The Washington Water Power Company
$250,000,000
Medium-Term Notes, Series C
Distribution Agreement
_____ __, 1997
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & Incorporated
World Financial Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The Washington Water Power Company, a Washington corporation
(the "Company"), proposes to issue and sell from time to time its
Medium-Term Notes, Series C (the "Securities") in an aggregate
principal amount up to $250,000,000 and agrees with each of you
(individually, an "Agent", and collectively, the "Agents") as set
forth in this Agreement.
Subject to the terms and conditions stated herein and to the
reservation by the Company of the right to sell Securities directly on
its own behalf, the Company hereby (i) appoints each Agent as an agent
of the Company for the purpose of soliciting and receiving offers to
purchase Securities from the Company pursuant to Section 2(a) hereof
and (ii) agrees that, except as otherwise contemplated herein,
whenever it determines to sell Securities directly to any Agent as
principal, it will enter into a separate agreement, substantially in
the form of Annex I hereto (each a "Terms Agreement"), relating to
such sale in accordance with Section 2(b) hereof.
The Securities will be issued as a series under the
Company's Indenture, dated as of _______ __, 1997, to The Chase
Manhattan Bank, as trustee (the "Trustee") as it will be supplemented
by an Officer's Certificate dated ______ __, 1997 (said Indenture, as
so supplemented and as it may be amended and further supplemented
being hereinafter referred to as the "Indenture"). The Securities
shall have the maturity ranges, 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 and rights thereof
established, from time to time by the Company in accordance with the
Indenture.
1. The Company represents and warrants to, and agrees with,
each Agent that:
(a) The Company has carefully prepared in conformity with
the requirements of the Securities Act of 1933, as amended (the
"Act"), and the applicable rules and regulations of the
Securities and Exchange Commission (the "Commission") (i) a
registration statement on Form S-3 (File No. 333-______) (the
"Registration Statement") for the registration of $250,000,000 in
aggregate principal amount of its Debt Securities. The
Registration Statement has become effective and no stop order
suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been initiated
or threatened by the Commission. No Debt Securities registered
under the Registration Statement have been issued. A prospectus
supplement setting forth the terms of the Securities and of their
sale and distribution (the "Prospectus Supplement") has been or
will be so prepared and will be filed pursuant to Rule 424 under
the Act. The Registration Statement (including exhibits, but
excluding the Statement of Eligibility on Form T-1) in the form
in which it became effective, and as amended to the date hereof,
is herein referred to as the "Registration Statement"; the
prospectus included as a part of the Registration Statement, as
such prospectus may have been amended to the date hereof, is
hereinafter referred to as the "Basic Prospectus"; and the Basic
Prospectus, as supplemented by the Prospectus Supplement, is
herein referred to as the "Prospectus"; provided, however, that
(i) any reference herein to the terms "Registration Statement",
"Basic Prospectus" or "Prospectus" shall be deemed to refer to
and include the documents incorporated therein by reference
pursuant to Item 12 of Form S-3 under the Act, (ii) any reference
to any amendment or supplement to the Prospectus shall be deemed
to refer to and include any documents filed after the date of the
Prospectus pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and so incorporated by reference, (iii) any reference to the
Prospectus as amended or supplemented shall be deemed to refer to
and include the Prospectus as amended or supplemented (including
by any supplement to the Prospectus that sets forth only the
terms of a particular tranche of the Securities (a "Pricing
Supplement") filed in accordance with Section 4(a) hereof) in
relation to the Securities sold pursuant to this Agreement, in
the form filed with the Commission pursuant to Rule 424(b) under
the Act and in accordance with Section 4(a) hereof, including any
documents incorporated by reference therein as of the date of
such filing) and (iv) no prospectus supplement to the Basic
Prospectus which relates to securities of the Company other than
the Securities shall be deemed to be a part of the Basic
Prospectus or the Prospectus;
(b) The Registration Statement when it became effective
complied, and the Prospectus and any amendments or supplements
thereto will comply, in all material respects with the applicable
provisions of the Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the applicable rules and
regulations of the Commission thereunder and do not and will not,
as of the applicable effective date in the case of the
Registration Statement and any amendment thereto, and as of the
applicable date referred to in Section 4(g) hereof and as of the
applicable filing date in the case of the Prospectus and any
