance
sheets and statements of income and retained earnings (which
shall be audited) of the Company, and copies of all such
documents, reports and information as shall be of general
interest which shall be furnished by the Company to its
stockholders. To the extent the accounts of the Company and
its subsidiaries are consolidated, such financial statements
shall be furnished on a consolidated basis.
(g) To cooperate with the Representative in
qualifying the Securities for offer and sale under the
securities or "blue sky" laws of such jurisdictions as the
Representative may reasonably designate; provided, however,
that none of the Offerors shall be required to qualify as a
foreign corporation or to file a general consent to service
of process in any jurisdiction, or to comply with any other
requirement reasonably deemed by either of them to be unduly
burdensome. The Offerors will, from time to time, prepare
and file such statements and reports as are or may be
required to continue such qualifications in effect for so
long a period as the Representative may reasonably request,
but in no event beyond the last day of the calendar month in
which the first anniversary of the date of this Agreement
shall fall.
(h) To use all reasonable efforts to effect the
listing of the Preferred Securities (including the Preferred
Securities Guarantee with respect thereto) on the New York
Stock Exchange.
(i) During the period beginning from the date of this
Agreement and continuing for a period of thirty (30) days
from the date of this Agreement, not to sell, offer to sell,
or otherwise dispose of, any Preferred Securities, any
security convertible into or exchangeable into or
exercisable for Preferred Securities or Subordinated Debt
Securities or any other securities substantially similar to
the Subordinated Debt Securities or the Preferred Securities
(except for the Subordinated Debt Securities and the
Preferred Securities) without the prior consent of the
Representative; provided, however, that nothing herein shall
be deemed to restrict the offer or sale by the Company of
any debt issued under its Mortgage and Deed of Trust, dated
as of June 1, 1939, from the Company to Citibank, N.A., as
trustee.
Section 5. Payment of Expenses.
-------------------
The Company will pay all expenses incident to the
performance of each Offerors' obligations under this Agreement,
including, but not limited to, (i) the preparation and filing of
the Registration Statement as originally filed and of each
amendment thereto, (ii) the preparation, issuance and delivery of
the certificates for the Preferred Securities to the
Underwriters, (iii) the fees and disbursements of the Company's
and the Trust's counsel and accountants, (iv) the qualification
of the Securities and the Subordinated Debt Securities under
securities laws in accordance with the provisions of Section 4(g)
hereof, including filing fees and the fees and disbursements of
counsel for the Underwriters in connection therewith and in
connection with the preparation of any Blue Sky survey and any
legal investment survey, (v) the printing and delivery to the
Underwriters of copies of the Registration Statement as
originally filed and of each amendment thereto, of each
preliminary prospectus, and of the Prospectus and any amendments
or supplements thereto, (vi) the printing and delivery to the
Underwriters of copies of any Blue Sky survey and any legal
investment survey, (vii) the fee, if any, of the National
Association of Securities Dealers, Inc., (viii) the fees and
expenses of the Debt Trustee, including the fees and
disbursements of counsel for the Debt Trustee in connection with
the Indenture and the Subordinated Debt Securities, (ix) the fees
and expenses of the Institutional Trustee, the Delaware Trustee
and the Guarantee Trustee, including the fees and disbursements
of counsel for the Institutional Trustee in connection with the
Declaration and the Certificate of Trust, (x) any fees payable in
connection with the rating of the Preferred Securities and the
Subordinated Debt Securities, (xi) the fees and expenses incurred
in connection with the listing of the Preferred Securities and,
if applicable, the Subordinated Debt Securities on the New York
Stock Exchange, (xii) the cost and charges of any transfer agent
or registrar, and (xiii) the cost of qualifying the Preferred
Securities with DTC.
If this Agreement is terminated by the Representative
in accordance with the provisions of Section 6 or Section 10
hereof, the Company shall reimburse the Underwriters for all out-
of-pocket expenses (including the reasonable fees and
disbursements of counsel for the Underwriters), but not exceeding
[$ ], reasonably incurred by them in contemplation of the
performance of this Agreement. In no event shall the Company or
the Trust be liable to any Underwriter for damages for loss of
anticipated profits from the transactions contemplated by this
Agreement.
Section 6. Conditions of Underwriters'
---------------------------
Obligations.
-----------
The obligations of the several Underwriters shall be
subject (i) to the accuracy, at and as of the Closing Time, of
the representations and warranties of the Offerors herein
contained, (ii) to the performance by the Offerors of their
obligations hereunder as are to be performed at or prior to the
Closing Time, and (iii) to the following further conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued prior to the
Closing Time; no proceedings for that purpose shall have
been initiated or be pending before, or to the knowledge of
the Offerors or the Representative contemplated by, the
Commission at the Closing Time; and any request of the
Commission for additional information (to be included in the
Registration Statement or the Prospectus or otherwise) shall
have been complied with to the satisfaction of the
Representative.
(b) At or before 1:00 P.M., New York time, on the
second business day following the date of this Agreement, or
at such later time and date as may be agreed upon in writing
by the Representative, there shall have been issued, and at
the Closing Time there shall be in full force and effect,
appropriate orders of the Washington Utilities and
Transportation Commission, the California Public Utilities
Commission, the Idaho Public Utilities Commission and the
Public Utility Commission of Oregon permitting the issuance
and sale of the Preferred Securities Guarantee and the
Subordinated Debt Securities on the terms herein set forth
or contemplated, and containing no provision reasonably
unacceptable to the Representative (it being understood that
no such order in effect on the date of this Agreement
contains any such unacceptable provision).
(c) At the Closing Time, the Representative shall have
received from Paine, Hamblen, Xxxxxx, Xxxxxx & Xxxxxx LLP,
of Spokane, Washington, general counsel for the Company , an
opinion, dated as of the Closing Time, substantially in the
form of Exhibit 1 hereto.
(d) At the Closing Time, the Representative shall have
received from Xxxx & Priest LLP, of New York, New York,
counsel for the Offerors, an opinion, dated as of the
Closing Time, substantially in the form of Exhibit 2 hereto.
(e) At the Closing Time, the Representative shall have
received from Xxxxxxxx, Xxxxxx & Finger, P.A., special
Delaware counsel to the Offerors, an opinion, dated as of
the Closing Time, substantially in the form of Exhibit 3
hereto.
(f) At the Closing Time, the Representative shall have
received from Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to
Wilmington Trust Company, as Institutional Trustee under the
Declaration, and Guarantee Trustee under the Preferred
Securities Guarantee Agreement, an opinion, dated as of the
Closing Time, substantially in the form of Exhibit 4 hereto.
(g) At the Closing Time, the Representative shall have
received the opinion of Xxxxxxxx & Xxxxxxxx, New York, New
York, counsel for the several Underwriters, in form and
substance satisfactory to the Representative with respect to
the incorporation and legal existence of the Company, the
formation and legal existence of the Trust, the Preferred
Securities, the Indenture, the Preferred Securities
Guarantee Agreement, this Agreement, the Registration
Statement, the Prospectus and other related matters as the
Representative may reasonably require.
In rendering such opinions, Xxxx & Priest LLP and
Xxxxxxxx & Xxxxxxxx may assume the conclusions of Delaware law
relating to the Trust, the Preferred Securities and the
Declaration set forth in the opinion of Xxxxxxxx, Xxxxxx &
Finger, P.A., special Delaware counsel for the Offerors, which
shall be delivered in accordance with Section 6(e) hereto, and as
to the incorporation of the Company and as to all other matters
of Washington, California, Idaho, Montana or Oregon law, may
assume the conclusions set forth in the opinion of Paine,
Hamblen, Xxxxxx, Xxxxxx & Xxxxxx LLP which shall be delivered in
accordance with Section 6(c) hereto.
(h) At the Closing Time, the Representative shall have
received from Deloitte & Touche LLP a letter, dated as of
Closing Time, substantially to the effect set forth in
Exhibit 5 hereto.
(i) At the Closing Time, the Preferred Securities
shall be rated in one of the four highest rating categories
for long term debt ("Investment Grade") by any nationally
recognized statistical rating agency (as defined for
purposes of Rule 436(g) under the Act), and the Trust shall
have delivered to the Representative a letter, dated the
Closing Time, from such nationally recognized statistical
rating agency, or other evidence satisfactory to the
Representative, confirming that the Preferred Securities and
the Subordinated Debt Securities have Investment Grade
ratings.
(j) At the Closing Time, the Preferred Securities
shall have been approved for listing on the New York Stock
Exchange upon notice of issuance.
