Exhibit 1
Northwest Natural Gas Company
$150,000,000
Medium-Term Notes, Series B
Distribution Agreement
____________, 2002
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
4 World Financial ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
UBS Warburg LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Banc One Capital Markets, Inc.
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Northwest Natural Gas Company, an Oregon corporation (the "Company"),
proposes to issue and sell from time-to-time not to exceed $150,000,000 of its
First Mortgage Bonds, designated Secured Medium-Term Notes, Series B (the
"Secured Notes"), and its Unsecured Medium-Term Notes, Series B (the "Unsecured
Notes", and, together with the Secured Notes, the "Securities"). The Secured
Notes will be issued under the Company's Mortgage and Deed of Trust, dated as of
July 1, 1946, to Deutsche Bank Trust Company Americas (formerly known as Bankers
Trust Company, the "Mortgage Trustee" or the "Trustee") and R.G. Page (▇▇▇▇▇▇▇
▇▇▇▇, successor), as trustees, as supplemented (such Mortgage and Deed of Trust
as supplemented being hereinafter referred to as the "Mortgage" or the
"Indenture"). The Unsecured Notes will be issued under an indenture, dated as of
June 1, 1991 (the "Note Indenture" or the "Indenture"), between the Company
Deutsche Bank Trust Company Americas, as trustee (the "Indenture Trustee" or the
"Trustee"). The Securities shall have the maturities, interest rates, if any,
redemption provisions and other terms set forth in the Prospectus referred to
below, as it may be amended or supplemented from time-to-time. The Securities
will be issued, and the terms thereof established, from time-to-time, by the
Company in accordance with the respective Indentures.
The Company represents, warrants, covenants and agrees with each of
you and with each other person which shall become a party to this agreement
(individually, an "Agent", and collectively, the "Agents") and each Agent,
severally and not jointly, covenants and agrees with the Company as follows:
1. Representations and Warranties of the Company. The Company
represents and warrants to each Agent that:
(a) The Company is a corporation duly organized and validly existing
in good standing under the laws of the State of Oregon, and is qualified to
do business and is in good standing as a foreign corporation in the State
of Washington, with power (corporate and other) to own its properties and
conduct its business as described in the Prospectus referred to below;
(b) A registration statement on Form S-3 (Registration No. 333-_____)
(the "Registration Statement"), in respect of $150,000,000 aggregate
principal amount of the Company's First Mortgage Bonds designated Secured
Medium-Term Notes Series B, and Unsecured Medium-Term Notes Series B has
been filed with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Act"), in the form
heretofore delivered or to be delivered (excluding the exhibits thereto but
including the documents incorporated by reference in the prospectus
included therein) to such Agent, and such Registration Statement in such
form has been declared effective by the Commission and no stop order
suspending its effectiveness has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (any preliminary
prospectus included in the Registration Statement being hereinafter called
a "Preliminary Prospectus"). The Registration Statement, including all
exhibits thereto but excluding Forms T-1 and T-2, as amended at the time it
became effective, is hereinafter called the "Registration Statement"; the
prospectus included as a part of the Registration Statement (including, if
applicable, any prospectus supplement) relating to the Securities, in the
form in which it most recently has been filed with the Commission on or
prior to the date of this Agreement, is hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents filed by
the Company under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated therein by reference as of the date of
such Preliminary Prospectus or Prospectus; any reference to any amendment
or supplement to any Preliminary Prospectus or Prospectus, including any
supplement to the Prospectus that sets forth only the terms of a particular
issue of the Securities (a "Pricing Supplement"), shall be deemed to refer
to and include the documents filed by the Company under the Exchange Act
and incorporated therein by reference as of the date of such amendment or
Pricing Supplement; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to and include the Prospectus as then
amended or supplemented (including the applicable Pricing Supplement) in
relation to a particular issue of Securities, in the form filed with the
Commission pursuant to Rule 424(b) under the Act, including any documents
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filed by the Company under the Exchange Act and incorporated therein by
reference as of the date of such amendment or supplement;
(c) The documents incorporated by reference in the Prospectus, when
filed with the Commission or, if later, when they became effective,
conformed in all material respects with the requirements of the Act or the
Exchange Act, as applicable, and the applicable rules and regulations of
the Commission thereunder; none of such documents when so filed or when
such documents became effective, as the case may be, 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; any
future documents so filed or incorporated by reference in the Prospectus,
or any amendment or supplement thereto, when filed with the Commission or,
if later, when effective, will conform in all material respects with the
applicable requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder, and when such
documents are filed or become effective, as the case may be, they will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representations or
warranties as to information contained in or omitted from the Prospectus as
amended or supplemented in reliance upon and in conformity with information
furnished in writing to the Company by any Agent specifically for use
therein;
(d) The Registration Statement when it became effective conformed,
and the Prospectus conforms, and any amendment or supplement thereto will
conform, in all material respects, with the provisions of the Act and the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and
the rules and regulations of the Commission thereunder; and the
Registration Statement when it became effective did not, the Prospectus
does not (and on each of the dates referred to in clause (i) of Section 6
will not) and any amendment or supplement to the Prospectus, as of its date
and on each of the dates referred to in clause (i) of Section 6, will not,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the Company makes no
representations or warranties as to information contained in or omitted
from any such document in reliance upon and in conformity with information
furnished in writing to the Company by any Agent specifically for use
therein;
(e) Except as set forth in or contemplated by the Prospectus, since
the date as of which information is given in the Prospectus (i) there has
not been any material adverse change in the condition of the Company and
its subsidiaries taken as a whole, financial or otherwise, (ii) there has
not been any transaction entered into by the Company or any of its
subsidiaries which is material to the Company and its subsidiaries taken as
a whole, other than transactions in the ordinary course of business, and
(iii) neither the Company nor any of its subsidiaries has incurred any
contingent obligation which is material to the Company and its subsidiaries
taken as a whole;
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(f) The Securities have been duly authorized, and, when issued
pursuant to their respective Indentures and delivered pursuant to this
Agreement and any Terms Agreement (as defined in Section 3 hereof), will
have been duly executed, authenticated, issued and delivered, will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, except as their enforceability
may be limited by laws and principles of equity relating to or affecting
generally the enforcement of creditors' rights, including without
limitation, bankruptcy and insolvency laws, and will be entitled to the
benefits provided by their respective Indentures (which will be
substantially in the form filed as exhibits to the Registration Statement);
the Indentures have been duly authorized and qualified under the Trust
Indenture Act, constitute valid and legally binding instruments,
enforceable in accordance with their terms, except as their enforceability
may be limited by laws and principles of equity relating to or affecting
generally the enforcement of creditors' rights, including without
limitation, bankruptcy and insolvency laws; and the Indentures conform, and
the Securities of each issue, when issued, will conform, in all material
respects, to the descriptions thereof in the Prospectus as amended or
supplemented with respect to such issue;
(g) The issue and sale of the Securities, the compliance by the
Company with all of the provisions of the Securities, the Indentures, this
Agreement and any Terms Agreement, and the consummation by the Company of
the transactions herein and therein contemplated will not result in a
breach or violation of any of the 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 is a party or by which
the Company is bound or to which any of the property of the Company is
subject, nor will such action result in any violation of the provisions of
any statute or the Restated Articles of Incorporation, as amended, or the
Bylaws, as amended, of the Company or any order, rule or regulation of any
court or any regulatory authority or other governmental agency or body
having jurisdiction over the Company or any of its properties; and no
consent, approval, authorization, order, registration or qualification of
or with any court or governmental agency or body is required for the
solicitation of offers to purchase Securities and the issue and sale of the
Securities or the consummation by the Company of the other transactions
contemplated by the Indentures, this Agreement or any Terms Agreement,
except such as have been obtained at or prior to the Commencement Date (as
defined in Section 4 hereof), will have been obtained under the Act, the
Trust Indenture Act and the public utility laws of the States of Oregon and
Washington and such as may be required under state securities or Blue Sky
laws in connection with the solicitation by such Agent of offers to
purchase Securities from the Company and with purchases of Securities by
such Agent as principal, as the case may be, in each case in the manner
contemplated hereby; and
(h) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending to which the Company is a
party or to which any property of the Company is subject, which, if
determined adversely to the Company, would individually or in the aggregate
have a material adverse effect on the consolidated financial position,
stockholders' equity or consolidated results of operations of the Company,
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and, to the best of the Company's knowledge, no such proceedings are
threatened.
2. Obligations of the Agents and the Company.
(a) Subject to the terms and conditions hereof and to the reservation
by the Company of the right to sell Securities directly on its own behalf,
the Company hereby (i) appoints each of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated, UBS Warburg LLC, Banc One Capital Markets, Inc. and
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc. as an agent of the Company for the purpose
of soliciting and receiving offers to purchase Securities from the Company
and (ii) reserves the right, from time to time, to appoint additional
agents for the purpose of soliciting and receiving offers to purchase
Securities from the Company; provided that each such additional agent shall
be required to become a party to this Agreement and undertake the
obligations of an Agent hereunder pursuant to an Additional Agent
Appointment Agreement ("Additional Agent Appointment Agreement")
substantially in the form of Exhibit 1 hereto.
(b) On the basis of the representations and warranties herein, and
subject to the terms and conditions hereof, each of the Agents, as agent of
the Company, severally and not jointly, agrees to use its reasonable best
efforts to solicit and receive offers to purchase particular issues of the
Securities from the Company upon the terms and conditions set forth in the
Prospectus as amended or supplemented with respect thereto. Each Agent will
promptly advise the Company by telephone or other appropriate means of all
reasonable offers to purchase Securities, other than those rejected by such
Agent. The Company shall not, without the consent of each Agent, which
consent shall not unreasonably be withheld, solicit or accept offers to
purchase, or sell, any debt securities with a maturity, at the time of
original issuance, of from nine months to 30 years, except (i) pursuant to
this Agreement, (ii) pursuant to a private placement not constituting a
public offering under the Act, or (iii) in connection with a firm
commitment underwriting pursuant to an underwriting agreement that does not
provide for a continuous offering. However, the Company, subject to Section
5(f) hereof, reserves the right to sell, and may solicit and accept offers
to purchase, Securities directly on its own behalf, and, in the case of any
such sale not resulting from a solicitation made by an Agent, no commission
will be payable with respect to such sale.
(c) Procedural details relating to the issue and delivery of
Securities, the solicitation of offers to purchase Securities and the
payment therefor, unless an Agent and the Company shall otherwise agree,
shall be as set forth in the Administrative Procedure attached hereto as
Annex I (the "Administrative Procedure"). The provisions of the
Administrative Procedure shall apply to all transactions contemplated
hereunder other than those made pursuant to a Terms Agreement. Each Agent
and the Company shall perform the respective duties and obligations
specifically provided to be performed by each of them in the Administrative
Procedure. The Company will furnish to the Trustees a copy of the
Administrative Procedure as from time to time in effect.
(d) The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend, at any time, for any period of time or
permanently, the solicitation of offers to purchase the Securities. As soon
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as practicable, but in any event not later than one business day after
receipt of notice from the Company, the Agents will suspend solicitation of
offers to purchase Securities from the Company until such time as the
Company has advised the Agents that such solicitation may be resumed.
(e) The Company agrees to pay each Agent a commission, at the time of
settlement (each a "Settlement Date") of any sale of a Security by the
Company as a result of a solicitation made by such Agent, in an amount
equal to the following applicable percentage of the principal amount of
such Security sold:
Commission
(percentage of aggregate principal
Range of Maturities amount of Securities sold)
------------------- --------------------------
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .675%
From 20 years to 30 years .750%
3. Sales to Agents as Principal. Each sale of Securities to an
Agent, as principal, shall be made in accordance with the terms of this
Agreement and (unless the Company and such Agent shall otherwise agree) a
separate agreement (each a "Terms Agreement"), which will provide for the sale
of such Securities to, and the purchase thereof by, such Agent, as principal. A
Terms Agreement may be either (i) a written agreement substantially in the form
of Annex II hereto, or (ii) an oral agreement between any Agent and the Company
confirmed in writing by such Agent. A Terms Agreement may also specify certain
provisions relating to the reoffering of such Securities by such Agent. Each
Terms Agreement shall specify the principal amount of Securities to be purchased
by an Agent pursuant thereto, the price to be paid to the Company for such
Securities, any provisions relating to the rights of, and defaults by, any
underwriters acting together with such Agent in the reoffering of the
Securities, the time and date of delivery of and payment for such Securities
(each, a "Time of Delivery") and place of delivery of such Securities, and any
requirements for opinions of counsel, accountants' letters and officers'
certificates pursuant to Section 5 hereof. Each purchase of Securities, unless
otherwise agreed shall be at a discount equivalent to the commission payable to
an Agent, acting as agent, with respect to a sale of Securities of identical
maturity, as set forth in Section 2(e) hereof). The Agent may engage the
services of any other broker or dealer in connection with the resale of the
Securities purchased as principal and may allow any portion of the discount
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received in connection with such purchase from the Company to be paid to such
brokers and dealers. The commitment of an Agent to purchase Securities as
principal, whether pursuant to a Terms Agreement or otherwise, shall be deemed
to have been made on the basis of the representations and warranties of the
Company herein contained and, to the extent not otherwise agreed upon in a Terms
Agreement or otherwise, shall be subject to the terms and conditions herein set
forth.