supplement thereto, 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 in the preparation thereof;
(c) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, complied in all material respects
with the requirements of the Act or the Exchange Act, and the
applicable rules and regulations of the Commission thereunder,
and none of such documents included an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; and any further documents so filed and incorporated
by reference in the Prospectus, or any amendment or supplement
thereto, when such documents become effective or are filed with
the Commission, as the case may be, will comply in all material
respects with the applicable requirements of the Act or the
Exchange Act, and the applicable rules and regulations of the
Commission thereunder, and will not contain an untrue statement
of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, 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 any such document in reliance upon and in conformity
with information furnished in writing to the Company by any Agent
specifically for use in the preparation thereof;
(d) Except as set forth in or contemplated by the Prospectus
as amended or supplemented, (i) since the date as of which
information is given in the Prospectus as amended or supplemented
there has not been any material adverse change in the condition
of the Company and its subsidiaries as a whole, financial or
otherwise, (ii) since the date of the Prospectus as amended or
supplemented there has not been any transaction entered into by
the Company or any subsidiary thereof which is material to the
Company and its subsidiaries as a whole other than transactions
in the ordinary course of business and (iii) neither the Company
nor any of its subsidiaries has any contingent obligation which
is material to the Company and its subsidiaries as a whole;
(e) The Securities have been duly authorized, and when
issued and delivered pursuant to this Agreement and any Terms
Agreement, and duly authenticated by the Trustee pursuant to the
Indenture, will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by
the Indenture; the Indenture has been duly authorized and
qualified under the Trust Indenture Act and constitutes a valid
and legally binding instrument; the Indenture is, and the
Securities, when authenticated, issued and delivered as
aforesaid, will be, enforceable in accordance with their
respective terms, except to the extent that enforcement thereof
may be limited by any applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other laws
affecting creditors' rights generally, by general principles of
equity (whether asserted in an action in equity or at law) and by
rules of law governing specific performance, injunctive relief,
foreclosure, receivership and other equitable remedies; and the
Indenture and the Securities of any particular tranche will conform
in all material respects to the descriptions thereof contained in
the Prospectus as amended or supplemented to relate to the Securities
of such tranche;
(f) The issue and sale of the Securities, the compliance by
the Company with all of the provisions of the Securities, the
Indenture, 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 or
assets 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, to the best of the Company's knowledge,
information or belief, any order, rule or regulation of any court
or any federal or state regulatory authority or other
governmental agency or body having jurisdiction over the Company
or 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 this Agreement, any Terms
Agreement or the Indenture, except such as have been, or will
have been prior to the Commencement Date (as defined in Section 3
hereof), obtained under the Act or the Trust Indenture Act and
such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue
Sky laws 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, and
such consents, approvals, authorizations, filings or
registrations as may be required by the Washington Utilities and
Transportation Commission, the California Public Utilities
Commission, the Idaho Public Utilities Commission and the Public
Utility Commission of Oregon, in each case in the manner
contemplated hereby;
(g) Except as set forth in or contemplated by the
Prospectus, as amended or supplemented, there are no legal or
governmental proceedings pending to which the Company or any of
its subsidiaries is a party or to which any property of the
Company or any of its subsidiaries is subject, which, if
determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a material adverse
effect on the consolidated financial position, stockholders'
equity or results of operations of the Company and its
subsidiaries, and, to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others; and
(h) Immediately after any sale of Securities by the Company
hereunder or under any Terms Agreement, the aggregate amount of
Securities which shall have been issued and sold by the Company
hereunder or under any Terms Agreement that shall have been
issued and sold pursuant to the Registration Statement will not
exceed the amount of Securities registered under the Registration
Statement.