(k) At the Closing Time, the Representative shall have
received certificates, dated the Closing Time, from the
Chairman of the Board of Directors, the President, any Vice
President or the Treasurer of the Company and from a Regular
Trustee of the Trust, to the effect that, to the best of his
knowledge based on a reasonable investigation:
(i) no stop order suspending the effectiveness of
the Registration Statement has been issued and no
proceedings for that purpose have been instituted or
are pending or contemplated under the Act;
(ii) except as set forth in or contemplated by the
Prospectus, (A) since the date of the Prospectus there
has not been any material adverse change in the
condition of the Trust or the Company and its
subsidiaries as a whole, financial or otherwise, or in
the business prospects of the Company and its
subsidiaries as a whole (B) since the date of the
Prospectus there has not been any transaction entered
into by the Trust or the Company or any subsidiary of
the Company which is material to the Trust or the
Company and its subsidiaries as a whole other than
transactions in the ordinary course of business, and
(C) none the Trust or the Company or any subsidiaries
of the Company has any contingent obligation which is
material to the Trust or the Company and its
subsidiaries as a whole; and
(iii) the representations and warranties on the
part of the Company and the Trust contained in this
Agreement are true and correct as if made on and as of
the Closing Time, and the Trust and the Company have in
all material respects complied with all of the
agreements and satisfied all of the conditions on its
part to be performed or satisfied under this Agreement
at or prior to the Closing Time.
(l) At or prior to the Closing Time, the Offerors
shall have furnished to the Representative such further
certificates as the Representative shall reasonably request.
The opinions and certificates mentioned in this
Agreement shall be deemed to be in compliance with the provisions
hereof only if they are in all material respects satisfactory to
the Representative.
If any condition specified in this Section shall not
have been fulfilled, this Agreement may be terminated by the
Representative without liability of any party to any other party,
except for the obligation of the Company to pay certain expenses
to the extent provided in Section 5 hereof and except for any
liability under Sections 8 and 9 hereof.
Section 7. Conditions of Offerors'
-----------------------
Obligations.
-----------
The obligations of the Offerors to sell and deliver the
Securities and such of the other obligations of the Offerors
hereunder as are to be performed by them at or prior to the
Closing Time shall be subject to the following conditions:
(a) At the Closing Time no stop order suspending the
effectiveness of the Registration Statement shall be in
effect and no proceedings for that purpose shall be pending
before, or to the knowledge of the Offerors or the
Representative contemplated by, the Commission.
(b) At or before 1:00 P.M., New York time, on the
second business day following the date of this Agreement, or
at such later time and date as may be agreed upon in writing
by the Offerors, there shall have been issued, and at the
Closing Time there shall be in full force and effect,
appropriate orders of the Washington Utilities and
Transportation Commission, the California Public Utilities
Commission, the Idaho Public Utilities Commission and the
Public Utility Commission of Oregon permitting the issuance
and sale of the Preferred Securities, the Preferred
Securities Guarantee and the Subordinated Debt Securities on
the terms herein set forth or contemplated, and containing
no provision reasonably unacceptable to the Offerors (it
being understood that no such order in effect on the date of
this Agreement contains any such unacceptable provision).
If any of the conditions specified above in this
Section shall not have been fulfilled, this Agreement may be
terminated by the Offerors without liability on the part of any
party to any other party, except for the obligation of the
Offerors to pay certain expenses to the extent provided for in
Section 5 hereof and except for any liability under Sections 8
and 9 hereof.
Section 8. Indemnification.
---------------
(a) The Offerors agree to jointly and severally
indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the
meaning of Section 15 of the 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, the Basic Prospectus or the Prospectus (or
any amendment or supplement thereto), including the
omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make
the statements therein 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 any claim whatsoever based upon any such
untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expenses whatsoever
incurred (including, subject to Section 8(c) hereof,
the fees and disbursements of counsel chosen by the
Representative) 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 alleged untrue statement or omission, to
the extent that any such expense is not paid under (i)
or (ii) above;
provided, however, that this indemnity agreement 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 Trust or the Company by any Underwriter through the
Representative specifically for use in the Registration
Statement (or any amendment thereto), the Basic Prospectus
or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto); and provided, further,
-------- -------
that, insofar as it relates to the Basic Prospectus, the
indemnity agreement contained in this subsection (a) shall
not inure to the benefit of any Underwriter on account of
any loss, liability, claim, damage or expense whatsoever (or
actions in respect thereof) arising from the sale of
Securities by such Underwriter to any person if a copy of
the Prospectus shall not have been sent or given to such
person with or prior to the written confirmation of the sale
involved to the extent that the Prospectus, if so sent or
delivered, would have cured the defect in the Basic
Prospectus giving rise to such loss, liability, claim,
damage or expense; and provided, further, that if, at any
-------- -------
time after the date of filing the Prospectus or any
amendment or supplement to the Prospectus with the
Commission, any event shall have occurred as a result of
which the Prospectus as then amended or supplemented
("Current Prospectus") would include an untrue statement of
a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made when such
Prospectus is delivered, not misleading, and if the Offerors
shall have furnished to any Underwriter copies of an amended
Prospectus ("amended Prospectus") or of a supplement to be
attached to or furnished with the current Prospectus
("Supplement"), to which the Representative shall not have
objected pursuant to Section 4(a) hereof, for delivery in
connection with offers and sales of the Securities, the
indemnity agreement contained in this Section 8, insofar as
it relates to the current Prospectus, shall not inure to the
benefit of such Underwriter on account of any loss,
liability, claim, damage or expense (or actions in respect
thereof) arising from the sale of Securities by such
Underwriter to any person subsequent to the time such copies
have been so furnished to such Underwriter, if a copy of the
amended Prospectus or the Supplement, as the case may be,
shall not have been sent or given to such person with or
prior to the written confirmation of the sale involved, to
the extent that the amended Prospectus or the Supplement, if
so sent or delivered, would have cured the defect in the
current Prospectus giving rise to such loss, liability,
claim, damage or expense.
(b) The Company agrees to indemnify the Trust against
any and all loss, liability, claim, damage and expense
whatsoever, as incurred and as due from the Trust under
Section 8(a) hereof.
(c) Each Underwriter severally agrees to indemnify and
hold harmless the Offerors, their directors, trustees, each
of their officers and trustees who signed the Registration
Statement and each person, if any, who controls the Company
within the meaning of Section 15 under the Act against any
and all loss, liability, claim, damage and expense
whatsoever described in the indemnity contained in Section
8(a) hereof, as incurred, but only with respect to untrue
statements or omissions made in the Registration Statement
(or any amendment thereto), the Basic Prospectus 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 any
Underwriter through the Representative specifically for use
in the Registration Statement (or any amendment thereto),
the Basic Prospectus or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(d) 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 which it may have otherwise than on
account of this indemnity agreement. An indemnifying party
may participate at its own expense in the defense of any
action. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in
addition to 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.
Section 9. Contribution. In order to provide for just
------------
and equitable contribution in circumstances in which the
indemnity agreement provided for in Section 8 is for any reason
held to be unenforceable by the indemnified parties although
applicable in accordance with its terms, the Offerors and the
Underwriters shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature
contemplated by said indemnity agreement incurred by the Offerors
and one or more of the Underwriters, as incurred, in such
proportion as is appropriate to reflect the relative benefits
received by the Trust and the Company on the one hand and the
Underwriters on the other from the offering of the Securities
from which such loss, liability, claim, damage or expense relates
and the relative fault of the Trust and the Company on the one
hand and the Underwriters on the other 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 Trust and 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 Trust and the Company bear to
the total underwriting discounts and commissions received by the
Underwriters in each case as set forth 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 required to be stated therein or
necessary in order to make the statements therein not misleading
relates to information supplied by the Trust and the Company on
the one hand or by 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 Trust, the
Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 9 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. The amount
paid or payable by an indemnified party as a result of the
losses, liabilities, claims, damages or expenses (or actions in
respect thereof) referred to above in this Section 9 shall 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 Section 9, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total
price at which the Preferred 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
obligations of the Underwriters to contribute are several in
proportion to their respective underwriting obligations with
respect to the Preferred Securities and not joint. For purposes
of this Section 9, each person, if any, who controls an
Underwriter within the meaning of Section 15 under the Act shall
have the same rights to contribution as such Underwriter and each
director of the Company, each Trustee of the Trust, each officer
of the Company and each Trustee of the Trust who signed the
Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 under the Act shall have
the same rights to contribution as the Offerors.