4. Commencement. At 11:00 a.m., New York City time, on the date of
this Agreement or at such later date and time as may be agreed upon between the
Agents and the Company not later than the day prior to the earlier of the day on
which the solicitation of offers to purchase Securities is to begin or on which
any Terms Agreement shall be executed (such time and date being referred to
herein as the "Commencement Date"), the Agents shall be furnished at the offices
of ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇:
(a) An opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Agents,
dated the Commencement Date, with respect to such matters as such Agents
may reasonably request, which opinion may rely, as to all matters governed
by Oregon law, upon the opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., General Counsel
for the Company, referred to in Section 4(b) hereof and, as to all matters
governed by Washington law, upon the opinion of Stoel Rives LLP referred to
in Section 4(d) hereof;
(b) An opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., dated the Commencement Date,
in form and substance reasonably satisfactory to such Agents, to the effect
set forth in Annex III, which opinion may rely, as to all matters governed
by New York law, upon the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP referred to
in Section 4(c) hereof and, as to certain matters governed by Washington
law, upon the opinion of Stoel Rives LLP referred to in Section 4(d)
hereof;
(c) An opinion of ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, dated the Commencement
Date, in form and substance reasonably satisfactory to such Agents, to the
effect set forth in Annex IV, which opinion may rely, as to all matters
governed by Oregon law, upon the opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., referred
to in Section 4(b) hereof and, as to all matters governed by Washington
law, upon the opinion of Stoel Rives LLP referred to in Section 4(d)
hereof;
(d) An opinion of Stoel Rives LLP, dated the Commencement Date, in
form and substance reasonably satisfactory to such Agents, to the effect
set forth in Annex V.
(e) A letter from PricewaterhouseCoopers LLP, the Company's
independent accountants, dated the Commencement Date, in form and substance
reasonably satisfactory to such Agents and subject to compliance with the
requirements of Statements on Auditing Standards issued by the American
Institute of Certified Public Accountants ("SAS"), to the effect set forth
in Annex VI hereto; and
(f) A certificate of the President or any Vice President of the
Company, dated the Commencement Date, in form reasonably satisfactory to
such Agents, (i) as to the accuracy of the representations and warranties
of the Company herein at and as of the Commencement Date, (ii) as to the
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performance by the Company in all material respects of all of its
obligations hereunder to be performed at or prior to the Commencement Date,
(iii) as to the matters set forth in Section 1(e) hereof, (iv) as to the
absence of any stop order of the Commission suspending the effectiveness of
the Registration Statement or any pending or contemplated proceedings for
such purpose, (v) as to the full force and effect of the authorizing orders
of the Oregon Public Utility Commission (the "OPUC") and the Washington
Utilities and Transportation Commission (the "WUTC") referred to in Section
7(a) hereof, and (vi) as to such other matters as such Agents may
reasonably request.
5. Covenants of the Company. The Company covenants and agrees with
each Agent:
(a) (i) To make no amendment or supplement to the Registration
Statement or the Prospectus (other than a Pricing Supplement) (A) prior to
the Commencement Date, which any Agent shall reasonably disapprove by
notice to the Company promptly after receipt of the proposed form thereof
or (B) after the date of any agreement by such Agent, pursuant to a Terms
Agreement or otherwise, to purchase Securities as principal and prior to
the related Time of Delivery which such Agent shall reasonably disapprove
by notice to the Company promptly after receipt of the proposed form
thereof; (ii) to prepare, with respect to each particular issue of
Securities to be sold through or to such Agent pursuant to this Agreement,
a Terms Agreement or otherwise, a Pricing Supplement with respect to such
Securities in a form reasonably satisfactory to such Agent and to file such
Pricing Supplement in accordance with Rule 424(b) under the Act; (iii) to
make no amendment or supplement to the Registration Statement or
Prospectus, other than a Pricing Supplement, without affording such Agent a
reasonable opportunity for review thereof and comment thereon; (iv) to
timely file all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery
of a prospectus is required in connection with the offering or sale of the
Securities, and during such same period to advise such Agent, promptly
after the Company receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or has become effective or any
supplement to the Prospectus or any amended Prospectus (other than any
Pricing Supplement that relates to Securities not purchased through or by
such Agent) has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending the
use of any prospectus relating to the Securities, of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amendment or supplement of the
Registration Statement or Prospectus or for additional information; (v) to
promptly make every reasonable effort to comply with all requests of the
Commission for additional information; and (vi) in the event of the
issuance of any such stop order or of any such order preventing or
suspending the use of any such prospectus or suspending any such
qualification, to use its best efforts to obtain its withdrawal;
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(b) From time-to-time, to take such action as such Agent reasonably
may request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as may be approved by the Company and
to comply with such laws so as to permit the continuance of sales and
dealings therein for as long as may be necessary to complete the
distribution or sale of the Securities; provided, however, that in
connection therewith the Company shall not 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 the Company to be unduly burdensome; provided, further, that the
provisions of this subsection (b) shall not apply so long as the Securities
are "covered securities" within the meaning of Section 18 of the Act and
any rules and regulations thereunder;
(c) To furnish such Agent with copies of the Registration Statement,
each amendment thereto, the Prospectus and each amendment or supplement
thereto, other than any Pricing Supplement (except as provided in the
Administrative Procedure), in the form in which it is filed with the
Commission pursuant to Rule 424(b) under the Act, and with copies of the
documents incorporated by reference therein (other than exhibits
incorporated by reference in the Registration Statement), each in such
quantities as such Agent may reasonably request from time-to-time; and, if
the delivery of a prospectus is required at any time in connection with the
offering or sale of the Securities to or through an Agent pursuant to this
Agreement 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, not misleading, or, if for any
other reason it shall be necessary during such period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Act, the Exchange Act or the Trust Indenture Act, to notify such Agent and
request such Agent, in its capacity as agent of the Company, to suspend
solicitation of offers to purchase Securities from the Company (and, if so
notified, such Agent shall cease such solicitations as soon as practicable,
but in any event not later than one business day later); and if the Company
shall decide to amend or supplement the Registration Statement or the
Prospectus, to so advise such Agent promptly by telephone (confirmed in
writing) and to prepare and cause to be filed promptly with the Commission
an amendment or supplement to the Registration Statement or the Prospectus
or to file any document incorporated by reference in the Prospectus that
will correct such statement or omission or effect such compliance; provided
that, (i) should such event relate solely to activities of any Agent
(except any termination of any Agent's services hereunder), such Agent
shall assume the expense of preparing and furnishing any such amendment or
supplement; (ii) if, during such period, such Agent shall continue to own
Securities purchased from the Company as principal or such Agent otherwise
shall be required to deliver a prospectus in respect of transactions in the
Securities, the Company shall promptly prepare and file with the Commission
such an amendment or supplement; and (iii) if such Agent shall be required
to deliver a prospectus in connection with sales of any Securities
purchased by it as principal at any time nine months or more after the date
of such purchase and (A) there shall be, as a result of such purchase, no
Securities remaining to be sold under the Registration Statement or (B) the
Company, pursuant to Section 2(d) hereof, shall have instructed the Agents,
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during such nine month period, to suspend permanently the solicitation of
offers to purchase the Securities, such Agent shall assume the expense of
preparing and furnishing any such amendment or supplement in connection
with the sales of any Securities purchased by such Agent as principal. (For
the purposes of this Section 5(c), the Company shall be entitled to assume
that a Prospectus shall no longer be required to be delivered under the Act
from and after the date six months from the date of the purchase by an
Agent as principal of the particular issuance of Securities to which it
relates, unless it shall have received notice from such Agent to the
contrary);
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after (i) the
effective date of the Registration Statement, (ii) the effective date of
each post-effective amendment to the Registration Statement, and (iii) the
date of each filing by the Company with the Commission of an Annual Report
on Form 10-K that is incorporated by reference in the Registration
Statement, an earning statement of the Company and its subsidiaries (which
need not be audited) in accordance with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) For the period ending five years from the date any Securities are
sold by the Company pursuant to an offer solicited by such Agent under this
Agreement, to furnish to such Agent copies of all reports or other
communications (financial or other) furnished to stockholders, and deliver
to such Agent (i) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, (ii) copies of all
registration statements filed under the Act (other than those in respect of
shareholder or employee plans), and (iii) such additional information
concerning the business and financial condition of the Company as such
Agent may from time to time reasonably request (such financial statements
to be on a consolidated basis to the extent the accounts of the Company and
its subsidiaries are consolidated in reports furnished to its stockholders
generally or to the Commission);
(f) That, from the date of any Terms Agreement or other agreement
with such Agent to purchase Securities as principal and to and including
the earlier of (i) the termination of the trading restrictions for the
Securities purchased thereunder, as notified to the Company by such Agent
and (ii) the related Time of Delivery, the Company, without the prior
written consent of such Agent, will not offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company in a public
offering which both have a maturity of from nine months to 30 years and are
substantially similar to the Securities;
(g) That each acceptance by the Company of an offer to purchase
Securities procured by such Agent, as agent, and each agreement by the
Company, pursuant to a Terms Agreement or otherwise, to sell Securities to
such Agent, as principal, shall be deemed to be an affirmation to such
Agent that the representations and warranties of the Company contained in
or made pursuant to this Agreement are true and correct as of the date of
10
such acceptance or agreement, as the case may be, as though made as of such
date, and an undertaking that such representations and warranties will be
true and correct as of the Settlement Date for the Securities relating to
such acceptance or as of the Time of Delivery relating to such sale, as the
case may be, as though made as of such date (except that such
representations and warranties shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented
relating to such Securities);
(h) That, reasonably in advance of (i) each date as of which an Agent
reasonably requests an opinion or opinions of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
counsel to the Agents, or other counsel to the Agents reasonably
satisfactory to the Company, or (ii) each time that the Company sells
Securities to such Agent as principal pursuant to a Terms Agreement or
other agreement and such Agent requests an opinion or opinions by ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Agents, or other counsel to the Agents
reasonably satisfactory to the Company, the Company shall furnish to such
counsel such papers and information as they may reasonably request to
enable them to furnish to such Agent a letter in form reasonably
satisfactory to such Agent, to the effect that such Agent may rely on the
opinion of such counsel referred to in Section 4(a) hereof, to the same
extent as though it was dated the date of such letter (except that the
statements in such opinion shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to the date of
such letter), or in lieu of such a letter, an opinion of the same tenor as
the opinion of such counsel referred to in Section 4(a) hereof, but
modified to relate to the Registration Statement and the Prospectus as
amended and supplemented to such date;
(i) That each time that (x) the Registration Statement or the
Prospectus shall be amended or supplemented (other than by a Pricing
Supplement or by an amendment or supplement providing solely for a change
in the interest rates of the Securities or similar changes and, unless the
Agents shall otherwise specify, other than by an amendment or supplement
which relates exclusively to an offering of debt securities other than the
Securities), (y) a document incorporated by reference in the Prospectus as
amended or supplemented (other than a Current Report on Form 8-K, unless
the Agents shall otherwise specify) shall be filed under the Act or
Exchange Act (unless waived by the Agents), or (z) the Company sells
Securities to such Agent, as principal, pursuant to a Terms Agreement or
other agreement and such Terms Agreement or other agreement specifies the
delivery of an opinion, letter or certificate under this Section 5(i) as a
condition to the purchase of Securities pursuant to such Terms Agreement or
other agreement, the Company shall furnish or cause to be furnished to such
Agent:
(i) a letter from ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., General Counsel for the
Company, or his successor, dated the date of such amendment,
supplement, incorporation or Time of Delivery relating to
such sale, as the case may be, in form reasonably
satisfactory to such Agent, to the effect that such Agent
may rely on the opinion of such counsel referred to in
Section 4(b) hereof to the same extent as though it were
dated the date of such letter (except that the statements in
such opinion shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to
11
the date of such letter, excluding, in the case of the
statements in the paragraph next following paragraph 14 of
such opinion, all documents filed by the Company under the
Exchange Act and incorporated by reference into the
Registration Statement and Prospectus during or prior to the
fiscal year which is the subject of the Company's most
recent Annual Report on Form 10-K) or, in lieu of such a
letter, an opinion of the same tenor as the opinion of such
counsel referred to in Section 4(b) hereof, but modified to
relate to the Registration Statement and the Prospectus as
so amended and supplemented to such date;
(ii) a letter of ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, New York, New York,
counsel for the Company, or other counsel for the Company
reasonably satisfactory to such Agent, dated the date of
such amendment, supplement, incorporation or Time of
Delivery relating to such sale, as the case may be, in form
reasonably satisfactory to such Agent, to the effect that
such Agent may rely on the opinion of such counsel referred
to in Section 4(c) hereof to the same extent as though it
were dated the date of such letter (except that the
statements in such opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended and
supplemented to the date of such letter, excluding, in the
case of the statements in the paragraph next following
paragraph 10 of such opinion, all documents filed by the
Company under the Exchange Act and incorporated by reference
into the Registration Statement and the Prospectus during or
prior to the fiscal year which is the subject of the
Company's most recent Annual Report on Form 10-K) or, in
lieu of such letter, an opinion of the same tenor as the
opinion of such counsel referred to in Section 4(c) hereof,
but modified to relate to the Registration Statement and the
Prospectus as so amended and supplemented to such date;
(iii) a letter of Stoel Rives LLP, Portland, Oregon, special
Washington counsel for the Company, or other special
Washington counsel for the Company reasonably satisfactory
to such Agent, dated the date of such amendment, supplement,
incorporation or Time of Delivery relating to such sale, as
the case may be, in form reasonably satisfactory to such
Agent, to the effect that such Agent may rely on the opinion
of such counsel referred to in Section 4(d) hereof to the
same extent as though it were dated the date of such letter
or, in lieu of such letter, an opinion of the same tenor as
the opinion of such counsel referred to in Section 4(d)
hereof; and
(iv) a certificate executed by the President or any Vice
President of the Company, dated the date of such supplement,
amendment, incorporation or Time of Delivery relating to
such sale, as the case may be, in such form as shall be
reasonably satisfactory to such Agent, to the effect that
the statements contained in the certificate referred to in
Section 4(f) hereof are true and correct at such date as
though made as of such date (except that such statements
shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to such date) or,
12
in lieu of such certificate, a certificate of the same tenor
as the certificate referred to in Section 4(f) hereof, but
modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date; and
(j) That each time that (x) the Registration Statement or the
Prospectus shall be amended or supplemented to include additional financial
information (unless waived by the Agents), or (y) the Company sells
Securities to such Agent as principal pursuant to a Terms Agreement or
other agreement and such Terms Agreement or other agreement specifies the
delivery of a letter under this Section 5(j) as a condition to the purchase
of Securities pursuant to such Terms Agreement or other agreement, and
subject to compliance with the requirements of SAS issued by the American
Institute of Certified Public Accountants, the Company shall furnish or
cause to be furnished to such Agent a letter of PricewaterhouseCoopers LLP
or other independent accountants for the Company reasonably satisfactory to
the Agent, dated the date of such amendment, supplement, incorporation or
Time of Delivery relating to such sale, as the case may be, in form
reasonably satisfactory to such Agent, to the effect that such Agent may
rely upon the letter of such accountants referred to in Section 4(e) hereof
to the same extent as though it were dated the date of such subsequent
letter (except the statements in such former letter shall be deemed to
relate to the financial statements included or incorporated in the
Registration Statement and Prospectus as amended and supplemented to the
date of such latter letter), or, in lieu of such latter letter, a letter of
the same tenor as the letter referred to in Section 4(e) hereof, but
modified to relate to the Registration Statement and the Prospectus as
amended or supplemented to the date of such letter, with such changes as
may be necessary to reflect changes in the financial statements and other
information derived from the accounting records of the Company, to the
extent such financial statements and other information are available as of
a date not more than five business days prior to the date of such letter;
(k) To offer to any person who has agreed to purchase Securities as
the result of an offer to purchase solicited by such Agent, as agent, the
right to refuse to purchase and pay for such Securities if, at the
Settlement Date for such Securities, any condition set forth in Section 6
hereof shall not have been satisfied (it being understood that the judgment
of such person with respect to the impracticability or inadvisability of
such purchase of Securities shall be substituted, for purposes of this
Section 5(k), for the judgment of such Agent with respect thereto); and
(l) To pay or cause to be paid the following: (i) the fees and
expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus, the Prospectus and any Pricing
Supplements and all other amendments and supplements thereto and the
mailing and delivering of copies thereof to such Agent; (ii) the fees and
expenses of counsel for the Agents in connection with the establishment of
the program contemplated hereby, any opinions to be rendered by such
counsel hereunder and the transactions contemplated hereunder; (iii) the
cost of preparing this Agreement, any Terms Agreement and any other
documents approved by the Company in connection with the offering,
13
purchase, sale and delivery of the Securities; (iv) the fees, not to exceed
$5,000, and expenses of counsel for the Agents in connection with the
qualification of the Securities for offering and sale under state
securities laws as provided in Section 5(b) hereof and the preparation of
any blue sky and legal investment memoranda; (v) any fees charged by
securities rating services for rating the Securities; (vi) any filing fees
incident to any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities; (vii) the cost of
preparing the Securities; (viii) the fees and expenses of the Trustees and
any agent of any Trustee and any transfer or paying agent of the Company
and the fees and disbursements of counsel for any Trustee or any such agent
in connection with any Indenture and the Securities; (ix) any advertising
expenses connected with the solicitation of offers to purchase and the sale
of Securities so long as such advertising expenses have been approved by
the Company; and (x) all other costs and expenses incident to the
performance of the Company's obligations hereunder which are not otherwise
specifically provided for in this Section; provided, however, that, except
as provided in Sections 8 and 9 hereof, such Agent shall pay all other
expenses it incurs, including any expenses that may be incurred by it or
for its account pursuant to the proviso of Section 5(c) hereof.