2. (a) On the basis of the representations and warranties,
and subject to the terms and conditions herein set forth, each of the
Agents hereby severally and not jointly agrees, as agent of the
Company, to use its reasonable best efforts to solicit and receive
offers to purchase the Securities from the Company upon the terms and
conditions set forth in the Prospectus as amended or supplemented from
time to time. So long as this Agreement shall remain in effect with
respect to any Agent, the Company shall not, without the consent of
such 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 nine months to 40 years
except pursuant to this Agreement or any Terms Agreement, or except
pursuant to a private placement not constituting a public offering
under the Act or except in connection with a firm commitment
underwriting pursuant to an underwriting agreement that does not
provide for a continuous offering of medium-term debt securities.
However, the Company 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
any Agent, no commission will be payable with respect to such sale.
These provisions shall not limit Section 4(f) hereof or any similar
provisions included in any Terms Agreement.
Procedural details relating to the issue and delivery of
Securities, the solicitation of offers to purchase Securities and the
payment in each case therefor shall be as set forth in the
Administrative Procedure attached hereto as Annex II as it may be
amended from time to time by written agreement between the Agents and
the Company (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 agree to 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 Trustee
a copy of the Administrative Procedure as from time to time in effect.
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time after the Commencement Date
(as defined in Section 3), for any period of time or permanently, the
solicitation of offers to purchase the Securities. As soon as
practicable, but in any event not later than one business day in New
York City, 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.
The Company agrees to pay each Agent a commission, at the
time of settlement 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 amount
Range of Maturities of Securities sold)
------------------- -------------------
From 9 months to less than 1 year 0.125%
From 1 year to less than 18 months 0.150%
From 18 months to less than 2 years 0.200%
From 2 years to less than 3 years 0.250%
From 3 years to less than 4 years 0.350%
From 4 years to less than 5 years 0.450%
From 5 years to less than 6 years 0.500%
From 6 years to less than 7 years 0.550%
From 7 years to less than 10 years 0.600%
From 10 years to less than 15 years 0.625%
From 15 years to less than 20 years 0.700%
From 20 years to less than 30 years 0.750%
From 30 years to 40 years 0.875%
(b) Each sale of Securities to any Agent as principal shall
be made in accordance with the terms of this Agreement and (unless the
Company and such Agent shall otherwise agree in writing or orally) a
Terms Agreement which will provide for the sale of such Securities to,
and the purchase thereof by, such Agent; it being understood that
(unless the Company and such Agent shall otherwise agree in writing)
any such oral agreement relating to the sale of Securities to such
Agent as principal (i) shall be deemed to incorporate all the terms
and conditions set forth in the form of Terms Agreement attached
hereto as Annex I and (ii) shall be promptly confirmed in writing. A
Terms Agreement may also specify certain provisions relating to the
reoffering of such Securities by such Agent. The commitment of any
Agent to purchase Securities as principal, whether pursuant to any
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 shall be subject to the terms and conditions herein set
forth. Each Terms Agreement shall specify the principal amount of
Securities to be purchased by any Agent pursuant thereto, the price to
be paid to the Company for such Securities, any provisions relating to
rights of, and default by, underwriters acting together with such
Agent in the reoffering of the Securities and the time and date and
place of delivery of and payment for such Securities. Such Terms
Agreement shall also specify any requirements for opinions of counsel,
accountants' letters and officers' certificates pursuant to Section 4
hereof.
For each sale of Securities to an Agent as principal that is
not made pursuant to a Terms Agreement, the procedural details
relating to the issue and delivery of such Securities and payment
therefor shall be as set forth in the Administrative Procedure and the
Company agrees to pay such Agent a commission (or grant an equivalent
discount) as provided in Section 2(a) hereof and in accordance with
the schedule set forth therein.
Each time and date of delivery of and payment for Securities
to be purchased by an Agent as principal, whether set forth in a Terms
Agreement or in accordance with the Administrative Procedure, is
referred to herein as a "Time of Delivery."