Section 10. Termination.
-----------
(a) The Representative shall have the right to
terminate this Agreement by giving the notice hereinafter
specified at any time at or prior to the Closing Time if (i)
trading in securities generally on the New York Stock
Exchange shall have been generally suspended or materially
limited, (ii) a general moratorium on commercial banking
activities in New York shall have been declared by either
federal or New York authorities, (iii) there is the outbreak
of major hostilities or the major escalation of existing
hostilities so as to result in major hostilities, or the
declaration by the United States of a national emergency or
war, or other national or international calamity or crisis,
or (iv) there shall have occurred any downgrading in the
rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization" (as
that term is defined for purposes of Rule 436 under the Act)
or any such organization shall have publicly announced or
shall have informed the Company that it has placed any of
the Company's outstanding debt securities or preferred stock
on what is commonly termed a "watch list" for possible
downgrading; provided, however, that in the case of any
event described in clause (iii) or clause (iv) above, the
effect of such event, in the reasonable judgment of the
Underwriters, shall be to make it impracticable or
inadvisable to market and sell the Securities, or to enforce
contracts for the sale of the Securities, upon the terms
specified in the Prospectus.
(b) If the Representative elects to terminate this
Agreement as provided in this Section, the Company and each
Underwriter shall be notified promptly by the Representative
by telephone or telegram, confirmed by letter.
Section 11. Substitution of Underwriters.
----------------------------
(a) If any Underwriter or Underwriters shall fail to
take up and pay for the number of Preferred Securities
agreed by such Underwriter or Underwriters to be purchased
hereunder upon tender of such Preferred Securities in
accordance with the terms hereof, and the aggregate number
of Preferred Securities which such defaulting Underwriter or
Underwriters so fail to purchase does not exceed 10% of the
aggregate number of Preferred Securities agreed to be
purchased hereunder, the Representative shall have the right
to postpone the time for delivery of the Preferred
Securities as hereinafter provided but the remaining
Underwriters shall be obligated severally and not jointly,
in proportion to their respective purchase obligations
hereunder or in such proportions as may be agreed upon among
them, to take up and pay for, at the Closing Time, the
number of Preferred Securities which the defaulting
Underwriters agreed but failed to purchase; or
(b) If the aggregate number of Preferred Securities
which such defaulting Underwriter or Underwriters so fail to
purchase exceeds 10% of the aggregate number of Preferred
Securities, this Agreement shall terminate without liability
on the part of any non-defaulting Underwriter.
(c) If it shall be arranged for the remaining
Underwriters or substituted purchasers to take up the
Preferred Securities of the defaulting Underwriter or
Underwriters as provided in Section 11(a) hereof, (i) the
Representative or the Offerors shall have the right to
postpone the Closing Time for a period of not more than
seven full business days from the date specified in Section
3 hereof 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 promptly to file any amendments to the
Registration Statement or supplements to the Prospectus
which may thereby be made necessary, and (ii) the respective
number of Preferred Securities to be purchased by the
remaining Underwriters or substituted purchasers shall be
taken as the basis of their respective purchase obligations
for all purposes of this Agreement.
(d) Nothing contained in this Section 11 or elsewhere
in this Agreement shall relieve any defaulting Underwriter
of its liability to the Offerors for damages occasioned by
its default hereunder.
(e) The term "Underwriter" as used in this Agreement
shall refer to and include any purchaser substituted under
this Section 11 with like effect as if such substituted
purchaser had originally been named in Schedule A annexed
hereto.
Section 12. Representations to Survive
--------------------------
Delivery.
--------
All representations and warranties contained herein or
in certificates delivered pursuant hereto and all covenants and
agreements herein not fully performed before delivery of the
Preferred Securities to the Underwriters shall remain operative
and in full force and effect regardless of any investigation made
by or on behalf of any Underwriter or any controlling person, or
by or on behalf of the Offerors, and shall survive delivery of
the Preferred Securities to the Underwriters.
Section 13. Notices.
-------
Except as provided herein, all communications hereunder
shall be in writing and shall be deemed to have been duly given
if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed
to the Representative at Xxxxxxx Xxxxx World Headquarters, North
Tower, World Financial Center, New York, New York 10281-1201,
Attention: Xxxxxxx Xxxxxxxxx, Senior Managing Director; notices
to the Trust or the Company shall be directed to them at The
Washington Water Power Company, 0000 Xxxx Xxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxx, 00000, Attention: Treasurer.
Section 14. Successors.
----------
This Agreement shall inure to the benefit of and be
binding upon the Underwriters, the Trust and the Company and
their respective successors. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters and the
Trust and the Company and their respective successors and the
controlling persons and officers, directors and trustees referred
to in Sections 8 and 9 any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision
herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive
benefit of the Underwriters, the Trust and the Company and their
respective successors, and said controlling persons and officers,
directors and trustees and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. The
term "successor" shall not include any purchaser of Securities
merely because of such purchase.
Section 15. Governing Law and Time.
----------------------
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Except as
otherwise set forth herein, specified times of day refer to New
York City time.
Section 16. Counterparts.
------------
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 respective
counterparts shall together constitute one and the same
instrument.
Section 17. Representative to Act for the Several
-------------------------------------
Underwriters.
------------
The Representative will act for the several
Underwriters in connection with this financing, and any action
under this Agreement taken by the Representative will be binding
upon all the Underwriters. The Repre-sentative represents that
it has been authorized to execute this Agreement by the several
Underwriters named in Schedule A hereto.
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to the
Trust a counterpart hereof, whereupon this instrument, along with
all counterparts, will become a binding agreement between the
Underwriters and the Trust and the Company in accordance with its
terms.
Very truly yours,
THE WASHINGTON WATER POWER COMPANY
By---------------------------------
Title:
WASHINGTON WATER POWER CAPITAL I
By---------------------------------
Title: Regular Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By--------------------------------------
Authorized Signatory
For itself and as Representative of the other
Underwriters named in Schedule A hereto.
SCHEDULE A
Number
Name of Underwriter of Securities
------------------- -------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated . . . . . . . . . . . .
Total . . . . . . . . . . . . . . . . .
SCHEDULE B
INFORMATION REGARDING THE
PREFERRED SECURITIES AND THE SALE THEREOF
-----------------------------------------
1. Title of Preferred Securities:
-----------------------------
2. Registration Statement Nos.: 333-______ and 333-______
----------------------------
3. Aggregate Number of Securities:
------------------------------
4. Stated Value of Securities: $25 per security or $_________
--------------------------
total
5. Price Per Security to be Paid to Company: $___, plus
----------------------------------------
accrued distributions, if any, from the date of issuance.
6. Initial Public Offering Price per Security:
------------------------------------------
7. Closing Time:
------------
8. Compensation Payable to Underwriters:
------------------------------------
EXHIBIT 1
FORM OF OPINION OF PAINE, HAMBLEN, XXXXXX, XXXXXX & XXXXXX LLP
________________, 199___
[Names and Addresses of Underwriters]
Dear Sirs:
This opinion is being delivered to you pursuant to Section
6(d) of the Underwriting Agreement, dated _________, 1996 (the
"Underwriting Agreement"), among you as Representative of the
Underwriters and The Washington Water Power Company, a Washington
corporation (the "Company"), and Washington Water Power Capital
I, a statutory business trust created under the Business Trust
Act of the State of Delaware (the "Trust"), relating to (i) the
issuance and sale by the Trust to the Underwriters of
$___________________ in aggregate liquidation amount of _____%
Trust Originated Preferred Securities (liquidation amount of $25
per Preferred Security) (the "Preferred Securities"), issued
pursuant to the Declaration and guaranteed pursuant to the
Preferred Securities Guarantee Agreement, dated as of __________,
by and between the Company, as guarantor, and Wilmington Trust
Company, as preferred guaranty trustee, and (ii) the related
issuance and sale by the Company to the Trust of $___________ in
aggregate principal amount of Junior Subordinated Deferrable
Interest Debentures, ____% Series due ____ (the "Subordinated
Debt Securities"), to be issued under an Indenture, dated as of
____________________, by and between the Company and Wilmington
Trust Company as trustee (the "Debt Trustee").
Capitalized terms used herein but not otherwise defined
herein shall have the meaning ascribed to them in the
Underwriting Agreement. The Declaration, the Indenture
(including the Officer's Certificate establishing the terms of
the Subordinated Debt Securities), the Subordinated Debt
Securities and the Guarantee Agreements are sometimes
collectively referred to herein as the "Company Documents".