(m) To advise each Agent, promptly after the Company receives notice
thereof, of the downgrading, or the issuance of a notice of any intended or
potential downgrading, of the ratings of the Securities by either ▇▇▇▇▇'▇
Investors Service or Standard & Poor's Rating Group.
6. Conditions to Agents' Obligations. The obligation of an Agent, as
agent of the Company, at any time (each a "Solicitation Time"), to solicit
offers to purchase the Securities and the obligation of an Agent to purchase
Securities as principal, pursuant to a Terms Agreement or otherwise, shall be
subject, in such Agent's discretion, to the conditions that: (i) all of the
representations and warranties of the Company herein (and, in the case of an
obligation of an Agent under a Terms Agreement or other agreement with an Agent
to purchase Securities as principal, in or incorporated in such agreement by
reference) were true and correct (A) on the Commencement Date; (B) each time
that the Registration Statement or the Prospectus shall be amended or
supplemented, (C) each time a document incorporated by reference in the
Prospectus as amended or supplemented shall be filed by the Company under the
Act or Exchange Act, (D) at the date of each acceptance by the Company of an
offer to purchase Securities procured by such Agent, as agent, and each
agreement by the Company, pursuant to a Terms Agreement or otherwise, to sell
Securities to an Agent, as principal, (E) at each Settlement Date, and (F) at
each Time of Delivery of Securities so to be purchased by such Agent, as
principal, as the case may be, (ii) prior to such Solicitation Time or such Time
of Delivery, as the case may be, the Company shall have performed all of its
obligations hereunder theretofore to be performed, (iii) all requests for
additional information on the part of the Commission shall have been complied
with to the reasonable satisfaction of such Agent, (iv) there shall be in full
force and effect orders of the OPUC and the WUTC which permit the issuance and
sale of the Securities in accordance with the terms and conditions of this
Agreement, (v) no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall be
pending before, or to the knowledge of the Company contemplated by, the
Commission, and (vi) there shall not have occurred: (A) a suspension or material
limitation of trading in securities generally on the New York Stock Exchange or
in any securities of the Company on the New York Stock Exchange or any relevant
14
exchange or a material disruption in securities settlement or clearance services
in the United States; (B) a general moratorium on commercial banking activities
in New York declared by either Federal or New York State authorities; (C) any
material adverse change in the financial markets in the United States, any
outbreak of hostilities or escalation thereof or other calamity or crisis or
material adverse change in national financial or economic conditions, in each
case, the effect of which, in the reasonable judgment of such Agent, makes it
impracticable or inadvisable to proceed with the solicitation of offers to
purchase Securities or the purchase of Securities from the Company as principal
on the terms and in the manner contemplated by this Agreement and, if
applicable, any Terms Agreement or other agreement; or (D) unless known to such
Agent prior to such Solicitation Time, any downgrading, or any notice shall have
been given of any intended or potential downgrading, of the Securities by either
▇▇▇▇▇'▇ Investors Service or Standard & Poor's Rating Group. In addition to the
foregoing, the obligation of an Agent to purchase Securities as principal,
pursuant to a Terms Agreement or other agreement, shall be subject, in such
Agent's discretion, to the further condition that there shall not have been,
since the date of such Terms Agreement or other agreement or since the
respective dates as of which information is given in the Registration Statement,
any material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business.
7. Conditions to Company's Obligations.
(a) The obligation of the Company to sell and deliver any Security
pursuant hereto, to a Terms Agreement or otherwise shall be subject to the
condition that, after the acceptance by the Company of an offer to purchase
such Security procured by an Agent, as agent, or the agreement by the
Company, pursuant to a Terms Agreement or otherwise, to sell such Security
to an Agent, as principal, and prior to the Time of Delivery or the
Settlement Date, as the case may be, with respect to such purchase or sale,
neither the OPUC nor the WUTC shall have issued an order revoking its then
existing order permitting the issuance and sale of the Securities through
each Agent, as agent, on the terms set forth herein or to each Agent, as
principal, pursuant to a Terms Agreement or other agreement.
(b) If the condition specified in Section 7(a) hereof shall not have
been fulfilled, the obligation of the Company to sell Securities hereunder
or under a Terms Agreement or other agreement may be terminated by the
Company; and neither the Company nor any Agent shall have any liability to
the other, except for (i) the obligation of the Company to pay certain
expenses to the extent provided for in Section 5(l) hereof, (ii) the
obligation of the Company to pay commissions and hold the Agents harmless
as provided in Section 9 hereof (and, for purposes of said Section 9, such
a failure of such condition to be fulfilled shall be considered a default
by the Company on its obligation to deliver such Securities), and (iii) any
liability under Section 8 hereof.
8. Indemnification.
(a) The Company will indemnify and hold harmless each Agent against
any losses, claims, damages or liabilities, joint or several, to which such
Agent may become subject, under the Act or otherwise, insofar as such
15
losses, claims, damages or liabilities or actions in respect thereof arise
out of or are based upon an untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus or the Prospectus as amended or supplemented, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse such Agent for
any legal or other expenses reasonably incurred by it, as incurred, in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage or
liability or action in respect thereof arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement, any Preliminary Prospectus,
the Prospectus or the Prospectus as amended or supplemented in reliance
upon and in conformity with written information furnished to the Company by
such Agent specifically for use therein; and provided, further, that the
indemnity agreement contained in this Section 8(a) shall not inure to the
benefit of any Agent on account of any losses, claims, damages or
liabilities or actions in respect thereof arising from the sale of
Securities by or through such Agent pursuant to a Terms Agreement or
otherwise to any person if a copy of the Prospectus as then amended and
supplemented with respect to such Securities shall not have been sent or
given to such person with or prior to written confirmation of the sale
involved (assuming that the Company shall have previously furnished such
documents to such Agent in a timely fashion), and if the Prospectus (as so
amended or supplemented) would have cured the defect giving rise to such
losses, claims, damages or liabilities.
(b) Each Agent will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities or actions in respect thereof arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, any Preliminary Prospectus,
the Prospectus or the Prospectus as amended or supplemented, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Registration Statement, any
Preliminary Prospectus, the Prospectus or the Prospectus as amended or
supplemented in reliance upon and in conformity with written information
furnished to the Company by such Agent specifically for use therein, and
will reimburse the Company for any legal or other expenses incurred by the
Company, as incurred, in connection with investigating or defending any
such loss, claim, damage or liability or action. Each Agent hereby
furnishes to the Company in writing expressly for use in the Registration
Statement, any Preliminary Prospectus, the Prospectus and the Prospectus as
amended or supplemented (i) the first sentence in the fifth paragraph on
the cover page of the Prospectus relating to the offerings of Medium-Term
Notes by the Agents, as principal, and (ii) under "Plan of Distribution,"
the second and third paragraphs, the third and last sentences of the
seventh paragraph, the eighth, ninth, tenth and eleventh paragraphs and the
statements relating to the Agents in the twelfth paragraph.
16
(c) Promptly after receipt by an indemnified party under Section 8(a)
or Section 8(b) of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such Section, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may
have to any indemnified party otherwise than under such Section. In case
any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party); provided,
however, in no event shall such indemnifying parties be obligated to retain
more than one counsel (and necessary local counsel), in addition to counsel
for such indemnifying parties, to represent the indemnified parties, and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not
be liable to such indemnified party under such Section for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof
other than reasonable costs of investigation. Each indemnified party may
also participate at its own expense in the defense of any such action. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been
a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes (i) an unconditional release of such
indemnified party from all liability on claims that are the subject matter
of such proceeding and (ii) no statement as to or an admission of fault,
culpability or failure to act by or on behalf of an indemnified party.
(d) If the indemnification provided for in Section 8(a) or Section
8(b) hereof is unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, claims, damages or liabilities
(or actions in respect thereof) referred to therein, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect
any relevant equitable considerations including the relative fault of the
Company on the one hand and each Agent on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), and relative benefit of the
Company on the one hand and each Agent on the other. 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 Company on the one hand or by any Agent on the
other and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
relative benefits received by the Company on the one hand and each Agent on
the other shall be deemed to be in the same proportion as the total net
proceeds from the sale of Securities (before deducting expenses) received
17
by the Company bear to the total commissions or discounts received by such
Agent in respect thereof. The Company and each Agent agree that it would
not be just and equitable if contribution pursuant to this Section 8(d)
were determined (i) with respect only to any losses, claims, damages or
liabilities referred to in Section 8(a) hereof, by per capita allocation
(even if all Agents were treated as one entity for such purpose) or (ii) by
any method of allocation which does not take account of the equitable
considerations referred to above in this Section 8(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages
or liabilities (or actions in respect thereof) referred to above in this
Section 8(d) 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. 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 each of the Agents
under this Section 8(d) to contribute are several and are not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Agent within the meaning of the Act. The obligations of each
Agent under this Section 8 shall be in addition to any liability which such
Agent may otherwise have and shall extend, upon the same terms and
conditions, to each director of the Company, to each officer of the Company
who has signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
9. Nonperformance. Each Agent, in soliciting offers to purchase
Securities from the Company and in performing the other obligations of such
Agent hereunder (other than in respect of any purchase by an Agent as principal
pursuant to a Terms Agreement or otherwise), is acting solely as agent for the
Company and not as principal. Each Agent will make reasonable efforts to assist
the Company in obtaining performance by each purchaser whose offer to purchase
Securities from the Company was solicited by such Agent and has been accepted by
the Company, but such Agent shall not have any liability to the Company in the
event such purchase is not consummated for any reason. If the Company shall
default on its obligation to deliver Securities to a purchaser whose offer it
has accepted, the Company shall (i) hold each Agent harmless against any loss,
claim or damage arising from or as a result of such default by the Company and
(ii) notwithstanding such default, pay to the Agent that solicited such offer
any commission to which it would be entitled in connection with such sale.
10. Survival of Agreement. The respective indemnities, agreements,
representations, warranties and other statements by any Agent and the Company
set forth in or made pursuant to this Agreement shall remain in full force and
effect regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Agent or any controlling person of any
Agent or the Company, or any officer or director or any controlling person of
the Company, and shall survive each delivery of and payment for any of the
Securities.