3. The documents required to be delivered pursuant to
Section 6 hereof on the Commencement Date (as defined below) shall be
delivered to the Agents at the offices of ▇▇▇▇ & Priest LLP, ▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, at 11:00 a.m., New York City time, on
the date of this Agreement, which date and time of such delivery may
be postponed by agreement between the Agents and the Company but in no
event shall be later than the day prior to the date on which
solicitation of offers to purchase Securities is commenced or on which
any Terms Agreement is executed by the parties thereto (such time and
date being referred to herein as the "Commencement Date").
4. The Company covenants and agrees with each Agent:
(a) (i) To make no amendment or supplement to the
Registration Statement or the Prospectus (A) prior to the
Commencement Date to which any Agent shall reasonably disapprove
by notice to the Company promptly after reasonable notice thereof
or (B) after the date of any Terms Agreement or other agreement
by an Agent to purchase Securities as principal and prior to the
related Time of Delivery which shall be reasonably disapproved by
notice to the Company by any Agent party to such Terms Agreement
or so purchasing as principal promptly after reasonable notice
thereof; (ii) to prepare, with respect to any Securities to be
sold through or to such Agent pursuant to this Agreement, a
Pricing Supplement with respect to such Securities in a form
previously approved by such Agent and to file such Pricing
Supplement pursuant to Rule 424(b)(3) under the Act not later
than the close of business of the Commission on the third
business day following the date on which such Pricing Supplement
is first used; (iii) to make no amendment or supplement to the
Registration Statement or Prospectus, other than any Pricing
Supplement, at any time prior to having afforded each Agent a
reasonable opportunity to review and comment thereon; (iv) to
file in a timely manner 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 period to advise such Agent, promptly
after the Company received notices 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) 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 promptly every
reasonable effort to obtain its withdrawal; and (vi) to notify
the Agents promptly of any change in the rating assigned by any
nationally recognized statistical rating organization to any debt
securities of the Company (including the Securities) of the
Company, or the public announcement by any nationally recognized
statistical rating organization that it has under surveillance or
review, with possible negative implications, its rating of the
Securities or any such debt securities, or the withdrawal by any
nationally recognized statistical rating organization of its
rating of the Securities or any such debt securities.
(b) Promptly from time to time to take such action as such
Agent may reasonably 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;
(c) To furnish such Agent with copies of the Registration
Statement and each amendment thereto, and with copies of the
Prospectus as each time amended or supplemented, 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 under the Act, in such quantities as such
Agent may reasonably request from time to time, and with copies
of the documents incorporated by reference therein; and, if the
delivery of a prospectus is required at any time in connection
with the offering or sale of the Securities (including Securities
purchased from the Company by such Agent as principal) and if at
such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary at such time 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 as then amended or supplemented, to
so advise such Agent promptly by telephone (with confirmation 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 as then amended or supplemented or to
file any document under the Exchange Act that will correct such
statement or omission or effect such compliance; provided,
however, that, should such event relate solely to activities of
any Agent, then such Agent shall assume the expense of preparing
and furnishing any such amendment or supplement; and provided,
further, that if at such time such Agent continues to own
Securities purchased from the Company by such Agent as principal
or such Agent is otherwise 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. For the purposes of this subsection (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 thereof by an
Agent as principal, 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) complying 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, 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 or any national
securities exchange on which any class of securities of the
Company is listed and (ii) 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 with such
Agent or other agreement by such Agent to purchase Securities as
principal and continuing 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, it will not offer, sell,
contract to sell or otherwise dispose of any debt securities of
the Company in a public offering which both mature more than nine