In connection with rendering this opinion, we have examined,
or are generally familiar with, the following: (a) the Restated
Articles of Incorporation, as amended, and the Bylaws, as
amended, of the Company; (b) the Underwriting Agreement; (c) the
Company Documents; (d) the Preferred Securities; (e) the Common
Securities; (f) a Certificate of Existence/Authorization issued
by the Secretary of State of Washington, a Certificate of
Corporate Status issued by the Secretary of State of Idaho, a
Certificate of Authorization issued by the Secretary of State of
Montana, a Certificate of Authorization issued by the Secretary
of State of Oregon, and a Certificate of Status of Foreign
Corporation issued by the Secretary of State of California; (g)
the orders of the Washington Utilities and Transportation
Commission (the "WUTC"), the California Public Utilities
Commission (the "CPUC"), the Idaho Public Utilities Commission
(the "IPUC") and the Public Utility Commission of Oregon (the
"OPUC"); (h) the registration statement (File Nos. 33-____ and
33-____) (the "Registration Statement") filed by the Company and
the Trust with the Securities and Exchange Commission (the "SEC")
for the registration under the Securities Act of 1933, as amended
(the "Act"), of $150,000,000 in aggregate amount of the Trust's
and the Company's securities and for qualification under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act") of the Indenture, the Declaration and the Guarantee
Agreements, together with all exhibits thereto, which
Registration Statement, we are advised, became effective on
________________; (i) the final prospectus relating to the
Securities and the prospectus supplement dated _______________,
relating to the Securities and filed with the SEC pursuant to
Rule 424 under the Act (collectively, the "Prospectus"); (j) the
Incorporated Documents, which are incorporated by reference in
the Registration Statement and the Prospectus, consisting of the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995 (the "10-K"), the Company's Quarterly Reports
on Form 10-Q for the fiscal quarters ended March 31, 1996 and
June 30, 1996 and September 30, 1996 (the "10-Q's"), and the
June 28, 1996 Form 8-K (the "8-K")in each case, together with all
exhibits thereto; and (k) the records of various corporate and
other proceedings relating to the authorization of the
Underwriting Agreement and the Company Documents. We have also
examined such other documents and satisfied ourselves as to such
other matters as we have deemed necessary in order to render this
opinion.
As to various questions of fact (but not as to the legal
conclusions contained therein) material to the opinions set forth
below, in rendering such opinions we have relied, with your
permission, upon certificates of public officials, certificates
of officers or other employees of the Company, representations
contained in the Underwriting Agreement, the Company Documents
and related documents, and other oral or written assurances by
officers or other employees of the Company.
We are general counsel to the Company and the following
subsidiaries: WP Laboratories, Inc., WWP Energy Solutions, Inc.,
WWP Resource Services, Inc., WP International, Inc., Washington
Irrigation and Development Company, and WP Finance Co. In such
capacity, we represent the Company and such subsidiaries on
various matters referred to us by them, but not on all matters.
We do not serve as counsel to other direct or indirect
subsidiaries and affiliates of the Company (including the Trust)
and, as to various questions relating to the activities of such
subsidiaries and affiliates, we further have relied upon
certificates of officers thereof and assumed or otherwise based
this opinion upon legal conclusions set forth in opinions of
counsel thereto.
We have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us
as copies, and the due authorization, execution and delivery of
all documents by all parties thereto other than the Company.
As used in this opinion, the expression "to the best of our
knowledge" with reference to matters of fact means that, after an
examination of the documents made available to us by the Company
and after inquiries of officers or employees of the Company, we
find no reason to believe that the opinions expressed herein are
factually inaccurate; but beyond that, we have not made an
independent factual investigation for the purpose of rendering
this opinion.
Based upon the foregoing, and subject to the qualifications
set forth herein, we are of the opinion that:
(1)(a) The Company is a corporation duly incorporated,
validly existing and in good standing 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
adequate corporate powers 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 States as described in the
Registration Statement, the Prospectus and the Incorporated
Documents. The Company has adequate corporate powers to
execute and deliver, and perform its obligations under, the
Underwriting Agreement and the Company Documents.
(b) Each of the Company's following subsidiaries,
Xxxxxxx Corporation, WWP Energy Solutions, Inc., WWP
Resource Services, Inc., and Washington Irrigation &
Development Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the
State of Washington.
(2) The WUTC, CPUC, IPUC and OPUC have entered
appropriate orders authorizing the issuance and sale by the
Company of the Subordinated Debt Securities and the
Preferred Securities Guarantee on the terms set forth or
contemplated in such orders; each of such orders, to the
best of our knowledge, remain in full force and effect on
the date of this opinion; and no further approval,
authorization, consent or other order of, or filing with,
any governmental agency of the States of Washington,
California, Idaho, Montana and Oregon is legally required
for the authorization of the issuance and sale by the
Company of the Subordinated Debt Securities or in order for
(A) the Company Documents to constitute valid and binding
obligations of the Company or (B) the Preferred Securities
and the Common Securities to be validly issued by the Trust.
(3) The Underwriting Agreement and the Company Documents
have been duly authorized, executed and delivered by the
Company.
(4) The execution, delivery and performance by the
Company of its obligations under the Underwriting Agreement
and the Company Documents, and the issuance and sale by the
Company of the Subordinated Debt Securities, will not (A)
breach or violate the Company's Restated Articles of
Incorporation, as amended, or Bylaws, as amended, or (B)
breach or violate, or constitute a default under, (i) any
order of any court or governmental agency of such States
having jurisdiction over the Company or any of its
properties which is material to Company or (ii) any
contract, indenture, mortgage, agreement or other instrument
for borrowed money to which the Company is a party or to
which any of its properties is subject and which is listed
as an Exhibit to the 10-K, except that we express no opinion
as to any such contract, indenture, mortgage, agreement or
other instrument which is addressed in the separate opinion
to you of Xxxx & Priest LLP.
(5) Except as described in the Registration Statement,
the Prospectus or the Incorporated Documents, to the best of
our knowledge, there are no legal or governmental
proceedings, either pending or overtly threatened in
writing, which arise out of the operations of the Company in
the States of Washington, California, Idaho, Montana or
Oregon to which the Company is a party or to which the
Company or any of its properties are subject and which are
material to the Company, other than ordinary, routine legal
or governmental proceedings incidental to the kind of
business conducted by the Company.
(6) The descriptions of legal or governmental
proceedings contained in Item 1 (Note 2) of the 10-Q's and
in Item 14 (Note 14) of the 10-K are fair and accurate
descriptions thereof in all material respects.
As noted above, we are general counsel to the Company and
certain of its subsidiaries and we represent them on various, but
not all, matters. Our involvement in the preparation of the
Registration Statement, the Prospectus and the Incorporated
Documents was limited to generally reviewing drafts thereof
prepared by the Company or other counsel to the Company and to
participating in the conferences referred to below. However, we
have not been engaged to make the ultimate determination of
materiality for purposes of, or to determine the wording and
degree of disclosure contained in, the Registration Statement,
the Prospectus or the Incorporated Documents; we have not been
engaged to advise the Company with respect to compliance with
securities laws; and we have not otherwise acted as securities
law counsel to the Company.
Accordingly, in such capacity during the course of the
preparation by the Company of the Registration Statement, the
Prospectus and the Incorporated Documents, we have participated
in conferences with certain officers and other employees of the
Company, with other counsel for the Company, with you and your
counsel, and with Deloitte & Touche LLP, the independent
certified public accountants who examined the financial
statements included in the Registration Statement, the Prospectus
and the Incorporated Documents, but we have made no independent
verification of the accuracy or completeness of the
representations and statements made to us by the Company or the
information included by the Company in the Registration
Statement, the Prospectus or the Incorporated Documents, and we
take no responsibility therefor, except insofar as such
information relates to us.
The nature and extent of our engagement by the Company and
our participation in the above-mentioned conferences, as
described above, would not necessarily be adequate to bring to
our attention all matters which could be deemed material or to
enable us to make a valid assessment of the materiality of such
matters as were brought to our attention or of the wording and
degree of disclosure contained in the Registration Statement, the
Prospectus or the Incorporated Documents.