11. Suspension or Termination. The provisions of this Agreement
relating to the solicitation of offers to purchase Securities from the Company
may be suspended or terminated at any time by the Company as to any Agent or by
18
any Agent as to such Agent upon the giving of written notice of such suspension
or termination to such Agent or the Company, as the case may be. In the event of
such suspension or termination with respect to any Agent, this Agreement shall
remain in full force and effect with respect to (i) any Agent as to which such
suspension or termination has not occurred, (ii) the rights and obligations of
any party which have previously accrued or which relate to Securities which are
already issued, agreed to be issued or the subject of a pending offer at the
time of such suspension or termination, (iii) Sections 2(e), 5(d), 5(e), 5(l),
8, 9 and 10 hereof, and (iv) the obligations of the Company to amend or
supplement the Prospectus, so long as any Agent continues to hold Securities as
principal.
12. Notices. Except as otherwise specifically provided herein or in
the Administrative Procedure, all statements, requests, notices and advices
hereunder shall be in writing or by telephone, if promptly confirmed in writing,
and if to ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, shall be
sufficient in all respects when delivered or sent by facsimile transmission or
registered mail to 4 World Financial Center, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attn: MTN Product Management, Facsimile Transmission No. ▇▇▇-▇▇▇-▇▇▇▇,
Telephone No. ▇▇▇-▇▇▇-▇▇▇▇, if to UBS Warburg LLC, shall be sufficient in all
respects when delivered or sent by facsimile transmission or registered mail to
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Facsimile Transmission No.
▇▇▇-▇▇▇-▇▇▇▇, Attn: ▇▇▇▇▇▇▇▇ Blue, Managing Director, Debt Capital Markets, if
to Banc One Capital Markets, Inc., shall be sufficient in all respects when
delivered or sent by facsimile transmission or registered mail to Mail Code
IL1-0363, ▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Facsimile Transmission No.
▇▇▇-▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. Vice President, Energy and
Utilities and if to U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc., shall be sufficient in all
respects when delivered or sent by facsimile transmission or registered mail to
▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, Facsimile Transmission
No. ▇▇▇-▇▇▇-▇▇▇▇, Attention: Fixed Income Capital Markets; if to the Company,
shall be sufficient in all respects when delivered or sent by facsimile
transmission or registered mail to One Pacific Square, ▇▇▇ ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Financial Officer, with a copy to the
General Counsel, Facsimile Transmission No. ▇▇▇-▇▇▇-▇▇▇▇, Telephone No.
▇▇▇-▇▇▇-▇▇▇▇; and if to any additional Agent, as set forth in the Additional
Agent Appointment Agreement relating to such Agent.
13. Benefit of Agreement. This Agreement, any Additional Agent
Appointment Agreement and any Terms Agreement shall be binding upon, and inure
solely to the benefit of, each Agent a party hereto and thereto and the Company,
and to the extent provided in Section 8 and Section 10 hereof, the officers and
directors of the Company and any person who controls any Agent or the Company,
and their respective personal representatives, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement, any Additional Agent Appointment Agreement or any Terms Agreement. No
purchaser of any of the Securities through or from any Agent hereunder shall be
deemed a successor or assign by reason of such purchase.
14. Timing. Time shall be of the essence in this Agreement, any
Additional Agent Appointment Agreement and any Terms Agreement. As used herein,
the term "business day" shall mean any day when banks in New York City are not
authorized or obligated by law or executive order to remain closed.
19
15. Governing Law. This Agreement, any Additional Agent Appointment
Agreement and any Terms Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
16. Descriptive Headings. The descriptive headings of the several
paragraphs of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
17. Execution in Counterparts. This Agreement, any Additional Agent
Appointment Agreement and any Terms Agreement may be executed by any one or more
of the parties hereto and thereto in any number of counterparts, each of which
shall be an original, but all of such respective counterparts shall together
constitute one and the same instrument.
20
If the foregoing is in accordance with your understanding, please sign
and return to us three counterparts hereof, whereupon this letter and the
acceptance by each of you hereof shall constitute a binding agreement between
the Company and each of you in accordance with its terms.
Very truly yours,
NORTHWEST NATURAL GAS COMPANY
By:
-------------------------------------------
Senior Vice President,
Finance, and Chief Financial
Officer
Accepted as of the date hereof:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By:
----------------------------------------
Title:
UBS WARBURG LLC
By:
----------------------------------------
Title:
By:
----------------------------------------
Title:
BANC ONE CAPITAL MARKETS, INC.
By:
----------------------------------------
Title:
U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ INC.
By:
----------------------------------------
Title:
21
ANNEX I
Northwest Natural Gas Company
Administrative Procedure
This Administrative Procedure relates to the Securities defined
in the Distribution Agreement, dated _____________, 2002 (the "Distribution
Agreement"), amongst Northwest Natural Gas Company (the "Company"), on the one
hand, and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, UBS Warburg LLC,
Banc One Capital Markets, Inc., U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc. and each other
person which shall become a party thereto (each, an "Agent" and, together, the
"Agents"), on the other. Defined terms used herein and not defined herein shall
have the meanings given such terms in the Distribution Agreement or the
Indentures. An Agent, in relation to a purchase of a Security by a purchaser
solicited by such Agent, is referred to herein as the "Selling Agent" and, in
relation to a purchase of a Security by such Agent as principal other than
pursuant to a Terms Agreement, as the "Purchasing Agent". As used herein, the
term "business day" shall mean any day when banks in New York City are not
authorized or obligated by law or executive order to remain closed.
The procedures to be followed with respect to the settlement of
sales of Securities directly by the Company to purchasers solicited by an Agent,
as agent, are set forth below. The terms and settlement details related to a
purchase of Securities by an Agent, as principal, from the Company will be set
forth in a Terms Agreement, pursuant to the Distribution Agreement, unless the
Company and such Agent otherwise shall agree.
The Company will advise each Agent in writing of those persons
with whom such Agent is to communicate regarding offers to purchase Securities
and the related settlement details.
[Order No. 02-586 dated August 28, 2002, of the Oregon Public
Utility Commission (the "OPUC") authorizes the issuance and sale of the
Securities, subject to the conditions set forth in such order. The order dated
__________, 2002 in Docket __-________ of the Washington Utilities and
Transportation Commission (the "WUTC") establishes compliance with applicable
statutory provisions with respect to the issuance and sale of the Securities. In
addition, such order of the OPUC authorizes, and such order of the WUTC
establishes compliance with applicable statutory provisions with respect to, the
issuance and sale by the Company (i) only of Securities bearing interest at
fixed rates, established within the maximum all-in spreads over Benchmark
Treasury Yields for various maturities (determined in accordance with said
orders as of the time the commitment to purchase any Securities is received by
the Company and the Agent) and (ii) of Securities to Agents, as principal, at
100% of the principal amount thereof less a percentage not to exceed the
commission applicable to an agency sale of Securities of the same maturity.]
As stated in the Company's Prospectus dated _________, 2002, if
the terms of any Security, as determined by the Company, provide that such
Security will be redeemable at the option of the Company, such Security will be
made redeemable in whole or in part.
Procedure for Rate Changes:
When a decision has been reached to change the interest rate on
or other variable terms with respect to any Securities being offered for sale,
the Company will promptly advise the Agents and the Agents will forthwith
suspend solicitation of offers to purchase such Securities. The Agent will
telephone the Company with recommendations as to the changed interest rates or
other variable terms. At such time as the Company advises the Agents of the new
interest rates or other variable terms, the Agent may resume solicitation of
offers to purchase such Securities. Until such time only "indications of
interest" may be recorded.
Acceptance or Rejection of Offers by Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Securities, other than
those rejected by such Agent. Each Agent, in its discretion reasonably
exercised, may reject any offer received by it, in whole or in part. Each Agent
also may make offers to the Company to purchase Securities as a Purchasing
Agent. The Company, in its sole discretion, may accept any offer to purchase
Securities and may reject any such offer, in whole or in part.
The Company will promptly notify the Selling Agent or Purchasing
Agent, as the case may be, of its acceptance or rejection of an offer to
purchase Securities. If the Company accepts an offer to purchase Securities, it
will confirm such acceptance in writing to the Selling Agent or Purchasing
Agent, as the case may be.
Settlement:
The receipt of immediately available funds by the Company in
payment for a Security and the authentication and delivery of such Security
will, with respect to such Security, constitute "Settlement."
All offers solicited by a Selling Agent or made by a Purchasing
Agent and accepted by the Company will be settled on a date (the "Settlement
Date") which shall be the third business day after the date of acceptance of
such offer, unless the Company and the purchaser shall agree to settle (a) on
any other business day after the acceptance of such offer or (b) with respect to
an offer accepted by the Company prior to 10:00 a.m., New York City time, on the
date of such acceptance.
Settlement Procedures:
A. After the acceptance of an offer by the Company, the Selling
Agent or Purchasing Agent, as the case may be, will communicate the following
details of the terms of such offer (the "Sale Information") to the Company by
telephone (confirmed in writing) or by facsimile transmission or other
acceptable written means:
(1) Principal amount of Securities to be purchased;
I-2
(2) Issue Price ("Issue Price" shall mean (i) in the case of a sale
in which an Agent shall act as a Selling Agent, the price to the
purchaser or (ii) in the case of a sale to an Agent as Purchasing
Agent, that Purchasing Agent's reoffering price);
(3) Selling Agent's commission or, if applicable, Purchasing Agent's
discount (spread between the reoffering price and Purchasing
Agent's purchase price);
(4) Net proceeds to the Company: (2) minus (3);
(5) Method of and specified funds for payment of purchase price:
(6) (a) Fixed Rate Securities:
(i) interest rate
(ii) interest payment dates
(iii) regular record dates;
(b) Floating Rate Securities:
(i) interest rate basis
(ii) initial interest rate
(iii) spread or spread multiplier, if any
(iv) interest rate reset dates
(v) interest rate reset period
(vi) interest payment dates
(vii) initial interest payment date
(viii) interest payment period
(ix) regular record dates
(x) index maturity
(xi) calculation agent
(xii) maximum and minimum interest rates, if any
(xiii) calculation date
(xiv) interest determination dates;
(7) (a) Trade Date;
(b ) Interest Commencement Date (Settlement Date unless otherwise
noted; "Issue Date" on Secured Notes);
(c) Time of delivery;
(8) Closing location;
(9) Maturity date;
(10) If redeemable at the Company's option:
(a) whether redeemable (i) in whole or (ii) in whole or in part;
I-3
(b) initial redemption date;
(c) redemption limitation date;
(d) each redemption price and period;
(11) Sinking fund or other retirement provisions;
(12) If repayable at the holder's option:
(a) repayment date;
(b) repayment price;
(c) election period;
(13) The name of the Selling Agent or Purchasing Agent, as the case
may be;
(14) Exact name, address and taxpayer identification number of party
to be the registered owner;
(15) Party to whom Securities are to be delivered;
(16) Denominations of certificates to be delivered at settlement;
(17) The name of the Company's bank and the account number for payment
of the purchase price;
(18) Whether the Securities to be purchased are Secured Notes or
Unsecured Notes;
(19) Any other significant terms of the Securities or their offer or
sale.
B. After receiving such settlement information from the Agent, the
Company will advise the Trustee of the above settlement information. The Company
will prepare a Pricing Supplement to the Prospectus and deliver copies to the
Agent and will cause the Trustee to issue, authenticate and deliver Securities.
If an identical Pricing Supplement has not been previously filed
with the Securities and Exchange Commission (the "SEC"), the Company will
arrange to have transmitted promptly via ▇▇▇▇▇ one copy of the Pricing
Supplement (with the appropriate paragraph under Rule 424(b) and the
Registration No. inscribed in the upper right corner) to the SEC, within the
applicable time period provided in Rule 424(b).
One copy of the Pricing Supplement (with a copy of the cover
letter sent to the SEC if a filing with the SEC is required) will be sent by
facsimile to the Agents involved in such issue as soon as practicable but in no
event later than 12:00 noon on the second day after the Trade Date at each of
the following numbers:
I-4
▇▇▇▇▇▇▇ ▇▇▇▇▇ Production Technologies
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No: ▇▇▇-▇▇▇-▇▇▇▇/6547
Telephone No: ▇▇▇-▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters
4 World Financial ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: MTN Product Management
Facsimile No: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No: ▇▇▇-▇▇▇-▇▇▇▇
and
UBS Warburg LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ Blue
Managing Director, Debt Capital Markets
Facsimile No: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No: ▇▇▇-▇▇▇-▇▇▇▇
and
Banc One Capital Markets, Inc.
Mail Code IL1-0363
1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile No: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No: ▇▇▇-▇▇▇-▇▇▇▇
and
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Fixed Income Capital Markets
Facsimile No: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No: ▇▇▇-▇▇▇-▇▇▇▇
I-5
The Company shall supply the Agents as soon as practicable but in
no event later than the Settlement Date with an adequate supply of Prospectuses
and Pricing Supplements at the above addresses.
In addition, the Company will make any required filings with the
OPUC and WUTC in respect of the Securities that are issued.
Suspension of Solicitation; Amendment or Settlement:
Subject to its representations, warranties and covenants
contained in the Distribution Agreement, the Company may instruct the Agents to
suspend solicitation of purchases at any time. Upon receipt of such
instructions, the Agents will forthwith suspend solicitation of offers to
purchase from the Company until such time as the Company has advised them that
solicitation of offers to purchase may be resumed. If the Company decides to
amend or supplement the Prospectus (other than to change interest rates or other
variable terms with respect to the offering of the Securities), it will promptly
advise the Agents and will furnish the Agents and their counsel with copies of
the proposed amendment or supplement.