months after such Time of Delivery and are substantially similar
to the Securities, without the prior written consent of such
Agent;
(g) That each acceptance by the Company of an offer to
purchase Securities hereunder (including any purchase by such
Agent as principal not pursuant to a Terms Agreement), and each
execution and delivery by the Company of a Terms Agreement with
such Agent, 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 such acceptance or of such Terms Agreement, as the
case may be, as though made at and 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 at and 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 each time the Registration
Statement or the Prospectus shall be amended or supplemented
(other than by a Pricing Supplement) and each time a document
filed under the Act or the Exchange Act is incorporated by
reference into the Prospectus, and each time the Company sells
Securities to such Agent as principal pursuant to a Terms
Agreement and such Terms Agreement specifies the delivery of an
opinion or opinions by ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, of New York, New
York, counsel to the Agents, as a condition to the purchase of
Securities pursuant to such Terms Agreement, the Company shall
furnish to such counsel such papers and information as they may
reasonably request to enable them to furnish to such Agent such
opinion or opinions referred to in Section 6(c) hereof;
(i) That each time the Registration Statement or the
Prospectus shall be amended or supplemented (other than by a
Pricing Supplement), each time a document filed under the Act or
the Exchange Act is incorporated by reference into the Prospectus
(except for a Current Report on Form 8-K that is filed solely for
the purpose of filing exhibits pursuant to Item 601 of Regulation
S-K, unless the Agent shall otherwise reasonably request), and
each time the Company sells Securities to such Agent as principal
pursuant to a Terms Agreement and such Terms Agreement specifies
the delivery of an opinion under this Section 4(i) as a condition
to the purchase of Securities pursuant to such Terms Agreement,
the Company shall furnish or cause to be furnished forthwith to
such Agent a written opinion of Paine, Hamblen, ▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇ LLP, of Spokane, Washington, General Counsel for the
Company, or other counsel for the Company 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 satisfactory to such Agent, to the effect
that such Agent may rely on the opinion of such counsel referred
to in Section 6(d) hereof which was last furnished to such Agent
to the same extent as though it were dated the date of such
letter authorizing reliance (except that the statements in such
last opinion shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such
date) or, in lieu of such opinion, an opinion of the same tenor
as the opinion of such counsel referred to in Section 6(d) hereof
but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date;
(j) That each time the Registration Statement or the
Prospectus shall be amended or supplemented (other than by a
Pricing Supplement), each time a document filed under the Act or
the Exchange Act is incorporated by reference into the Prospectus
(except for a Current Report on Form 8-K that is filed solely for
the purpose of filing exhibits pursuant to Item 601 of Regulation
S-K, unless any Agent shall reasonably request), and each time
the Company sells Securities to such Agent as principal pursuant
to a Terms Agreement and such Terms Agreement specifies the
delivery of an opinion under this Section 4(j) as a condition to
the purchase of Securities pursuant to such Terms Agreement, the
Company shall furnish or cause to be furnished forthwith to such
Agent a written opinion of ▇▇▇▇ & Priest LLP, of New York, New
York, counsel for the Company, or other counsel for the Company
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 satisfactory to such Agent, to
the effect that such Agent may rely on the opinion of such
counsel referred to in Section 6(e) hereof which was last
furnished to such Agent to the same extent as though it were
dated the date of such letter authorizing reliance (except that
the statements in such last opinion shall be deemed to relate to
the Registration Statement and the Prospectus as amended and
supplemented to such date), or, in lieu of such opinion, an
opinion of the same tenor as the opinion of such counsel referred
to in Section 6(e) hereof but modified to relate to the
Registration Statement and the Prospectus as amended and
supplemented to such date;
(k) That each time the Registration Statement or the
Prospectus shall be amended or supplemented, other than by a
Pricing Supplement, and each time that a document filed under the
Act or the Exchange Act is incorporated by reference into the
Prospectus, in either case to set forth financial information
included in or derived from the Company's consolidated financial
statements or accounting records, and each time the Company sells
Securities to such Agent as principal pursuant to a Terms
Agreement and such Terms Agreement specifies the delivery of a
letter under this Section 4(k) as a condition to the purchase of