However, during the course of our examination of the
Registration Statement, the Prospectus and the Incorporated
Documents and our participation in the above-mentioned
conferences, nothing came to our attention which gives us reason
to believe that, when the Registration Statement became
effective, the Registration Statement, the Prospectus and the
Incorporated Documents contained an untrue statement of a
material fact or omitted to state a material fact necessary to
make the statements therein not misleading, or that, as of the
date of this opinion, the Prospectus, as then amended or
supplemented, and the Incorporated Documents contains an untrue
statement of a material fact 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;
provided, however, that we do not express any belief as to any
financial statements or other financial or statistical
information, data or computations contained in the Registration
Statement, the Prospectus or the Incorporated Documents, as to
any statements contained in the Statements of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act with
respect to the Debt Trustee, the Institutional Trustee and the
Guaranty Trustee, or as to any portions of the Registration
Statement or the Prospectus other than the sections entitled "The
Washington Water Power Company" and "Use of Proceeds" and Part II
of the Registration Statement.
The opinions expressed above are limited to the laws of the
States of Washington, California, Idaho, Montana and Oregon
(excluding therefrom principles of conflicts of laws, state
securities or blue sky laws, and laws of political subdivisions
of such States). This opinion is limited to the opinions and
confirmations expressed above, and no additional opinions or
confirmations are to be implied or inferred. Without limiting
the generality of the foregoing, it is specifically understood
that we express no opinion or confirmation as to (i) whether the
Underwriting Agreement, the Company Documents or related
documents constitute legal, valid and binding obligations,
enforceable in accordance with their terms, (ii) whether the
Preferred Securities or the Common Securities have been validly
issued, or (iii) the tax treatment or other description of the
Securities, the Subordinated Securities or related documents
contained in the Registration Statement and Prospectus.
This opinion is being delivered as of this date solely in
connection with the issuance and sale of the Preferred Securities
and the related issuance and sale of the Subordinated Debt
Securities for the benefit of the addressees hereof. Wilmington
Trust Company, as Debt Trustee under the Indenture, is hereby
also authorized to rely upon this opinion in connection therewith
as if it were addressed to it. Xxxxxxxx & Xxxxxxxx, Xxxx &
Priest LLP and Xxxxxxxx, Xxxxxx & Finger are hereby also
authorized to rely upon this opinion in connection therewith as
if it were addressed to them. This opinion is not being
delivered, nor may it be relied upon, for any other purpose; this
opinion is not being delivered for the benefit of, nor may it be
relied upon by, the holders of the Securities or the Subordinated
Securities or any other party to which it is not specifically
addressed or to which reliance is not expressly permitted hereby;
and this opinion is not to be used, delivered, circulated, quoted
or otherwise referred to except as expressly permitted hereby.
This opinion is given as of the date hereof, without any
obligation upon us to update this opinion or to advise the
addressees hereof or any other party of any changes in
circumstances or laws that may hereafter be brought to our
attention or occur which may affect this opinion.
Very truly yours,
PAINE, HAMBLEN, XXXXXX,
XXXXXX & XXXXXX LLP
EXHIBIT 2
FORM OF OPINION OF XXXX & PRIEST LLP
__________, 199_
[Names and Addresses of Underwriters]
Dear Sirs:
This opinion is being delivered to you pursuant to
Section 6(d) of the Underwriting Agreement, dated __________,
1996 (the "Underwriting Agreement"), among you as Representative
of the Underwriters and The Washington Water Power Company, a
Washington corporation (the "Company"), and Washington Water
Power Capital I, a statutory business trust created under the
Business Trust Act of the State of Delaware (the "Trust"),
relating to (i) the issuance and sale by the Trust to you of
$____________ in aggregate liquidation amount, __% Trust
Originated Preferred Securities (liquidation amount of $25 per
Preferred Security) (the "Preferred Securities"), guaranteed
pursuant to the Preferred Securities Guarantee Agreement, dated
as of _________, by and between the Company, as guarantor, and
Wilmington Trust Company, as preferred guaranty trustee, and (ii)
the issuance and sale by the Company to the Trust of $__________
in aggregate principal amount of Junior Subordinated Deferrable
Interest Debentures, ___% Series due _____________ (the
"Subordinated Debt Securities"), to be issued under an Indenture,
dated as of _________, by and between the Company and Wilmington
Trust Company, as trustee (the "Debt Trustee").
Capitalized terms used herein but not otherwise defined
herein shall have the meaning ascribed to them in the
Underwriting Agreement. The Declaration, the Indenture
(including the Officer's Certificate establishing the terms of
the Subordinated Debt Securities), the Subordinated Debt
Securities and the Guarantee Agreements are sometimes
collectively referred to herein as the "Company Documents".
In connection with rendering this opinion, we have
examined, or are generally familiar with, the following: (a) the
Restated Articles of Incorporation, as amended, and the Bylaws,
as amended, of the Company; (b) the Underwriting Agreement; (c)
the Company Documents; (d) the Preferred Securities; (e) the
Common Securities; (f) the Registration Statement for the
registration under the Securities Act of 1933, as amended (the
"Act"), of $150,000,000 in aggregate amount of the Trust's and
the Company's securities and for qualification under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), of
the Indenture, the Declaration and the Guarantees, which
registration statement became effective on __________; (g) the
Prospectus filed with the SEC pursuant to Rule 424 under the Act
; and (h) the records of various corporate and other proceedings
relating to the authorization of the Company Documents. We have
also examined such other documents and satisfied ourselves as to
such other matters as we have deemed necessary in order to render
this opinion. We have not examined the certificates evidencing
the Preferred Securities, except a specimen thereof.
As to various questions of fact (but not as to the
legal conclusions contained therein) material to the opinions set
forth below, in rendering such opinions we have relied, with your
permission, upon certificates of public officials, certificates
of officers or other employees of the Company, representations of
the Company and the Trust in the Underwriting Agreement, and
other oral or written assurances by officers or other employees
of the Company. We do not serve as counsel to direct or indirect
subsidiaries or affiliates of the Company, and, as to various
questions relating to the activities of such subsidiaries and
affiliates, we have further relied upon certificates of officers
thereof and opinions of counsel thereto.
We have assumed, consistent with the opinion of even
date herewith rendered to you by Paine, Hamblen, Xxxxxx, Xxxxxx &
Xxxxxx LLP, that the Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the State
of Washington and 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 adequate corporate
powers to execute and deliver the Underwriting Agreement and the
Company Documents; that the Underwriting Agreement and the
Company Documents have been duly authorized, executed and
delivered by the Company; and that all approvals, authorizations,
consents, other orders or filings required under the laws of the
States of Washington, California, Idaho, Montana and Oregon in
order for the Company Documents to constitute valid and binding
obligations of the Company have been obtained. We have further
assumed, consistent with the opinion of even date herewith
rendered to you by Xxxxxxxx, Xxxxxx & Finger, that the Trust has
been duly created and is validly existing in good standing as a
business trust under the Delaware Act, with trust power and
authority for the execution, delivery and performance of its
obligations under the Underwriting Agreement and the issuance and
performance of its obligations under the Preferred Securities and
the Common Securities; that the execution, delivery and
performance of the of the Underwriting Agreement have been duly
authorized by the Trust; that the Preferred Securities and the
Common Securities have been duly authorized by the Declaration,
and are duly and validly issued and, subject to the
qualifications set forth in said opinion, are fully paid and
nonassessable undivided beneficial interests in the Trust and are
entitled to the benefits of the Declaration; and that no
authorization, approval, consent or order of any Delaware court
or Delaware governmental authority or agency is required in
connection with the issuance and sale by the Trust of the
Preferred Securities or the Common Securities.