In the event that at the time the solicitation of offers to
purchase from the Company is suspended (other than to change interest rates or
other variable terms) there shall be any orders outstanding which have not been
settled, the Company will promptly advise the Agents and the Trustee whether
such orders may be settled and whether copies of the Prospectus as theretofore
amended and/or supplemented as in effect at the time of the suspension may be
delivered in connection with the settlement of such orders. The Company will
have the sole responsibility for such decision and for any arrangements which
may be made in the event that the Company determines that such orders may not be
settled or that copies of such Prospectus may not be so delivered.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Security a
written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement)
relating to such Security prior to delivery to such purchaser or its agent of,
or together with, the earlier to be delivered of (a) the confirmation of sale or
(b) the Security.
Instruction from Company to Trustee for Preparation of Securities:
After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Company will communicate such Sale
Information to the Mortgage Trustee or the Indenture Trustee, as the case may
be, by telephone (confirmed in writing, by facsimile transmission or by other
acceptable written means).
The Company will instruct such Trustee by telephone (confirmed in
writing, by facsimile transmission or by other acceptable written means) to
authenticate and deliver the Securities no later than 2:15 p.m., New York City
time, on the Settlement Date. Such instruction will be given by the Company
prior to 3:00 p.m., New York City time, on the business day prior to the
Settlement Date, unless the Settlement Date is the date of acceptance by the
I-6
Company of the offer to purchase Securities, in which case such instruction will
be given by the Company to the Trustee by 10:00 a.m., New York City time, on the
Settlement Date.
Procedures for Book-Entry Securities:
In connection with Securities issued in book-entry form and
maintained in the book-entry system of The Depository Trust Company ("DTC"), (i)
the Company and the Trustee shall act in accordance with the letters of
representation (relating to the Secured Notes and the Unsecured Notes,
respectively) from the Company and the Trustee to DTC, as the same may be
amended, supplemented or otherwise modified from time to time, and (ii) the
Trustee shall act in accordance with one or more Medium-Term Note Certificate
Agreements, relating to the Securities, between the Trustee and DTC, as the same
may be amended, supplemented or otherwise modified from time to time, and in
accordance with its obligations as a participant in DTC.
The beneficial owner of a Security issued in book-entry form (or
one or more indirect participants in DTC designated by such owner) will
designate one or more participants in DTC (with respect to such Security issued
in book-entry form, the "Participants") to act as agent for such beneficial
owner in connection with the book-entry system maintained by DTC, and DTC will
record in book-entry form, in accordance with instructions provided by such
Participants, a credit balance with respect to such Security issued in
book-entry form in the account of such Participants. The ownership interest of
such beneficial owner in such Security issued in book-entry form will be
recorded through the records of such Participants or through the separate
records of such Participants and one or more indirect participants in DTC.
Transfers of a Book-Entry Security will be accomplished by book
entries made by DTC and, in turn, by Participants (and in certain cases, one or
more indirect participants in DTC) acting on behalf of beneficial transferors
and transferees of such Book-Entry Security.
Beneficial interests in the Securities may be purchased, owned
and transferred only in denominations of $1,000 or any integral multiple of
$1,000.
Preparation and Delivery of Securities by Trustee and Receipt of Payment
Therefor:
Certificated Securities
The Company will instruct the Mortgage Trustee or the Indenture
Trustee, as the case may be, to:
(i) Prepare each Security and appropriate receipts that will serve as
the documentary control of the transaction.
(ii) In the case of a sale of Securities to a purchaser solicited by a
Selling Agent, by 2:15 p.m., New York City time, on the
Settlement Date, deliver the Securities to such Selling Agent, at
the address listed below, for the benefit of the purchaser of
such Securities against delivery by such Selling Agent of a
receipt therefor. (On the Settlement Date, such Selling Agent
will deliver payment for such Securities in immediately available
funds to the Company's account at a bank designated by the
I-7
Company and included as a part of the Sale Information provided
by the Selling Agent in an amount equal to the net proceeds to
the Company; provided that the Selling Agent reserves the right
to withhold payment for which it shall not have received funds
from the purchaser.)
(iii) In the case of a sale of Securities to a Purchasing Agent, by
2:15 p.m., New York City time, on the Settlement Date, deliver
the Securities to such Purchasing Agent, at the address listed
below, against delivery of payment therefor. (On the Settlement
Date, such Purchasing Agent will deliver payment for such
Securities in immediately available funds to the Company's
account at a bank designated by the Company and included as a
part of the Sale Information provided by the Purchasing Agent in
an amount equal to the net proceeds to the Company.)
(iv) Complete the 4-ply Security and deliver three copies thereof as
follows:
1. Security with Agent's customer confirmation.
2. Copy 1 - for Trustee.
3. Copy 2 - for Agent.
4. Copy 3 - for Company.
(v) With respect to each sale, deliver the Securities and Copies 1
and 2 thereof to the appropriate Agent at the following address:
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇ Window
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇
Facsimile No: ▇▇▇-▇▇▇-▇▇▇▇
or
UBS Warburg LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ Blue
Managing Director, Debt Capital Markets
Facsimile No: ▇▇▇-▇▇▇-▇▇▇▇
or
I-8
Banc One Capital Markets, Inc.
Mail Code IL1-0363
1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile No: ▇▇▇-▇▇▇-▇▇▇▇
or
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Fixed Income Capital Markets
Facsimile No: ▇▇▇-▇▇▇-▇▇▇▇
as the case may be, or to any other Agent as directed by such
Agent. (The Agent will acknowledge receipt of the Security, will
keep Copy 2 and will return Copy 1 to the Trustee. Delivery of
the Security by the Trustee will be made only against such
acknowledgment of receipt. Prior to the first settlement date,
the Trustee or the Company shall have sent a letter to ▇▇▇▇▇▇▇
▇▇▇▇▇ Clearance Operations, UBS Warburg LLC, Banc One Capital
Markets, Inc., U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc. or any other
Agent, as the case may be, containing standard wire instructions
for the net proceeds of each Security, addressed as follows:
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
4 World Financial ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No: ▇▇▇-▇▇▇-▇▇▇▇
or
UBS Warburg LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ Blue
Managing Director, Debt Capital Markets
Facsimile No: ▇▇▇-▇▇▇-▇▇▇▇
or
Banc One Capital Markets, Inc.
Mail Code IL1-0363
1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile No: ▇▇▇-▇▇▇-▇▇▇▇
or
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
I-9
Attn: Fixed Income Capital Markets
Facsimile No: ▇▇▇-▇▇▇-▇▇▇▇
as the case may be, or as directed by such other Agent.)
(vi) Send Copy 3 to the Company.
Book-Entry Securities
A. The Company will assign a CUSIP number to the Book-Entry Security
representing such Security and then advise the Trustee by electronic
transmission of the Sale Information received from the Agent, such CUSIP number
and the name of such Agent.
B. The Trustee will communicate to DTC and the Agent through DTC's
Participant Terminal System, a pending deposit message specifying the following
settlement information:
(1) The following Sale Information with respect to each Security:
(a) Taxpayer identification number of the purchaser.
(b) Principal amount of the Security.
(c) Fixed Rate Securities:
(i) interest rate;
(ii) interest payment dates; and
(iii) regular record dates.
(d) Floating Rate Securities:
(i) interest rate basis;
(ii) initial interest rate;
(iii) spread or spread multiplier, if any;
(iv) interest rate reset dates;
(v) interest rate reset period;
(vi) interest payment dates;
(vii) interest payment period;
(viii) regular record dates;
(ix) index maturity;
(x) calculation agent;
I-10
(xi) maximum and minimum interest rates, if any;
(xii) calculation date; and
(xiii) interest determination dates.
(e) Issue price.
(f) Trade date.
(g) Interest Commencement Date, which shall be the Settlement
Date unless otherwise noted ("Issue Date" on Secured Notes).
(h) Maturity date.
(i) Net proceeds to the Company.
(j) Agent's commission.
(k) Redemption provisions, if any.
(l) Repayment provisions, if any.
(2) Identification numbers of the participant accounts maintained by
DTC on behalf of the Trustee and the Agent.
(3) Identification as a Fixed Rate Book-Entry Security or Floating
Rate Book-Entry Security.
(4) Initial Interest Payment Date for such Security, number of days
by which such date succeeds the related record date for DTC
purposes (or, in the case of Floating Rate Securities which reset
daily or weekly, the date five calendar days preceding the
Interest Payment Date) and, if then calculable, the amount of
interest payable on such Interest Payment Date (which amount
shall have been confirmed by the Trustee).
(5) CUSIP number of the Book-Entry Security representing such
Security.
(6) Whether such Book-Entry Security represents any other Securities
issued or to be issued in book-entry form.
C. The Company will complete and deliver to the Trustee a Book-Entry
Security representing such Security in a form that has been approved by the
Company, the Agents and the Trustee.
D. The Trustee will authenticate the Book-Entry Security
representing such Security.
E. DTC will credit such Security to the participant account of the
Trustee maintained by DTC.
I-11
F. The Trustee will enter a Same-Day Funds Settlement System
("SDFS") deliver order through DTC's Participant Terminal System instructing DTC
(i) to debit such Security to the Trustee's participant account and credit such
Security to the participant account, maintained by DTC, of the Agent which
presented to the Company the offer to purchase such Security which was accepted
by the Company (the "Presenting Agent") and (ii) to debit the settlement account
of the Presenting Agent and credit the settlement account of the Trustee
maintained by DTC, in an amount equal to the price of such Security less such
Agent's commission.
G. The Presenting Agent will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC (i) to debit such Security to
the Presenting Agent's participant account and credit such Security to the
participant account of the Participants maintained by DTC and (ii) to debit the
settlement accounts of such Participants and credit the settlement account of
the Presenting Agent maintained by DTC, in an amount equal to the initial public
offering price of such Security.
H. Transfer of funds in accordance with SDFS deliver orders
described in Settlement Procedures F and G will be settled in accordance with
SDFS operating procedures in effect on the Settlement Date.
I. The Trustee will credit to an account of the Company maintained
at the Trustee funds available for immediate use in the amount transferred to
the Trustee in accordance with Settlement Procedure F.
J. The Trustee will send a copy of the Book-Entry Security by first
class mail to the Company together with a statement setting forth the principal
amount of Securities Outstanding as of the related Settlement Date after giving
effect to such transaction and all other offers to purchase Securities of which
the Company has advised the Trustee but which have not yet been settled.
K. The Agent will confirm the purchase of such Security to the
purchaser either by transmitting to the Participant with respect to such
Security a confirmation order through DTC's Participant Terminal System or by
mailing a written confirmation to such purchaser.
L. Settlement Procedures Timetable:
(1) For orders of Securities accepted by the Company, Settlement
Procedures A through K shall be completed as soon as possible but
not later than the respective times (New York City time) set
forth below:
Settlement
Procedure Time
--------- ----
A 11:00 a.m. on the trade date
B 2:00 p.m. on the trade date
C 3:00 p.m. on the Business Day
before Settlement Date
D 9:00 a.m. on Settlement Date
E 10:00 a.m. on Settlement Date
I-12
F-G No later than 2:00 p.m. on
Settlement Date
H 4:45 p.m. on Settlement Date
I-K 5:00 p.m. on Settlement Date
(2) If a sale is to be settled more than one Business Day after trade
date, Settlement Procedures A and B may, if necessary, be
completed at any time prior to the specified times on the first
Business Day after such trade date. In connection with a sale
which is to be settled more than one Business Day after the trade
date, if the initial interest rate for a Floating Rate Security
is not known at the time that the Sale Information is given by
the Presenting Agent to the Company, Settlement Procedures A and
B shall be completed as soon as such rates have been determined,
but no later than 11:00 a.m. and 2:00 p.m., New York City time,
respectively, on the second Business Day before the Settlement
Date. Settlement Procedure H is subject to extension in
accordance with any extension of Fedwire closing deadlines and in
the other events specified in the SDFS operating procedures in
effect on the Settlement Date.
(3) If settlement of a Security issued in book-entry form is
rescheduled or canceled, the Trustee will deliver to DTC, through
DTC's Participant Terminal System, a cancellation message to such
effect by no later than 2:00 p.m., New York City time, on the
Business Day immediately preceding the scheduled Settlement Date.
Failure of Purchaser to Pay Selling Agent:
Certificated Securities
If a purchaser shall fail to make payment to the Selling Agent
for any Security, the net proceeds to the Company which, theretofore, shall have
been paid by the Selling Agent to the Company, the Selling Agent will promptly
notify the Mortgage Trustee or the Indenture Trustee, as the case may be, and
the Company of such failure by telephone, promptly confirmed in writing or by
facsimile transmission or by other acceptable written means. The Selling Agent
promptly will return such Security to such Trustee. Promptly upon receipt of
such Security by such Trustee, the Company will return to the Selling Agent an
amount equal to the amount previously paid to the Company in respect of such
Security. Such Trustee will cancel any Security in respect of which such a
failure shall occur, make appropriate entries in its records and, unless
otherwise instructed by the Company, destroy such Security.
I-13
Book-Entry Securities
If the Trustee fails to enter an SDFS deliver order with respect
to a Book-Entry Security issued in book-entry form pursuant to paragraph F
above, the Trustee may deliver to DTC, through DTC's Participant Terminal
System, as soon as practicable a withdrawal message instructing DTC to debit
such Security to the participant account of the Trustee maintained at DTC. DTC
will process the withdrawal message, provided that such participant account
contains a principal amount of the Book-Entry Security representing such
Security that is at least equal to the principal amount to be debited. If
withdrawal messages are processed with respect to all the Securities represented
by a Book-Entry Security, the Trustee will ▇▇▇▇ such Book-Entry Security
"canceled", make appropriate entries in its records and send such canceled
Book-Entry Security to the Company. The CUSIP number assigned to such Book-Entry
Security shall, in accordance with CUSIP Service Bureau procedures, be canceled
and not immediately reassigned. If withdrawal messages are processed with
respect to a portion of the Securities represented by a Book-Entry Security, the
Trustee will exchange such Book-Entry Security for two Book-Entry Securities,
one of which shall represent the Book-Entry Securities for which withdrawal
messages are processed and shall be canceled immediately after issuance, and the
other of which shall represent the other Securities previously represented by
the surrendered Book-Entry Security and shall bear the CUSIP number of the
surrendered Book-Entry Security.
