Exhibit 1(a)
Securities
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WASHINGTON WATER POWER CAPITAL I
(a Delaware Trust)
% Securities,
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Series A
(Liquidation Amount of $ Per Security)
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UNDERWRITING AGREEMENT
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, 199
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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. Sections 3801 et seq.), and The Washington Water Power Company, a
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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 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 %
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Securities (liquidation amount of $___ per security) of the
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Trust ("Securities") set forth in said Schedule A. The Securities will be
guaranteed by the Company with respect to distributions and payments upon
liquidation, redemption and otherwise (the "Securities Guarantee") pursuant
to the Securities Guarantee Agreement (the "Securities Guarantee
Agreement"), dated as of , , between the Company and
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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 Securities. The Securities and the related Securities
Guarantee are referred to herein as the "Trust Securities".
The Offerors understand that the Underwriters propose to make a
public offering of the Trust Securities. The entire proceeds from the sale
of the Trust 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
Securities Guarantee, the "Guarantees") pursuant to the Common Securities
Guarantee Agreement (the "Common Securities Guarantee Agreement" and,
together with the Securities Guarantee Agreement, the "Guarantee
Agreements"), dated as of , , of the Company, and will be used
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by the Trust to purchase the $ of % Subordinated Debt
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Securities, Series A (the "Subordinated Debt Securities") issued by the
Company. The 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,
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and (the "Regular Trustees") and Wilmington Trust
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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
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Company and Wilmington Trust Company, as Trustee (the "Debt Trustee").
Section 1. Representations and Warranties of the Offerors.
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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
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registration of $150,000,000 in aggregate amount of a combination of
the Company's and the Trust's securities, including the Trust
Securities and the Subordinated Debt Securities, and such Registration
Statement has become effective. A prospectus supplement setting forth
the terms of the 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)
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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 Trust 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 Trust 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 Trust 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
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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
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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 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 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 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 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 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 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 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.
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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 Securities set forth in Schedule A opposite the name
of such Underwriter, plus any additional number of 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.
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Certificates for the 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 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 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 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 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.
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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 Trust 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
Trust 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
Securities (including the 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
Securities, any security convertible into or exchangeable into or
exercisable for Securities or Subordinated Debt Securities or any
other securities substantially similar to the Subordinated Debt
Securities or the Securities (except for the Subordinated Debt
Securities and the 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.
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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 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 Trust
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 Securities and the Subordinated Debt
Securities, (xi) the fees and expenses incurred in connection with the
listing of the 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
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 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 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
Securities, the Indenture, the 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 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 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
Securities and the Subordinated Debt Securities have Investment Grade
ratings.
(j) At the Closing Time, the 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 Trust
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
Securities, the 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 Trust
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 Trust 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 Trust 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 Trust 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 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 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 Trust
Securities, or to enforce contracts for the sale of the Trust
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 Securities agreed by such Underwriter or
Underwriters to be purchased hereunder upon tender of such Securities
in accordance with the terms hereof, and the aggregate number of
Securities which such defaulting Underwriter or Underwriters so fail
to purchase does not exceed 10% of the aggregate number of Securities
agreed to be purchased hereunder, the Representative shall have the
right to postpone the time for delivery of the 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
Securities which the defaulting Underwriters agreed but failed to
purchase; or
(b) If the aggregate number of Securities which such defaulting
Underwriter or Underwriters so fail to purchase exceeds 10% of the
aggregate number of 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 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
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 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 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 Trust
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
SECURITIES AND THE SALE THEREOF
-------------------------------
1. Title of Securities:
-------------------
2. Registration Statement Nos.: 333-______ and 333-______
----------------------------
3. Aggregate Number of Securities:
------------------------------
4. Stated Value of Securities: $___ 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 %
------------------- ----- ---------
Securities (liquidation amount of $ per Security) (the "Securities"),
---
issued pursuant to the Declaration and guaranteed pursuant to the
Securities Guarantee Agreement, dated as of , by and between the
----------
Company, as guarantor, and Wilmington Trust Company, as 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 A, 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 Securities;
(e) the Common Securities; (f) Certificates 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. 333- and 333- ) (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 Trust Securities
----------------
and the prospectus supplement dated , relating to such
---------------
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 the Company's December 1,
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. We have not examined the certificates evidencing the 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 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 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
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 (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 Securities or the Common Securities have been validly issued,
or (iii) the tax treatment or other description of the Trust 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 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 Trust 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, % Securities (liquidation
-- ---------
amount of $ per Security) (the "Securities"), guaranteed pursuant to the
---
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 A, Due (the "Subord-
-------------
inated 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 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 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 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
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
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 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 Securities Guarantee Agreement due authorization, execution and
delivery of the 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 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
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 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 (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 Trust
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 %
---- ---------
Securities, Series A of the Trust representing undivided
beneficial interests in the assets of the Trust (each, a
"Security" and collectively, the "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 Security is to be issued by the Trust (the "Security
Holders") of a Securities Certificate for such Security and the payment for
the Security acquired by it, in accordance with the Declaration, and as
described in the Prospectus and the Prospectus Supplement, (vii) that the
Securities are issued and sold to the 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 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 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 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 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 Securities Certificates and
the issuance of replacement 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 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 Security Holders (other than those 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 Securities Guarantee Agreement,
dated as of , 199 (the "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
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 Securities Guarantee.
3. Each of the Declaration, the Indenture and the 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 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
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 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 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 Trust 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.