Based upon the foregoing, and subject to the
qualifications set forth herein, we are of the opinion that:
[1] the Indenture has been duly qualified under the
Trust Indenture Act and constitutes a valid and legally
binding instrument, enforceable against the Company in
accordance with its terms, except to the extent the
enforcement of the Indenture may be limited by any
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other laws affecting
creditors' rights generally, by general principles of equity
(whether asserted in an action in equity or at law) and by
rules of law governing specific performance, injunctive
relief, foreclosure, receivership and other equitable
remedies; and the Indenture conforms in all material
respects to the description thereof contained in the
Prospectus;
[2] the Subordinated Debt Securities, when duly
authenticated and delivered by the Debt Trustee in
accordance with the Indenture and issued, delivered and paid
for pursuant to the Declaration, will be duly executed,
authenticated, issued and delivered and constitute valid and
legally binding obligations of the Company, in the form
contemplated by and entitled to the benefits provided by the
Indenture, and enforceable in accordance with their terms,
except to the extent the enforcement of the Subordinated
Debt Securities may be limited by any applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization,
moratorium or other laws affecting creditors' rights
generally, by general principles of equity (whether asserted
in an action in equity or at law) and by rules of law
governing specific performance, injunctive relief,
foreclosure, receivership and other equitable remedies; and
the Subordinated Debt Securities conform in all material
respects to the description thereof contained in the
Prospectus;
[3] the Declaration has been duly qualified under the
Trust Indenture Act, and the Declaration conforms in all
material respects to the description thereof in the
Prospectus;
[4] the Preferred Securities and the Common Securities
conform in all material respects to the descriptions thereof
in the Prospectus;
[5] each of the Guarantee Agreements, assuming in the
case of the Preferred Securities Guarantee Agreement due
authorization, execution and delivery of the Preferred
Securities Guarantee by the Guarantee Trustee, constitute
valid and legally binding instruments, enforceable against
the Company in accordance with its terms, except to the
extent enforcement of the Guarantee Agreements may be
limited by any applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other laws
affecting creditors' rights generally, by general principles
of equity (whether asserted in an action in equity or at
law) and by rules of law governing specific performance,
injunctive relief, foreclosure, receivership and other
equitable remedies; each of the Guarantees and the Guarantee
Agreements conform in all material respects to the
descriptions thereof contained in the Prospectus; and the
Preferred Securities Guarantee has been duly qualified under
the Trust Indenture Act;
[6] the execution, delivery and performance by the
Company of its obligations under the Underwriting Agreement
and the Company Documents and the consummation of the
transactions contemplated therein and compliance by the
Company with its obligations thereunder will not (A)
conflict with the Company's Restated Articles of
Incorporation, as amended, or Bylaws, as amended, or (B)
result in the breach or violation of any terms or provisions
of, or constitute a default under, (i) the Company's
Mortgage and Deed of Trust dated as of June 1, 1939, to
Citibank, N.A., as trustee, (ii) the Indenture, dated as of
July 1, 1988, of the Company to Chemical Bank, (iii) the
Lease Agreement, dated as of December 15, 1986, between the
Company and IRE-4 of New York, Inc. and all agreements of
the Company associated therewith, (iv) the Loan Agreement,
dated as of October 1, 1989, between the Company and the
City of Forsyth, Rosebud County, Montana, and all agreements
of the Company associated therewith, (v) the Trust Company
Agreement, dated as of November 21, 1990, between the
Company and Bankers Trust Company, and all agreements of the
Company associated therewith or (vi) the Agreement for Lease
and the Lease Agreement, each dated as of February 26, 1993,
between the Company and WP Funding, Limited Partnership, and
all agreements of the Company associated therewith;
[7] no approval, authorization, consent or other order
of, or filing with, any governmental agency of the State of
New York or of the United States of America is required
under the respective laws of such jurisdictions in order for
(A) the Company Documents to constitute valid and binding
obligations of the Company and (B) the Preferred Securities
and the Common Securities to constitute valid and binding
obligations of the Trust;
[8] None of the Offerors is and, after giving effect
to the offering and sale of the Preferred Securities, will
be, an "investment company" or an entity "controlled" by an
"investment company," as such terms are defined in the
Investment Company Act of 1940, as amended;
[9] the Registration Statement and Prospectus (except
the financial statements and other financial and statistical
data contained therein and any information furnished to the
Company by the Underwriters expressly for use therein, upon
which we do not pass) comply as to form in all material
respects with the applicable requirements of the Act and the
Trust Indenture Act and the applicable instructions, rules
and regulations promulgated thereunder; the Registration
Statement has become effective under the Act and, to the
best of our knowledge, no proceedings for a stop order with
respect thereto are pending or threatened under Section 8(d)
of the Act; and
[10] the statements made in the Prospectus under the
caption "Certain United States Federal Income Tax
Considerations" constitute a fair and accurate summary of
the matters addressed therein, based upon current law and
the assumptions stated or referred to therein; and the
statements made in the Prospectus under the caption "Effect
of Obligations under the Subordinated Debt Securities and
the Guarantee" fairly present the information purported to
be given.
We have acted as counsel to the Company primarily with
respect to general compliance with the federal securities laws
and specific financing and other corporate transactions. Our
engagement regarding such compliance was limited to advising the
Company as to the requirements of such laws and the rules and
regulations of the SEC thereunder, assisting the Company in the
assessment of the materiality of particular matters brought to
our attention and generally reviewing, with a view toward such
compliance, drafts prepared by the Company of the documents
incorporated by reference into the Registration Statement and the
Prospectus. We have not acted as general counsel to the Company
and have not, except for specific purposes, attended meetings of
the Board of Directors of the Company, or committees thereof, or
of officers of the Company; nor have we otherwise been in a
position to become aware of matters not specifically brought to
our attention by officers or other employees of, or other counsel
to, the Company.
Accordingly, in the course of the preparation by the
Company of the Registration Statement and the Prospectus, we
participated in conferences with certain officers and other
employees of the Company, with other counsel for the Company,
with you and your counsel, and with Deloitte & Touche LLP, the
independent certified public accountants who examined the
financial statements included in the Registration Statement and
the Prospectus, but we made no independent verification of the
accuracy or completeness of the representations and statements
made to us by the Company or the information included by the
Company in the Registration Statement or the Prospectus, and we
take no responsibility therefor, except insofar as such
information relates to us and as set forth in paragraphs (1)
through (5) and (10) above.
The nature and extent of our engagement by the Company
and our participation in the preparation of the Registration
Statement and the Prospectus, as described above, would not
necessarily be adequate to bring to our attention all matters
which could be deemed material or to enable us to make a valid
assessment of the materiality of such matters as were brought to
our attention.
However, during the course of our examination of the
Registration Statement and the Prospectus, and our participation
in the above-mentioned conferences, nothing came to our attention
which gives us reason to believe that (A) when the Registration
Statement became effective, the Registration Statement 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, as of the date of
this opinion, the Prospectus, as then amended or supplemented,
contains an untrue statement of a material fact 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; provided, however, that we do not express
any belief as to any financial statements or other financial or
statistical information, data or computations contained in the
Registration Statement or the Prospectus or as to any statements
contained in the Statements of Eligibility and Qualification
(Form T-1) under the Trust Indenture Act with respect to the Debt
Trustee, the Institutional Trustee and the Guarantee Trustee; or
(B) there exist any material contracts which are required to be
filed as exhibits to the Registration Statement which have not
been so filed.
The opinions enumerated above are limited to the laws
of the State of New York and the federal law of the United States
of America (excluding therefrom principles of conflicts of laws
and state securities or blue sky laws). To the extent that such
opinions relate to or are dependent upon matters governed by the
laws of other States, they are based upon the assumptions set
forth above or otherwise upon the legal conclusions set forth in
the aforesaid opinions of Paine, Hamblen, Xxxxxx, Xxxxxx & Xxxxxx
LLP and Xxxxxxxx, Xxxxxx & Finger. For purposes of the opinion
expressed in Paragraph 6 above, we have assumed that any document
referred to therein which is not stated to be governed by the law
of the State of New York would be enforced as written.
Wilmington Trust Company, as Debt Trustee under the
Indenture, is hereby authorized to rely upon this opinion in
connection therewith as if it were addressed to it. This opinion
is not being delivered for the benefit of, nor may it be relied
upon by, the holders of the Securities or the Subordinated Debt
Securities or any other party to which it is not specifically
addressed or to which reliance is not expressly permitted hereby.
Very truly yours,
XXXX & PRIEST LLP
EXHIBIT 3
[FORM OF OPINION OF XXXXXXXX, XXXXXX & FINGER]
___________, 199__
[Names and Addresses of Underwriters]
Re: Washington Water Power Capital I
--------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for The
Washington Water Power Company, a Washington corporation ("WWP"),
and Washington Water Power Capital I, a Delaware business trust
(the "Trust"), in connection with the matters set forth herein.