If the purchase price for any Book-Entry Security is not timely
paid to the Participants with respect to such Security by the beneficial
purchaser thereof (or a person, including an indirect participant in DTC acting
on behalf of such purchaser), such Participants and, in turn, the related Agent
may enter SDFS deliver orders through DTC's Participant Terminal System
reversing the orders entered pursuant to paragraphs F and G above, respectively.
Thereafter, the Trustee will deliver the withdrawal message and take the related
actions described in the preceding paragraph. If such failure shall have
occurred for any reason other than default by the applicable Agent to perform
its obligations hereunder or under the Distribution Agreement, the Company will
reimburse such Agent on an equitable basis for its loss of the use of funds
during the period when the funds were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to settle with
respect to a Book-Entry Security, DTC may take any actions in accordance with
its SDFS operating procedures then in effect. In the event of a failure to
settle with respect to a Security that was to have been represented by a
Book-Entry Security also representing other Securities, the Trustee will
provide, in accordance with paragraphs C and D above, for the authentication and
issuance of a Book-Entry Security representing such remaining Securities and
will make appropriate entries in its records.
I-14
ANNEX II
Northwest Natural Gas Company
Medium-Term Notes
Terms Agreement
[▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
4 World Financial ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇]
[UBS Warburg LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇]
[Banc One Capital Markets, Inc.
1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇]
[U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇]
[Name of additional Agents, if any]
Ladies and Gentlemen:
Subject to the terms and conditions set forth herein and, to the
extent provided below, in the Distribution Agreement, dated ___________, 2002
(the "Distribution Agreement"), amongst Northwest Natural Gas Company (the
"Company"), on the one hand, and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, UBS Warburg LLC, Banc One Capital Markets, Inc., U.S. Bancorp
▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc. and each other person which shall become a party to the
Distribution Agreement (each an "Agent" and, together, the "Agents"), on the
other, the Company proposes to issue and sell to [▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇
& ▇▇▇▇▇ Incorporated] [UBS Warburg LLC] [Banc One Capital Markets, Inc.] [U.S.
Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.] [Name of other Agent] the Securities (as defined in
the Distribution Agreement) specified in the Schedule hereto (the "Purchased
Securities"), at the time, place and purchase price and upon the terms and
conditions set forth in such Schedule. Each of the provisions of the
Distribution Agreement not specifically related to the solicitation by the
Agents, as agents of the Company, of offers to purchase Securities is
incorporated herein by reference, and shall be deemed to be part of this Terms
Agreement to the same extent as if such provisions had been set forth herein.
Each of the representations and warranties set forth in the
Distribution Agreement shall be deemed to have been made by the Company at and
as of the date of this Terms Agreement, except that each such representation and
warranty which makes reference to the Prospectus shall be deemed to be a
representation and warranty as of the date of the Distribution Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Terms Agreement in relation to the Prospectus as
amended and supplemented with respect to the Purchased Securities.
A supplement to the Prospectus relating to the Purchased
Securities, in the form heretofore delivered to and approved by you, is now
proposed to be filed with the Commission in accordance with Rule 424(b) under
the Act.
Subject to the terms and conditions set forth herein and to those
of the Distribution Agreement incorporated herein by reference, the Company
agrees to issue and sell to [▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated]
[UBS Warburg LLC] [Banc One Capital Markets, Inc.] [U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇
Inc.] [Name of other Agent] and [▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated] [UBS Warburg LLC] [Banc One Capital Markets, Inc.] [U.S. Bancorp
▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.] [Name of other Agent] agrees to purchase from the Company
the Purchased Securities, at the time and place, in the principal amount and at
the purchase price set forth in the Schedule hereto.
If the foregoing is in accordance with your understanding, please
sign and return to us three counterparts hereof, whereupon this letter,
including those provisions of the Distribution Agreement incorporated herein by
reference, shall constitute a binding agreement between you and the Company.
NORTHWEST NATURAL GAS COMPANY
By:
--------------------------
Title:
Accepted as of the date hereof:
[▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
By:
-----------------------------------------
Title: ]
[UBS WARBURG LLC
By:
------------------------------------------------
Title: ]
By:
------------------------------------------------
Title: ]
II-2
[BANC ONE CAPITAL MARKETS, INC.
By:
------------------------------------------------
Title: ]
[U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ INC.
By:
------------------------------------------------
Title: ]
[Name of other Agent, if any]
II-3
Schedule to Annex II
Title of Purchased Securities:
Aggregate Principal Amount: $
Price to Public:
Purchase Price by [▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated] [UBS
Warburg LLC] [Banc One Capital Markets, Inc.] [U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.]
[Name of other Agent]:
% of the principal amount of the Purchased Securities [, plus accrued
interest from to ] [and accrued amortization of discount from to
]
Method of and Specified Funds for Payment of Purchase Price:
[By certified or official bank check or checks, payable to the
order of the Company, in [[New York Clearing House] [immediately available]
funds]
[By wire transfer to a bank account specified by the Company in
[next day] [immediately available] funds]
Indenture: [Mortgage] [Note Indenture]
Interest Commencement Date which shall be the Settlement Date unless otherwise
noted ("Issue Date" on Secured Notes):
Time of Delivery:
Closing Location:
Stated Maturity Date:
Interest Rate or Rates (or Method of Determining Interest):
Interest Payment Dates: [months and dates]
Initial Interest Payment Date:
Regular Record Dates:
Redeemable at Company's Option: Yes ___ No ___
In Whole: Yes___ No___
In Part: Yes___ No___
Initial Redemption Date:
Redemption Limitation Date:
II-4
Initial Redemption Price:
Reduction Percentage:
Sinking Fund or Other Retirement Provisions, if any:
Repayable at Option of Holder: Yes ___ No ___
Repayment Date:
Repayment Price:
Election Period:
Documents to be Delivered as a Condition to the Closing:
[(1) The opinion of counsel to the Agents referred to in Section 5(h)]
[(2) The opinion of counsel to the Company referred to in Section
5(i)(i)]
[(3) The opinion of counsel to the Company referred to in Section
5(i)(ii)]
[(4) The opinion of counsel to the Company referred to in Section
5(i)(iii)]
[(5) The accountants letter referred to in Section 5(j)]
[(6) The officers certificate referred to in Section 5(i)(iv)]
Other Provisions (including Syndicate Provisions, if applicable):
II-5
ANNEX III
[Letterhead of ▇▇▇▇ ▇. ▇▇▇▇▇▇]
__________, 2002
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
4 World Financial ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
UBS Warburg LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Banc One Capital Markets, Inc.
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
With reference to the issuance and sale from time-to-time by Northwest
Natural Gas Company (the "Company"), pursuant to the Distribution Agreement,
dated ________, 2002 (the "Agreement"), between the Company and each of you, of
not to exceed $150,000,000 in aggregate principal amount of (i) the Company's
First Mortgage Bonds, designated Secured Medium-Term Notes, Series B (the
"Secured Notes") to be issued under the Company's Mortgage and Deed of Trust,
dated as of July 1, 1946, to Deutsche Bank Trust Company Americas (formerly
known as Bankers Trust Company, the "Corporate Trustee") and R.G. Page (▇▇▇▇▇▇▇
▇▇▇▇, successor), as trustees, as supplemented by twenty supplemental indentures
(such Mortgage and Deed of Trust, as so supplemented, being hereinafter called
the "Mortgage"), and (ii) the Company's Unsecured Medium-Term Notes, Series B
(the "Unsecured Notes"), to be issued under the Company's Indenture, dated as of
June 1, 1991 (the "Indenture"), to Deutsche Bank Trust Company Americas, as
trustee (the "Indenture Trustee") (the Secured Notes and the Unsecured Notes
being hereinafter collectively referred to as the "Notes"), and the appointment
of each of you as agents of the Company pursuant to the Agreement for the
purposes of soliciting and receiving offers to purchase Notes, as agents, and
purchasing Notes, as principals, from the Company, please be
advised that, as General Counsel of the Company, I have participated in the
preparation of or reviewed (a) the Restated Articles of Incorporation, as
amended, and Bylaws, as amended, of the Company; (b) the Mortgage; (c) the
Indenture; (d) the Agreement; (e) the registration statement (File No.
333-______) (the "Registration Statement"), filed by the Company with the
Securities and Exchange Commission (the "SEC") for the registration under the
Securities Act of 1933, as amended (the "1933 Act"), of $150,000,000 of the
Notes, and for the qualification under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), of the Mortgage and the Indenture, which
Registration Statement became effective on ________, 2002; (f) the prospectus
relating to the Notes constituting a part of the Registration Statement in the
form in which the Registration Statement became effective, or if such prospectus
has been amended or supplemented subsequent to such effectiveness, as so amended
and supplemented, including the documents incorporated therein by reference
pursuant to Item 12 of Form S-3 (the "Prospectus"); (g) the proceedings before
the Oregon Public Utility Commission (the "OPUC") and the Washington Utilities
and Transportation Commission (the "WUTC") relating to the issuance and sale of
the Notes; and (h) the records of various corporate and other proceedings
relating to the authorization, issuance and sale of the Notes. I have also
examined such other documents and satisfied myself as to such other matters as I
have deemed necessary in order to render this opinion. I have not examined the
Notes, except specimens thereof.
In preparation of this opinion, I have examined originals or
photostatic certified copies of such certificates, agreements, documents and
other papers, and have made such inquiries and investigations of law, as I
deemed appropriate and necessary for the opinion hereinafter set forth. In my
examination, I have assumed the authenticity of all documents submitted to me as
certified or photostatic copies and the authenticity of the originals of such
latter documents. As to certain matters of fact material to the opinion
expressed herein, I have relied upon certificates of various corporate officers
of the Company and public officials. I assume the accuracy of the material and
factual matters contained therein.
I am of the opinion that:
1. The Company is a validly organized and existing corporation in
good standing under the laws of the State of Oregon, is authorized to transact
business in the State of Washington, and has power (corporate and other) to own
its properties and conduct its business as described in the Prospectus.
2. The Company holds valid and subsisting franchises, licenses,
permits and consents, free from burdensome restrictions and adequate for the
conduct of its business, as and to the extent set forth in the Prospectus.
3. The Agreement has been duly and validly authorized, executed and
delivered by the Company.
4. The Mortgage and the Indenture have been duly and validly
authorized by all necessary corporate action, have been duly and validly
executed and delivered, and are valid and binding instruments enforceable in
accordance with their terms, subject, as to enforcement, to laws and principles
III-2
of equity relating to or affecting generally the enforcement of creditors
rights, including, without limitation, bankruptcy and insolvency.
5. The Mortgage constitutes a first security interest on all of the
personal properties and fixtures owned by the Company that are described in the
Mortgage and are intended to be subject to the lien thereof, subject only to
Excepted Encumbrances (as defined in the Mortgage); and the description in the
Mortgage of such properties and fixtures is adequate to constitute the Mortgage
a security interest thereon.
6. The Company has good and sufficient title to all of the real
properties owned by the Company that are described in the Mortgage and intended
to be subject to the lien thereof, subject only to Excepted Encumbrances (as
defined in the Mortgage) and to minor defects and irregularities of the nature
customarily found in properties of like size and character; the description in
the Mortgage of such properties is adequate to constitute the Mortgage a lien
thereon; and the Mortgage is a valid first mortgage lien on such properties,
subject to the exceptions noted above in this paragraph (6).
7. The form of the Secured Notes has been duly authorized and has
been established in conformity with the provisions of the Mortgage; the form of
the Unsecured Notes bearing interest at a fixed rate, has been duly authorized
and has been established in conformity with the provisions of the Indenture; and
the form of the Unsecured Notes, bearing interest at a variable rate or not
bearing interest, when set forth in a Company Order or Orders (as defined in the
Indenture) or established by procedures acceptable to the Indenture Trustee
specified in a Company Order or Orders, will have been duly authorized and will
have been established in conformity with the provisions of the Indenture.
8. The Secured Notes have been duly authorized by the resolutions
adopted by the Company's Board of Directors on May 27, 1993, September 26, 1996,
April 24, 1997, February 26, 1998, April 27, 2000 and April 25, 2002 (the "Board
Resolutions"), and when the terms of the Secured Notes shall have been
determined as contemplated by and in accordance with the Mortgage, the Board
Resolutions and written orders or instructions evidencing determinations by
officers of the Company, such terms will have been duly authorized by the
Company and will have been established in conformity with the terms of the
Mortgage.
9. The Unsecured Notes have been duly authorized by the Board
Resolutions, and when the terms of the Unsecured Notes shall have been
determined as contemplated by and in accordance with the Indenture, the Board
Resolutions and, to the extent required by the Indenture and the Board
Resolutions, by Officers' Certificates (as defined in the Indenture), Company
Orders and procedures acceptable to the Indenture Trustee specified in such
Company Orders, such terms will have been duly authorized by the Company and
will have been established in conformity with the terms of the Indenture.