Securities pursuant to such Terms Agreement, the Company shall
cause the independent certified public accountants who have
certified the financial statements of the Company and its
subsidiaries included or incorporated by reference in the
Registration Statement forthwith to furnish such Agent a letter,
dated the date of such amendment, supplement, incorporation or
Time of Delivery relating to such sale, as the case may be, in
form satisfactory to such Agent, of the same tenor as the letter
referred to in Section 6(f) 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; provided,
however, that, with respect to any financial information or other
matter, such letter may reconfirm as true and correct at such
date as though made at and as of such date, rather than repeat,
statements with respect to such financial information or other
matter made in the letter referred to in Section 6(f) hereof
which was last furnished to such Agent;
(l) That each time the Registration Statement or the
Prospectus shall be amended or supplemented (other than by a
Pricing Supplement), each time a document filed under the Act or
the Exchange Act is incorporated by reference into the Prospectus
(except for a Current Report on Form 8-K that is filed solely for
the purpose of filing exhibits pursuant to Item 601 of Regulation
S-K, unless any Agent shall otherwise reasonably request), and
each time the Company sells Securities to such Agent as principal
and the applicable Terms Agreement specifies the delivery of a
certificate under this Section 4(1) as a condition to the
purchase of Securities pursuant to such Terms Agreement, the
Company shall furnish or cause to be furnished forthwith to such
Agent a certificate, dated the date of such amendment,
supplement, incorporation or Time of Delivery relating to such
sale, as the case may be, in such form and executed by such
officers of the Company as shall be satisfactory to such Agent,
to the effect that the statements contained in the certificate
referred to in Section 6(i) hereof which was last furnished to
such Agent are true and correct at such date as though made at
and 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, in lieu of such
certificate, certificates of the same tenor as the certificates
referred to in said Section 6(i) but modified to relate to the
Registration Statement and the Prospectus as amended and
supplemented to such date;
(m) To offer to any person who has agreed to purchase
Securities as the result of an offer to purchase solicited by
such Agent the right to refuse to purchase and pay for such
Securities if, on the related settlement date fixed pursuant to
the Administrative Procedure, any condition set forth in Section
6(a), 6(g) or 6(h) 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 4(m), for the
respective judgments referred to therein of an Agent with respect
to certain matters referred to in such Sections 6(a), 6(g) and
6(h), and that such Agent shall have no duty or obligation
whatsoever to exercise the judgment permitted under such Sections
6(a), 6(g) and 6(h) on behalf of any such person);
(n) That prior to the issue and sale of Securities, the
Company will have received all consents, approvals,
authorizations, orders, registrations and qualifications of or
with any court or any federal or state regulatory authority or
other governmental agency or body having jurisdiction over the
Company or any of its properties which are legally required for
the issuance by the Company of such Securities, except for
consents, approvals, authorizations, registrations or
qualifications which may be required under the state securities
or Blue Sky laws as to which no covenant is made except as
provided in Section 4(b) hereof.
5. The Company covenants and agrees with each Agent that the
Company will pay or cause to be paid the following: (i) the fees,
disbursements 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, disbursements 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 printing, preparing by word processor or reproducing this
Agreement, any Terms Agreement, any Indenture, any Blue Sky and Legal
Investment Memoranda and any other documents in connection with the
offering, purchase, sale and delivery of the Securities; (iv) all
expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section
4(b) hereof, including fees and disbursements of counsel for the
Agents in connection with such qualification and in connection with
the Blue Sky and legal investment surveys; (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 any Trustee 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 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; (x)
all other reasonable costs, and expenses incident to the performance
of the Agents' obligations hereunder which are not otherwise
specifically provided for in this Section; and (xi) all other costs
and expenses incident to the performance of its obligations hereunder
which are not otherwise specifically provided for in this Section.
Except as provided in Sections 8 and 9 hereof, each Agent shall pay
all other expenses it incurs, including any expenses that may be
incurred pursuant to Section 4(c) hereof.