At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set
forth, our examination of documents has been limited to the
examination of originals or copies of the following:
(a) The Certificate of Trust of the Trust, dated as of
November 4, 1996 (the "Certificate"), as filed in
the office of the Secretary of State of the State
of Delaware (the "Secretary of State") on November
4, 1996;
(b) The Declaration of Trust of the Trust, dated as of
November 4, 1996, between WWP, as Sponsor, and the
trustees of the Trust named therein;
(c) The Amended and Restated Declaration of Trust of
the Trust, dated as of --------------, 199--
(including Annex I and Exhibits A-1 and A-2
thereto) (the "Declaration"), among WWP, as
Sponsor, the trustees of the Trust named therein
(collectively, the "Trustees") and the holders,
from time to time, of undivided beneficial
interests in the assets of the Trust;
(d) The Underwriting Agreement, dated ------------,
199_ (the "Underwriting Agreement"), among the
Trust, WWP and ----------, as Representative of
the several underwriters named in Schedule A
thereto (the "Underwriters");
(e) The Prospectus, dated ------------, 199-- (the
"Prospectus"), and the Prospectus Supplement,
dated ---------, 199-- (the "Prospectus
Supplement"), relating to the ----% Trust
Originated Preferred Securities, Series A of the
Trust representing preferred undivided beneficial
interests in the assets of the Trust (each, a
"Preferred Security" and collectively, the
"Preferred Securities"); and
(f) A Certificate of Good Standing for the Trust,
dated -------------, 199-- obtained from the
Secretary of State.
Initially capitalized terms used herein and not
otherwise defined are used as defined in the Declaration.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a)
through (f) above. In particular, we have not reviewed any
document (other than the documents listed in paragraphs (a)
through (f) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not
reviewed that is inconsistent with the opinions stated herein.
We have conducted no independent factual investigation of our own
but rather have relied solely upon the foregoing documents, the
statements and information set forth therein and the additional
matters recited or assumed herein, all of which we have assumed
to be true, complete and accurate in all material respects.
With respect to all documents examined by us, we have
assumed (i) the authenticity of all documents submitted to us as
authentic originals, (ii) the conformity with the originals of
all documents submitted to us as copies or forms, and (iii) the
genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that
the Declaration constitutes the entire agreement among the
parties thereto with respect to the subject matter thereof,
including with respect to the creation, operation and termination
of the Trust, and that the Declaration and the Certificate are in
full force and effect and have not been amended, (ii) except to
the extent provided in paragraph 1 below, the due creation, due
formation or due organization, as the case may be, and valid
existence in good standing of each party to the documents
examined by us under the laws of the jurisdiction governing its
creation, formation or organization, (iii) the legal capacity of
each natural person who is a party to the documents examined by
us, (iv) except to the extent provided in paragraph 4 below, that
each of the parties to the documents examined by us has the power
and authority to execute and deliver, and to perform its
obligations under, such documents, (v) except to the extent
provided in paragraph 5 below, that each of the parties to the
documents examined by us has duly authorized, executed and
delivered such documents, (vi) the receipt by each Person to whom
a Preferred Security is to be issued by the Trust (the "Preferred
Security Holders") of a Preferred Securities Certificate for such
Preferred Security and the payment for the Preferred Security
acquired by it, in accordance with the Declaration, and as
described in the Prospectus and the Prospectus Supplement, (vii)
that the Preferred Securities are issued and sold to the
Preferred Security Holders in accordance with the Declaration,
and as described in the Prospectus and the Prospectus Supplement,
(viii) the receipt by the Person (the "Common Security Holder")
to whom a --% Common Security of the Trust representing common
undivided beneficial interests in the assets of the Trust (each,
a "Common Security" and collectively, the "Common Securities")
(the Preferred Securities and the Common Securities being
hereinafter collectively referred to as the "Trust Securities")
is to be issued by the Trust of a Common Securities Certificate
for such Common Security and the payment for the Common Security
acquired by it, in accordance with the Declaration, and as
described in the Prospectus and the Prospectus Supplement, (ix)
that the Common Securities are issued and sold to the Common
Security Holder in accordance with the Declaration, and as
described in the Prospectus and the Prospectus Supplement, (x)
that the Trust derives no income from or connected with sources
within the State of Delaware and has no assets, activities (other
than having a Delaware trustee as required by the Delaware
Business Trust Act and the filing of documents with the Secretary
of State) or employees in the State of Delaware, and (xi) that
the Trust is treated as a grantor trust for federal income tax
purposes. We have not participated in the preparation of the
Prospectus or the Prospectus Supplement and assume no
responsibility for their contents.
This opinion is limited to the laws of the State of
Delaware (excluding the securities laws of the State of
Delaware), and we have not considered and express no opinion on
the laws of any other jurisdiction, including federal laws and
rules and regulations relating thereto. Our opinions are
rendered only with respect to Delaware laws and rules,
regulations and orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of
such questions of law and statutes of the State of Delaware as we
have considered necessary or appropriate, and subject to the
assumptions, qualifications, limitations and exceptions set forth
herein, we are of the opinion that:
1. The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware
Business Trust Act, and all filings required under the laws of
the State of Delaware with respect to the creation and valid
existence of the Trust as a business trust have been made.
2. Under the Delaware Business Trust Act and the
Declaration, the Trust has the trust power and authority to own
its property and conduct its business, all as described in the
Prospectus and the Prospectus Supplement.
3. The Declaration constitutes a valid and binding
obligation of WWP and the Trustees, and is enforceable against
WWP and the Trustees, in accordance with its terms.
4. Under the Delaware Business Trust Act and the
Declaration, the Trust has the trust power and authority (i) to
execute and deliver, and to perform its obligations under, the
Underwriting Agreement, and (ii) to issue and perform its
obligations under the Trust Securities.
5. Under the Delaware Business Trust Act and the
Declaration, the execution and delivery by the Trust of the
Underwriting Agreement, and the performance by the Trust of its
obligations thereunder, have been duly authorized by all
necessary trust action on the part of the Trust.
6. The Preferred Securities have been duly authorized
by the Declaration and are duly and validly issued and, subject
to the qualifications set forth herein, fully paid and
nonassessable undivided beneficial interests in the assets of the
Trust and are entitled to the benefits of the Declaration. The
Preferred Security Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of
Delaware. We note that the Preferred Security Holders may be
obligated, pursuant to the Declaration, (i) to provide indemnity
and/or security in connection with and pay taxes or governmental
charges arising from transfers or exchanges of Preferred
Securities Certificates and the issuance of replacement Preferred
Securities Certificates, and (ii) to provide security or
indemnity in connection with requests of or directions to the
Institutional Trustee to exercise its rights and powers under the
Declaration.
7. Under the Delaware Business Trust Act, the
certificate attached to the Declaration as Exhibit A-1 is an
appropriate form of certificate to evidence ownership of the
Preferred Securities.
8. The Common Securities have been duly authorized by
the Declaration and are duly and validly issued undivided
beneficial interests in the assets of the Trust.
9. Under the Delaware Business Trust Act and the
Declaration, the issuance of the Trust Securities is not subject
to preemptive rights.
10. The issuance and sale by the Trust of the Trust
Securities, the execution, delivery and performance by the Trust
of the Underwriting Agreement, the consummation by the Trust of
the transactions contemplated thereby and compliance by the Trust
with its obligations thereunder do not violate (i) any of the
provisions of the Certificate or the Declaration, or (ii) any
applicable Delaware law or administrative regulation.
11. No authorization, approval, consent or order of
any Delaware court or Delaware governmental authority or agency
is required to be obtained by the Trust solely in connection with
the issuance and sale of the Trust Securities.
12. Neither the issuance and sale by the Trust of the
Trust Securities, nor the performance by the Trust of the
Underwriting Agreement requires the filing with any court,
governmental authority or agency under the laws of the State of
Delaware, except for the filing of the Certificate which has been
duly effected.
13. The Preferred Security Holders (other than those
Preferred Security Holders who reside or are domiciled in the
State of Delaware) will have no liability for income taxes
imposed by the State of Delaware solely as a result of their
participation in the Trust, and the Trust will not be liable for
any income tax imposed by the State of Delaware.
The opinion expressed in paragraph 3 above is subject,
as to enforcement, to the effect upon the Declaration of (i)
bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation, fraudulent transfer and other similar laws relating
to or affecting the rights and remedies of creditors generally,
(ii) principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in
a proceeding in equity or at law), and (iii) the effect of
applicable public policy on the enforceability of provisions
relating to indemnification or contribution.
We consent to your relying as to matters of Delaware
law upon this opinion in connection with the Underwriting
Agreement. Except as stated above, without our prior written
consent, this opinion may not be furnished or quoted to, or
relied upon by, any other Person for any purpose.