10. The Notes, when (a) executed by the Company, (b) completed,
authenticated and delivered by the Corporate Trustee or the Indenture Trustee,
as the case may be, (c) issued and delivered by the Company and (d) paid for,
all as contemplated by and in accordance with the Mortgage, in the case of
Secured Notes, the Indenture, in the case of Unsecured Notes, the Board
Resolutions, and (to the extent required by the Mortgage or the Indenture and
III-3
the Board Resolutions) Officers' Certificates, Company Orders, procedures
acceptable to the Indenture Trustee specified in such Company Orders, written
orders or instructions evidencing determinations by the officers of the Company,
the Agreement, the Administrative Procedure (as defined in the Agreement), and
Terms Agreements (as defined in the Agreement), if any, will be duly issued
under the Mortgage or the Indenture, as the case may be, and will constitute
valid and legally binding obligations of the Company, entitled to the benefits
provided by the Mortgage or the Indenture, as the case may be, and enforceable
in accordance with their terms, subject, as to enforcement, to laws and
principles of equity relating to or affecting generally the enforcement of
creditors' rights, including, without limitation, bankruptcy and insolvency,
and, in the case of the Secured Notes, entitled to the benefit of the security
afforded by the Mortgage.
11. The issuance and sale of the Notes, the compliance by the Company
with all of the provisions of the Notes, the Mortgage, the Indenture and the
Agreement and the consummation of the transactions contemplated by the Agreement
will not result in a breach or violation of any of the terms and provisions of,
or constitute a default under, any statute, any indenture, mortgage, deed of
trust or other agreement or instrument known to me to which the Company is a
party or by which it is bound or to which any of the property of the Company is
subject, the Company's Restated Articles of Incorporation, as amended, or
Bylaws, as amended, or any order, rule or regulation known to me of any court or
governmental agency or body having jurisdiction over the Company or any of its
properties.
12. The OPUC has issued orders authorizing, and the WUTC has issued
orders establishing compliance with applicable statutory provisions with respect
to, the issuance and sale by the Company of the Notes; and no further approval,
authorization, consent or other order of any public board or body (other than in
connection or in compliance with the provisions of the securities or blue sky
laws of any jurisdiction) is legally required for the issuance and sale of the
Notes on the terms and conditions set forth in the Agreement.
13. The statements of Oregon and Federal law (other than the 1933
Act, the Securities Exchange Act of 1934 and the Trust Indenture Act), and legal
conclusions based thereon, contained in, or in the documents incorporated by
reference in, the Prospectus have been reviewed by me and are correct (except to
the extent that any statement contained in a document incorporated or deemed to
be incorporated by reference in the Prospectus may be deemed to be modified or
superseded in the Prospectus or in any other subsequently filed document which
also is or is deemed to be incorporated by reference in the Prospectus).
14. Except as described in the Prospectus, there are no pending
material legal or governmental proceedings and, to my knowledge, no material
threatened legal or governmental proceedings, to which the Company is a party or
of which any of the property of the Company is the subject, other than ordinary
routine litigation incidental to the kind of business conducted by the Company.
In the course of the preparation by the Company of the Registration
Statement and the Prospectus, I had conferences with certain officers and
employees of the Company, but I have made no independent verification of the
accuracy or completeness of the representations and statements made to me by
such person or the information included by the Company in the Registration
Statement and the Prospectus, and take no responsibility therefor, except as set
III-4
forth in paragraph 12 hereof. However, my examination of the Registration
Statement and the Prospectus and my discussions in the above-mentioned
conferences did not disclose to me any information which gives me reason to
believe that, when the Registration Statement became effective, it 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 includes 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, that I do not express any belief
as to the financial statements or other financial or statistical data contained
in the Registration Statement or the Prospectus, or as to the Forms T-1 or T-2,
or as to any information contained therein furnished to the Company in writing
by any of you expressly for use therein.
This opinion is limited to the facts and law at the date hereof. In
rendering the opinions set forth in paragraphs 10, 11 and 12 above, I have
necessarily assumed that, at the time of any issuance, sale and delivery of a
Note (i) the Board of Directors of the Company (or any committee thereof acting
pursuant to authority properly delegated to such committee by the Board of
Directors) has not taken any action to rescind or otherwise reduce its prior
authorization of the issuance of the Notes and an officer of the Company, as
stated in the resolutions of the Board of Directors (or any such committee)
relating to the Notes, has executed and delivered such Notes, (ii) the orders of
the OPUC and the WUTC with respect to the Notes remain in full force and effect
and have not been modified or amended by the OPUC or the WUTC, respectively, and
the Company complies with the terms of such orders, and (iii) the order of the
SEC with respect to the Registration Statement, the Mortgage and the Indenture
remains in full force and effect and has not been modified or amended by the
SEC.
I am a member of the bar of the State of Oregon and do not hold myself
out as an expert on the laws of the State of Washington, the State of New York
or Federal securities laws. Accordingly, in rendering this opinion, I have
relied, with your consent, as to certain matters of Washington law, upon the
opinion of even date herewith addressed to you by Stoel Rives LLP, special
Washington counsel to the Company, and, as to all matters governed by the laws
of the State of New York, the 1933 Act, the Securities Exchange Act of 1934 and
the Trust Indenture Act, upon the opinion of even date herewith addressed to you
by ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, New York, New York, counsel for the Company. In
rendering this opinion, I have made such reviews of the laws of the State of
Washington as I believe to be necessary to satisfy myself as to questions of
Washington law which are not addressed by the opinion of Stoel Rives LLP.
You, the Trustees and, as to matters governed by the laws of the State
of Oregon, ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP and your counsel may rely upon this opinion
in connection with the issuance and sale of the Notes. Neither you nor any of
them may rely upon this opinion for any other purpose, and no other person may
rely upon this opinion for any purpose without, in each case, my prior written
consent.
Very truly yours,
▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
III-5
ANNEX IV
[Letterhead of ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP]
_________, 2002
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
4 World Financial ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
UBS Warburg LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Banc One Capital Markets, Inc.
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
With reference to the issuance and sale from time-to-time by
Northwest Natural Gas Company (the "Company"), pursuant to the Distribution
Agreement, dated ____________, 2002 (the "Agreement"), between the Company and
each of you, of not to exceed $150,000,000 in aggregate principal amount of (i)
the Company's First Mortgage Bonds, designated Secured Medium-Term Notes, Series
B (the "Secured Notes"), to be issued under the Company's Mortgage and Deed of
Trust, dated as of July 1, 1946, to Deutsche Bank Trust Company Americas
(formerly known as Bankers Trust Company, the "Corporate Trustee") and R.G. Page
(▇▇▇▇▇▇▇ ▇▇▇▇, successor), as trustees, as supplemented by twenty supplemental
indentures (such Mortgage and Deed of Trust, as so supplemented, being
hereinafter called the "Mortgage"), and (ii) the Company's Unsecured Medium-Term
Notes, Series B (the "Unsecured Notes"), to be issued under the Company's
Indenture, dated as of June 1, 1991 (the "Indenture"), to Deutsche Bank Trust
Company Americas, as trustee (the "Indenture Trustee") (the Secured Notes and
the Unsecured Notes being hereinafter collectively referred to as the "Notes"),
and the appointment of each of you as agents of the Company pursuant to the
Agreement for the purposes of soliciting and receiving offers to purchase Notes,
as agents, and purchasing Notes, as principals, from the Company, please be
advised that, as counsel to the Company, we have participated in the preparation
of or reviewed (a) the Restated Articles of Incorporation, as amended, and
Bylaws, as amended, of the Company; (b) the Mortgage; (c) the Indenture; (d) the
Agreement; (e) the registration statement (File No. 333-_______) (the
"Registration Statement"), filed by the Company with the Securities and Exchange
Commission (the "SEC") for the registration under the Securities Act of 1933, as
amended (the "1933 Act"), of $150,000,000 of the Notes and for the qualification
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
of the Mortgage and the Indenture, which Registration Statement became effective
on ___________, 2002; (f) the prospectus relating to the Notes constituting a
part of the Registration Statement in the form in which it became effective, or
if such prospectus has been amended or supplemented subsequent to such
effectiveness, as so amended or supplemented, including the documents
incorporated therein by reference pursuant to Item 12 of Form S-3 (the
"Prospectus"); (g) the records of the proceedings before the Oregon Public
Utility Commission (the "OPUC") and the Washington Utilities and Transportation
Commission (the "WUTC") relating to the issuance and sale of the Notes; and (h)
the records of various corporate and other proceedings relating to the
authorization, issuance and sale of the Notes. 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 Notes,
except specimens thereof.
In the preparation of this opinion, we have examined originals or
photostatic or certified copies of such certificates, agreements, documents and
other papers, and have made such inquiries and investigations of law, as we
deemed appropriate and necessary for the opinion hereinafter set forth. In our
examination, we have assumed the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies and the authenticity of the originals of
such latter documents. As to certain matters of fact material to the opinion
expressed herein, we have relied upon certificates of various corporate officers
of the Company and public officials. We assume the accuracy of the material and
factual matters contained therein.
We are of the opinion that:
1. The Company is a validly organized and existing corporation in
good standing under the laws of the State of Oregon, and is authorized to
transact business in the State of Washington.
2. The Agreement has been duly and validly authorized, executed and
delivered by the Company.
3. The Mortgage and the Indenture have been duly and validly
authorized by all necessary corporate action, have been duly and validly
executed and delivered, have been duly qualified under the Trust Indenture Act,
and are valid and binding instruments enforceable in accordance with their
terms, subject, as to enforcement, to laws and principles of equity relating to
or affecting generally the enforcement of creditors' rights, including, without
limitation, bankruptcy and insolvency.
4. The form of the Secured Notes has been duly authorized and has
been established in conformity with the provisions of the Mortgage and conforms
to the description thereof contained in the Prospectus; the form of the
Unsecured Notes, bearing interest at a fixed rate, has been duly authorized and
has been established in conformity with the provisions of the Indenture and
IV-2
conforms to the description thereof contained in the Prospectus; and the form of
the Unsecured Notes, bearing interest at a variable rate or not bearing
interest, when set forth in a Company Order or Orders (as defined in the
Indenture) or established by procedures acceptable to the Indenture Trustee
specified in a Company Order or Orders, will have been duly authorized and will
have been established in conformity with the provisions of the Indenture.
5. The Secured Notes have been duly authorized by the resolutions
adopted by the Company's Board of Directors on May 27, 1993, September 26, 1996,
April 24, 1997, February 26, 1998, April 27, 2000 and April 25, 2002 (the "Board
Resolutions"), and when the terms of the Secured Notes shall have been
determined as contemplated by and in accordance with the Mortgage, the Board
Resolutions and written orders or instructions evidencing determinations by
Officers of the Company, such terms will have been duly authorized by the
Company and will have been established in conformity with the terms of the
Mortgage.
6. The Unsecured Notes have been duly authorized by the Board
Resolutions, and when the terms of the Unsecured Notes shall have been
determined as contemplated by and in accordance with the Indenture, the Board
Resolutions and, to the extent required by the Indenture and the Board
Resolutions, by Officers' Certificates (each, as defined in the Indenture),
Company Orders and procedures acceptable to the Indenture Trustee specified in
such Company Orders, such terms will have been duly authorized by the Company
and will have been established in conformity with the terms of the Indenture.
7. The Notes, when (a) executed by the Company, (b) completed,
authenticated and delivered by the Corporate Trustee or the Indenture Trustee,
as the case may be, (c) issued and delivered by the Company and (d) paid for,
all as contemplated by and in accordance with the Mortgage, in the case of the
Secured Notes, the Indenture, in the case of Unsecured Notes, the Board
Resolutions, and (to the extent required by the Mortgage or the Indenture and
the Board Resolutions) Officers' Certificates, Company Orders, procedures
acceptable to the Indenture Trustee specified in such Company Orders, written
orders or instructions evidencing determinations by the officers of the Company,
the Agreement, the Administrative Procedure (as defined in the Agreement) and
Terms Agreements (as defined in the Agreement), if any, will be duly issued
under the Mortgage or the Indenture, as the case may be, and will constitute
valid and legally binding obligations of the Company, entitled to the benefits
provided by the Mortgage or the Indenture, as the case may be, and enforceable
in accordance with their terms, subject, as to enforcement, to laws and
principles of equity relating to or affecting generally the enforcement of
creditors' rights, including, without limitation, bankruptcy and insolvency,
and, in the case of the Secured Notes, entitled to the benefit of the security
afforded by the Mortgage.
8. The issuance and sale of the Notes, the compliance by the Company
with all of the provisions of the Notes, the Mortgage, the Indenture and the
Agreement and the consummation of the transactions contemplated by the Agreement
will not result in a breach or violation of any of the terms and provisions of,
or constitute a default under, the Mortgage and the Indenture or the Company's
Restated Articles of Incorporation, as amended, or Bylaws, as amended.
IV-3
9. The OPUC has issued orders authorizing, and the WUTC has issued
orders establishing compliance with applicable statutory provisions with respect
to, the issuance and sale by the Company of the Notes; and no further approval,
authorization, consent or other order of any public board or body (other than in
connection or in compliance with the provisions of the securities or blue sky
laws of any jurisdiction) is legally required for the issuance and sale of the
Notes through each of you, as agent, on the terms and conditions set forth in
the Agreement.
10. The Registration Statement has become effective under the 1933
Act, and, to the best of our knowledge, no stop order suspending the
effectiveness thereof has been issued and no proceedings for that purpose are
pending before or have been proposed by the SEC; the Mortgage and the Indenture
have been duly qualified under the Trust Indenture Act; the Registration
Statement at the time it became effective complied, and the Prospectus
(excluding the documents incorporated therein by reference) as of the date of
this opinion complies, as to form, in all material respects with the
requirements of the 1933 Act, the Trust Indenture Act (except with respect to
the Forms T-1 and Form T-2, upon which we do not pass) and the rules and
regulations of the SEC thereunder; and the documents incorporated by reference
in the Prospectus pursuant to Item 12 of Form S-3 (other than the financial
statements and other financial or statistical data contained therein, upon which
we express no opinion), as of their respective dates of filing, complied as to
form in all material respects with the requirements of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of
the SEC thereunder.