6. The obligation of any Agent, as agent of the Company, at
any time ("Solicitation Time") to solicit offers to purchase the
Securities and the obligation of any Agent to purchase Securities as
principal, pursuant to any Terms Agreement or otherwise, shall in each
case be subject, in such Agent's discretion, to the condition that all
representations and warranties and other statements of the Company
herein (and, in the case of an obligation of an Agent under a Terms
Agreement, in or incorporated in such Terms Agreement by reference)
are true and correct at and as of the Commencement Date and any
applicable date referred to in Section 4(1) hereof that is prior to
such Solicitation Time or Time of Delivery, as the case may be, and at
and as of such Solicitation Time or Time of Delivery, as the case may
be, the condition that prior to such Solicitation Time or Time of
Delivery, as the case may be, the Company shall have performed all of
its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) (i) With respect to any Securities sold at or prior to
such Solicitation Time or Time of Delivery, as the case may be,
the Prospectus as amended or supplemented (including the Pricing
Supplement) with respect to such Securities shall have been filed
or transmitted for filing with the Commission pursuant to Rule
424(b) under the Act within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 4(a) hereof; (ii) no stop order
suspending the effectiveness of the Registration Statement shall
have been issued and no proceeding for that purpose shall be
pending before, or to the knowledge of the Company or the Agent
contemplated by, the Commission; and (iii) all requests of the
Commission for additional information (to be included in the
Registration Statement or the Prospectus or otherwise) shall have
been complied with to the reasonable satisfaction of such Agent;
(b) There shall have been issued and there shall be in full
force and effect, appropriate orders of the Washington Utilities
and Transportation Commission, the California Public Utilities
Commission, the Idaho Public Utilities Commission and the Public
Utility Commission of Oregon permitting the issuance and sale of
the Securities on the terms herein set forth or contemplated, and
containing no provision reasonably unacceptable to the Agents (it
being understood that no such order in effect on the date of this
Agreement contains any such unacceptable provision);
(c) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Agents, shall have
furnished to such Agent (i) such opinion or opinions, dated the
Commencement Date, with respect to the incorporation of the
Company, the validity of the Indenture, the Securities, the
Registration Statement, the Prospectus as amended or supplemented
and other related matters as such Agent may reasonably request,
and (ii) if and to the extent requested by such Agent, with
respect to each applicable date referred to in Section 4(h)
hereof that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, an opinion or opinions, dated such
applicable date, to the effect that such Agent may rely on the
opinion or opinions which were last furnished to such Agent
pursuant to this Section 6(c) to the same extent as though it or
they were dated the date of such letter authorizing reliance
(except that the statements in such last opinion or opinions
shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date) or, in any
case, in lieu of such an opinion or opinions, an opinion or
opinions of the same tenor as the opinions or opinions referred
to in clause (i) but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to such
date; and in each case such counsel shall have received such
papers and information as they may reasonably request to enable
them to pass upon such matters. In rendering such opinion or
opinions, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ may rely, as to the incorporation
of the Company and as to all other matters governed by
Washington, California, Idaho, Montana or Oregon law, upon the
opinion of Paine, Hamblen, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ referred to
below;
(d) Paine, Hamblen, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, General
Counsel for the Company, or other counsel for the Company
satisfactory to such Agent, shall have furnished to such Agent
their written opinions, dated the Commencement Date and each
applicable date referred to in Section 4(i) hereof that is on or
prior to such Solicitation Time or Time of Delivery, as the case
may be, in form and substance satisfactory to such Agent, to the
effect set forth in Annex III.
In rendering such opinion or opinions, Paine, Hamblen,
▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ may rely as to all matters governed by
New York law and Federal laws relating to the issuance and sale
of securities upon the opinion of ▇▇▇▇ & Priest LLP referred to
below;
(e) ▇▇▇▇ & Priest LLP, counsel for the Company, or other
counsel for the Company satisfactory to such Agent, shall have
furnished to such Agent their written opinions, dated the
Commencement Date and each applicable date referred to in Section
4(j) hereof that is on or prior to such Solicitation Time or Time
of Delivery, as the case may be, in form and substance
satisfactory to such Agent, to the effect set forth in Annex IV.