Very truly yours,
EXHIBIT 4
[FORM OF OPINION OF XXXXXXXX, XXXXXX & FINGER]
-------------, 199--
[Names and Addresses of Underwriters]
Re: Washington Water Power Capital I
--------------------------------
Ladies and Gentlemen:
We have acted as counsel to Wilmington Trust Company, a
Delaware banking corporation ("Wilmington Trust"), in connection
with the transactions contemplated by (i) the Amended and
Restated Declaration of Trust, dated as of -------------, 199--
(the "Declaration"), among The Washington Water Power Company, a
Washington corporation ("WWP"), Wilmington Trust, as
Institutional Trustee and Delaware Trustee, the regular trustees
named therein and the holders, from time to time, of undivided
beneficial interests in the assets of Washington Water Power
Capital I, a Delaware business trust (the "Trust"), (ii) the
Indenture, dated as of ------------, 199-- (the "Indenture"),
between WWP and Wilmington Trust, as trustee, and (iii) the
Preferred Securities Guarantee Agreement, dated as of ----------,
199-- (the "Preferred Securities Guarantee"), between WWP and
Wilmington Trust, as trustee. This opinion is being furnished to
you pursuant to Section 6(f) of the Underwriting Agreement, dated
------------, 199-- (the "Underwriting Agreement"), among WWP,
the Trust and Xxxxxxx Xxxxx & Co., individually and as
Representative of the several Underwriters named in Schedule A to
the Underwriting Agreement. Capitalized terms used herein and
not otherwise defined are used as defined in the Declaration,
except that reference herein to any document shall mean such
document as in effect on the date hereof.
We have examined originals or copies of the
Declaration, the Preferred Securities Guarantee and the
Indenture. We have also examined originals or copies of such
other documents and such corporate records, certificates and
other statements of governmental officials and corporate officers
and other representatives of Wilmington Trust as we have deemed
necessary or appropriate for the purposes of this opinion.
Moreover, as to certain facts material to the opinions expressed
herein, we have relied upon the representations and warranties
contained in the documents referred to in this paragraph.
Based upon the foregoing and upon an examination of
such questions of law as we have considered necessary or
appropriate, and subject to the assumptions, exceptions and
qualifications set forth below, we advise you that, in our
opinion:
1. Wilmington Trust is duly incorporated and is
validly existing in good standing as a banking corporation with
trust powers under the laws of the State of Delaware.
2. Wilmington Trust has the power and authority to
execute, deliver and perform its obligations under the
Declaration, the Indenture and the Preferred Securities
Guarantee.
3. Each of the Declaration, the Indenture and the
Preferred Securities Guarantee has been duly authorized, executed
and delivered by Wilmington Trust and constitutes a legal, valid
and binding obligation of Wilmington Trust, enforceable against
Wilmington Trust in accordance with its terms.
4. The execution, delivery and performance by
Wilmington Trust of the Declaration, the Indenture and the
Preferred Securities Guarantee do not conflict with or constitute
a breach of the charter or by-laws of Wilmington Trust.
5. No consent, approval or authorization of, or
registration with or notice to, any governmental authority or
agency of the State of Delaware or the United States of America
governing the banking or trust powers of Wilmington Trust is
required for the execution, delivery or performance by Wilmington
Trust of the Declaration, the Indenture and the Preferred
Securities Guarantee.
The foregoing opinions are subject to the following
assumptions, exceptions and qualifications:
A. We are admitted to practice law in the State of
Delaware and we do not hold ourselves out as being experts on the
law of any other jurisdiction. The foregoing opinions are
limited to the laws of the State of Delaware and the federal laws
of the United States of America governing the banking and trust
powers of Wilmington Trust (except that we express no opinion
with respect to (i) state securities or blue sky laws and (ii)
federal securities laws, including, without limitation, the
Securities Act of 1933, as amended, the Securities Exchange Act
of 1934, as amended, the Trust Indenture Act of 1939, as amended,
and the Investment Company Act of 1940, as amended), and we have
not considered and express no opinion on the laws, rules and
regulations of any other jurisdiction. Insofar as the foregoing
opinions relate to the validity and enforceability of the
Indenture and the Preferred Securities Guarantee expressed to be
governed by the laws of the State of New York, we have assumed
that such document is legal, valid, binding and enforceable in
accordance with its terms under such laws (as to which we express
no opinion).
B. The foregoing opinions regarding enforceability
are subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium, receivership, fraudulent transfer and
similar laws relating to or affecting the rights and remedies of
creditors generally, (ii) principles of equity, including
applicable law relating to fiduciary duties (regardless of
whether considered and applied in a proceeding in equity or at
law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or
contribution.
C. We have assumed the due authorization, execution
and delivery by each of the parties thereto, other than
Wilmington Trust, of each of the Declaration, the Indenture and
the Preferred Securities Guarantee and that each of such parties
has the power and authority to execute, deliver and perform each
such document.
D. We have assumed that all signatures on documents
examined by us are genuine, that all documents submitted to us as
originals are authentic, and that all documents submitted to us
as copies or specimens conform with the originals, which facts we
have not independently verified.
E. We express no opinion as to the creation,
attachment, perfection or priority of any mortgage or security
interest or the nature or validity of title to any property.
F. We have not participated in the preparation of any
offering materials with respect to the Securities and we assume
no responsibility for their contents.
This opinion may be relied upon by you in connection
with the matters set forth herein. Except as stated above,
without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for
any purpose.
Very truly yours,
EXHIBIT 5
[CONTENTS OF LETTER OF DELOITTE & TOUCHE]
The letter of Deloitte & Touche will state in effect
that:
(1) They are independent certified public accountants
with respect to the Company and its subsidiaries within the
meaning of the Act and the Rules and Regulations.
(2) In their opinion, the financial statements audited
by them and incorporated by reference in the Prospectus comply as
to form in all material respects with the applicable accounting
requirements of the Act, the Exchange Act and the Rules and
Regulations.
(3) On the basis of procedures referred to in such
letter, including a reading of the latest available minutes of
the Board of Directors of the Company and a reading of the latest
available interim financial statements of the Company and
inquiries of officials of the Company responsible for financial
and accounting matters, nothing caused them to believe that:
(a) the unaudited income statement and balance sheet
amounts, if any, included in the Prospectus were not
determined on a basis substantially consistent with that of
the corresponding amounts in the audited financial
statements incorporated by reference in the Prospectus;
(b) the unaudited condensed financial statements
included in the Company's Quarterly Reports on Form 10-Q, if
any, incorporated by reference in the Prospectus do not
comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and
the related published rules and regulations thereunder
applicable to reports on Form 10-Q or are not in conformity
with generally accepted accounting principles on a basis
substantially consistent with that of the audited financial
statements incorporated by reference in the Prospectus;
(c) at the date of the latest available internal
balance sheet of the Company, there was any change in the
capital stock, notes payable or long-term debt or any
decrease in the net assets of the Company, or, at a
subsequent specified date not more than five days prior to
the date of such letter, there was a change in the capital
stock, notes payable or long-term debt of the Company, in
each case as compared with the amounts shown in the most
recent balance sheet of the Company incorporated by
reference in the Prospectus, except for (i) increases in
capital stock resulting from the issuance of shares pursuant
to employee benefit plans and the Company's Dividend
Reinvestment and Stock Purchase Plan, (ii) decrease in long-
term debt resulting from amortization of debt premium or
increases in long-term debt premium or increases in long-
term debt resulting from draw-downs of funds held in trust,
(iii) decreases in net assets resulting from the declaration
of dividends, (iv) changes or decreases which the Prospectus
discloses have occurred or may occur and (v) such other
changes or decreases as may be set forth in such letter; or
(d) at the date of the latest available internal
balance sheet of the Company, there was any decrease, as
compared with the most recent twelve-month period for which
operating revenues and net income are included or
incorporated by reference in the Prospectus, in such
amounts, except in all cases for changes or decreases which
the Prospectus discloses have occurred or may occur or as
may be set forth in set letter.
(4) In addition to their examination referred to in
their report in the Registration Statement and Prospectus and the
procedures referred to in (3) above, they have carried out
certain other specified procedures, not constituting an audit,
with respect to the dollar amounts, percentages and other
financial information, (in each case to the extent that such
dollar amounts, percentages and other financial information,
either directly or by analysis or computation, are derived from
the general accounting records of the Company) which appear (i)
in the Prospectus under the caption "The Washington Water Power
Company Selected Historical Financial Information" and (ii) in
the Company's annual report on Form 10-K for its most recent
fiscal year in Item 1, "Business", Item 6, "Selected Financial
Data" and Item 7 "Managements's Discussion and Analysis of
Financial Condition and Results of Operations" and have found
such dollar amounts, percentages and financial information to be
in agreement with the accounting records of the Company.