In the course of the preparation by the Company of the Registration
Statement and the Prospectus, we had conferences with certain officers and
employees of the Company, with the General Counsel for the Company and with you
and your counsel, but we made no independent verification of the accuracy or
completeness of the representations and statements made to us by such persons or
the information included by the Company in the Registration Statement and the
Prospectus and take no responsibility therefor, except insofar as set forth in
paragraph 4 hereof. In passing upon the form of the Registration Statement and
the Prospectus we have, therefore, assumed the accuracy and completeness of such
representations, statements and information, except as aforesaid. However, our
examination of the Registration Statement and the Prospectus and our discussions
in the above-mentioned conferences did not disclose to us any information which
gives us reason to believe that, when the Registration Statement became
effective, it 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 includes 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, that we
do not express any belief as to the financial statements or other financial or
statistical data contained in the Registration Statement or the Prospectus, or
as to the Forms T-1 or T-2, or as to any information contained therein furnished
to the Company in writing by any of you expressly for use therein.
This opinion is limited to the facts and law at the date hereof. In
rendering the opinions set forth in paragraphs 7 and 9 above, we have
necessarily assumed that, at the time of any issuance, sale and delivery of a
Note (i) the Board of Directors of the Company (or any committee thereof acting
pursuant to authority properly delegated to such committee by the Board of
IV-4
Directors) has not taken any action to rescind or otherwise reduce its prior
authorization of the issuance of the Notes and an officer of the Company, as
stated in the resolutions of the Board of Directors (or any such committee)
relating to the Notes, has executed and delivered such Notes, (ii) the orders of
the OPUC and the WUTC with respect to the Notes remain in full force and effect
and have not been modified or amended by the OPUC or the WUTC, respectively, and
the Company complies with the terms of such orders and (iii) the order of the
SEC with respect to the Registration Statement, the Mortgage and the Indenture
remains in full force and effect and has not been modified or amended by the
SEC.
We are members of the bar of the State of New York and do not hold
ourselves out as experts on the laws of the State of Oregon or the State of
Washington. Accordingly, in rendering this opinion, we have relied, with your
consent, as to all matters governed by the laws of the State of Oregon, upon the
opinion of even date herewith addressed to you by ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., General
Counsel of the Company, and, as to all matters governed by the laws of the State
of Washington, upon the opinion of Stoel Rives LLP, special Washington counsel
to the Company. We understand that you are relying upon the opinions of ▇▇▇▇ ▇.
▇▇▇▇▇▇, Esq., and Stoel Rives LLP as to all matters governed by the laws of the
State of Oregon and Washington, as the case may be, including titles to property
and franchises and the lien of the Mortgage, upon which we do not pass.
You, the Trustees, and as to matters governed by the laws of the State
of New York and the 1933 Act, the Exchange Act and the Trust Indenture Act, ▇▇▇▇
▇. ▇▇▇▇▇▇, Esq., may rely upon this opinion in connection with the issuance and
sale of the Notes. Neither you nor any of them may rely upon this opinion for
any other purpose, and no other person may rely upon this opinion for any
purpose without, in each case, our prior written consent.
Very truly yours,
▇▇▇▇▇▇ ▇▇▇▇ & PRIEST LLP
IV-5
ANNEX V
[Letterhead of Stoel Rives LLP]
____________, 2002
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇
& ▇▇▇▇▇ Incorporated
4 World Financial ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
UBS Warburg LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Banc One Capital Markets, Inc.
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
With reference to the issuance and sale from time-to-time by
Northwest Natural Gas Company (the "Company"), pursuant to the Distribution
Agreement, dated __________, 2002 (the "Agreement"), between the Company and
each of you, of not to exceed $150,000,000 in aggregate principal amount of (i)
the Company's First Mortgage Bonds, designated Secured Medium-Term Notes, Series
B (the "Secured Notes") to be issued under the Company's Mortgage and Deed of
Trust, dated as of July 1, 1946, to Deutsche Bank Trust Company Americas
(formerly known as Bankers Trust Company, the "Corporate Trustee") and R.G. Page
(▇▇▇▇▇▇▇ ▇▇▇▇, successor), as trustees, as supplemented by twenty supplemental
indentures (such Mortgage and Deed of Trust, as so supplemented, being
hereinafter called the "Mortgage"), and (ii) the Company's Unsecured Medium-Term
Notes, Series B (the "Unsecured Notes"), to be issued under the Company's
Indenture, dated as of June 1, 1991 (the "Indenture"), to Deutsche Bank Trust
Company Americas, as trustee (the "Indenture Trustee") (the Secured Notes and
the Unsecured Notes being hereinafter collectively referred to as the "Notes"),
and the appointment of each of you as agents of the Company pursuant to the
Agreement for the purposes of soliciting and receiving offers to purchase Notes,
as agents, and purchasing Notes, as principals, from the Company, please be
advised that, as special Washington counsel to the Company, we have reviewed (a)
the Mortgage; (b) the Indenture; (c) the Agreement; and (d) the proceedings
before the Washington Utilities and Transportation Commission (the "WUTC")
relating to the issuance and sale of the Notes. 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 Notes,
except for forms thereof.
In preparation of this opinion, we have examined originals or
photostatic copies of such certificates, agreements, documents and other papers,
and have made such inquiries and investigations of law, as we deemed appropriate
and necessary for the opinion hereinafter set forth. In our examination, we have
assumed the authenticity of all documents submitted to us as certified or
photostatic copies and the authenticity of the originals of such latter
documents. We have also assumed that the Mortgage, the Indenture and the
Agreement have been duly authorized, executed and delivered by, and are legally
binding on, each of the parties thereto.
As to certain matters of fact material to the opinion expressed
herein, we have relied upon certificates of various corporate officers of the
Company and public officials. We assume the accuracy of the material and factual
matters contained therein.
Based upon the foregoing and subject to the following qualifications,
we are of the opinion that:
1. The Company is authorized to transact business in the State of
Washington.
2. The Mortgage constitutes a first security interest on all of the
personal properties and fixtures owned by the Company in the State of Washington
that are described in the Mortgage and are intended to be subject to the lien
thereof, subject only to Excepted Encumbrances (as defined in the Mortgage); and
the description in the Mortgage of such properties and fixtures is adequate to
constitute the Mortgage a security interest thereon.
3. The Company has good and sufficient title to all of the real
properties owned by the Company in the State of Washington that are described in
the Mortgage and intended to be subject to the lien thereof, subject only to
Excepted Encumbrances (as defined in the Mortgage) and to minor defects and
irregularities of the nature customarily found in properties of like size and
character; the description in the Mortgage of such properties is adequate to
constitute the Mortgage a lien thereon; and the Mortgage is a valid first
mortgage lien on such properties, subject to the exceptions noted above in this
paragraph 3.
4. The issuance and sale of the Notes, the compliance by the Company
with all of the provisions of the Notes, the Mortgage, the Indenture and the
Agreement and the consummation of the transactions contemplated by the Agreement
will not violate any law, rule or regulation of the State of Washington or any
political subdivision thereof known to us to be applicable to the Company.
5. [The WUTC has issued an order dated ________, 2002 in Docket
__-_____, establishing compliance with applicable statutory provisions with
respect to the issuance and sale by the Company of the Notes; and under the laws
of the State of Washington, no further approval, authorization, consent or other
order of any public board or body is legally required for the issuance and sale
of the Notes through each of you, as agent, on the terms and conditions set
forth in the Agreement.]
V-2
This opinion is limited to the facts and law at the date hereof. In
rendering the opinions set forth in paragraphs 4 and 5 above, we have
necessarily assumed that, at the time of any issuance, sale and delivery of a
Note (i) the Board of Directors of the Company (or any committee thereof acting
pursuant to authority properly delegated to such committee by the Board of
Directors) has not taken any action to rescind or otherwise reduce its prior
authorization of the issuance of the Notes and an officer of the Company, as
stated in the resolutions of the Board of Directors (or any such committee)
relating to the Notes, has executed and delivered such Notes and (ii) the orders
of the WUTC with respect to the Notes remain in full force and effect and have
not been modified or amended by the WUTC and the Company complies with the terms
of such orders.
We are members of the bar of the State of Washington and do not
express any opinion herein concerning any laws other than the laws of the State
of Washington.
In giving the foregoing opinions, we express no opinion as to any
securities or blue sky laws of any jurisdiction.
You, the Trustees, ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., General Counsel of the
Company, ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, counsel to the Company, and your counsel, as
to matters governed by the laws of the State of Washington, may rely upon this
opinion in connection with the issuance and sale of the Notes. Neither you nor
any of them may rely upon this opinion for any other purpose, and no other
person may rely upon this opinion for any purpose without, in each case, our
prior written consent.
Very truly yours,
STOEL RIVES LLP
V-3
ANNEX VI
[Contents of Letter of Independent Public Accountants]
The letter of each independent public accountant will state in effect
that, for the periods during which such firm was the independent public
accountant for the Company:
1. They are independent public accountants with respect to the
Company within the meaning of the Act and the applicable published Rules and
Regulations;
2. In their opinion, the financial statements examined by them and
incorporated by reference in the Registration Statement comply as to form in all
material respects with the applicable accounting requirements of the Exchange
Act and the published rules and regulations thereunder;
3. On the basis of limited procedures, not constituting an
examination made in accordance with generally accepted auditing standards,
including a reading of the latest available interim financial statements of the
Company, if any, a reading of the minute books of the Company since December 31,
2001, inquiries of officials of the Company responsible for financial and
accounting matters and such other inquiries and procedures as may be specified
in such letter, nothing came to their attention that caused them to believe
that:
(a) (1) the latest interim consolidated financial statements
included or incorporated by reference in the Registration Statement do
not comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the published rules
and regulations thereunder as they apply to Form 10-Q or (2) said
interim consolidated financial statements are not in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited consolidated
financial statements incorporated by reference in the Registration
Statement;
(b) at the date of the latest available interim balance sheet of
the Company and at a subsequent specified date not more than five days
prior to the Time of Delivery, there has been any change in the
capital stock (except for (i) shares of the Company's Common Stock
issued under the Company's Dividend Reinvestment Plan, Restated Stock
Option Plan or Employee Stock Purchase Plan, (ii) shares of Common
Stock issued upon the conversion of shares of the Company's
Convertible Debentures, (iii) shares of Common Stock repurchased
pursuant to the Company's Repurchase Program, and (iv) shares of
Preferred Stock purchased or redeemed pursuant to or in anticipation
of sinking and purchase funds with respect to the Company's Preferred
Stock) or any increase in the long-term debt of the Company, or any
decrease in net assets, in each case as compared with amounts shown in
the balance sheet as of the date of the latest financial statements
incorporated by reference in the Registration Statement, except in
each case for changes, increases or decreases which the Registration
Statement discloses have occurred or may occur, which were occasioned
by the declaration of dividends or which are described in such letter;
or
(c) for the latest period for which financial information is
available subsequent to the latest financial statements included or
incorporated by reference in the Prospectus, there were any decreases
in operating revenues, net income and earnings available for common
stock, as compared to the corresponding period in the prior year,
except in each case for decreases which the Registration Statement
discloses have occurred or may occur, which were occasioned by the
declaration of dividends or which are described in such letter; and
4. They have performed certain other specified procedures with
respect to certain amounts and percentages set forth in the Registration
Statement or in the documents incorporated by reference therein, as have been
requested by your counsel and approved by the Company, and have found them to be
in agreement with the records of the Company and the computations to be
arithmetically correct.
VI-2
EXHIBIT 1
NORTHWEST NATURAL GAS COMPANY
$------------
MEDIUM-TERM NOTES, SERIES B
--------, ----
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
4 World Financial ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
UBS Warburg LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Banc One Capital Markets, Inc.
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
[Insert Names of Additional Existing Agents, if any]
[Insert Name of New Agent]
Ladies and Gentlemen:
Reference is hereby made to the Distribution Agreement, dated
__________, 2002 (the "Distribution Agreement"), a copy of which has previously
been delivered to you, between Northwest Natural Gas Company, an Oregon
corporation (the "Company"), and each of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, UBS Warburg LLC, Banc One Capital Markets, Inc., U.S. Bancorp
▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc. and [Insert Names of Additional Existing Agents, if any],
with respect to the issue and sale by the Company of its First Mortgage Bonds,
designated Secured Medium-Term Notes, Series B, and its Unsecured Medium-Term
Notes, Series B (collectively, the "Securities"). Capitalized terms used herein
without definition shall have the meanings assigned to them in the Distribution
Agreement.
Subject to the terms and conditions set forth in the Distribution
Agreement, the Company hereby appoints [Insert Name of New Agent] as agent of
the Company for the purpose of soliciting and receiving offers to purchase the
Securities. In connection with such appointment, [Insert Name of New Agent] is
hereby entitled to the benefits and subject to the duties of an Agent under the
terms and conditions of the Distribution Agreement (including the Administrative
Procedures) and by its execution hereof is hereby made a party to the
Distribution Agreement. In connection with such appointment, [Insert Name of New
Agent] shall receive as of the date hereof: [To be agreed upon by the Company
and the New Agent]
Any communication under the Distribution Agreement will be made in
accordance with Section 12 of the Distribution Agreement, and if to [Insert Name
of New Agent] shall be sufficient in all respects when delivered or sent by
facsimile transmission or registered mail to [Insert Address of New Agent],
attention: [Insert Name], facsimile transmission number [Insert New Agent
Number].
This Agreement may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
If the foregoing correctly sets forth our agreement, please indicate
your acceptance hereof in the space provided for that purpose below.
Very truly yours,
Northwest Natural Gas Company
By:
----------------------------------------
Title: Senior Vice President, Finance,
and Chief Financial Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date hereof.
[INSERT NAME OF NEW AGENT]
By:
----------------------------------------
Title:
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