In rendering such opinion or opinions, ▇▇▇▇ & Priest LLP may
rely, as to the incorporation of the Company and as to all other
matters governed by Washington, California, Idaho, Montana or
Oregon law, upon the opinion of Paine, Hamblen, ▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇ referred to above;
(f) Not later than 11:00 a.m., New York City time, on the
Commencement Date and on each applicable date referred to in
Section 4(k) hereof that is on or prior to such Solicitation Time
or Time of Delivery, as the case may be, the independent
certified public accountants who have certified the financial
statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement shall
have furnished to such Agent a letter, dated the Commencement
Date or such applicable date, as the case may be, in form and
substance satisfactory to such Agent, to the effect set forth in
Annex V hereto;
(g) Except as set forth in or contemplated by the
Prospectus, as amended or supplemented, (A) since the respective
dates as of which information is given in the Prospectus, as
amended or supplemented, there has not been any material adverse
change in the condition of the Company and its subsidiaries as a
whole, financial or otherwise, (B) since such dates there has not
been any transaction entered into by the Company or any
subsidiary thereof which is material to the Company and its
subsidiaries as a whole other than transactions in the ordinary
course of business, and (C) neither the Company nor any of its
subsidiaries has any contingent obligation which is material to
the Company and its subsidiaries as a whole, and the effect of
which, in any such case, is in the reasonable judgment of such
Agent, so material and adverse as to make it impracticable or
inadvisable to proceed with the solicitation by such Agent of
offers to purchase Securities from the Company or the purchase by
such Agent of Securities from the Company as principal, as the
case may be, on the terms and in the manner contemplated in the
Prospectus as amended or supplemented;
(h) There shall not have occurred any of the following: (i)
a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) trading of any
securities of the Company shall have been suspended or limited on
any securities exchange or in any over-the-counter market; (iii)
a general moratorium on commercial banking activities in New York
declared by either Federal or New York State authorities; (iv)
the outbreak of major hostilities or the material escalation of
existing hostilities so as to result in major hostilities, or the
declaration by the United States of a national emergency or war,
or other national or international calamity or crisis; or (v) any
downgrading in the rating accorded the Company's debt securities
by any "nationally recognized statistical rating organization"
(as that term is defined by the Commission for purposes of Rule
436(g)(2) under the Act) or the placing by any such organization
of the Company's outstanding debt securities or preferred stock
on what is commonly termed a "watch list" for possible
downgrading; provided, however, that in the case of any event
described in clause (iv) or clause (v) above, the effect of such
event, in the reasonable judgment of such Agent, shall make it
impracticable or inadvisable to proceed with the solicitation of
offers to purchase Securities, the purchase of Securities from
the Company as principal, pursuant to the applicable Terms
Agreement or otherwise, or the enforcement of contracts for the
sale of Securities, as the case may be, on the terms and in the
manner contemplated in the Prospectus as amended or supplemented;
and
(i) The Company shall have furnished or caused to be
furnished to such Agent certificates of officers of the Company
dated the Commencement Date and each applicable date referred to
in Section 4(1) hereof that is on or prior to such Solicitation
Time or Time of Delivery, as the case may be, in such form and
executed by such officers of the Company as shall be satisfactory
to such Agent, as to the accuracy of the representations and
warranties of the Company herein at and as of the Commencement
Date or such applicable date, as the case may be, as to the
performance by the Company in all material respects of all of its
obligations hereunder to be performed at or prior to the
Commencement Date or such applicable date, as the case may be, as
to the matters set forth in subsections (a) and (g) of this
Section 6, and as to such other matters as such Agent may
reasonably request.
7. The obligation of the Company to sell and deliver
Securities, pursuant to any Terms Agreement or otherwise, shall in
each case be subject to the following conditions:
(a) On the Settlement Date for the Securities or Time of
Delivery, as the case may be, 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 or the Agent
contemplated by, the Commission.
(b) At or before the Settlement Date or Time of Delivery, as
the case may be, there shall have been issued, and there shall be
in full force and effect, appropriate orders of the Washington
Utilities and Transportation Commission, the California Public
Utilities Commission, the Idaho Public Utilities Commission and
the Public Utility Commission of Oregon permitting the issuance
and sale of the Securities on the terms herein set forth or
contemplated, and containing no provision reasonably unacceptable
to the Company (it being understood that no such order in effect
on the date of this Agreement contains any such unacceptable
provision).
If any of the conditions specified above in this Section
shall not have been fulfilled, the Terms Agreement may be terminated
by the Company without liability on the part of any party to any other
party, except for the obligation of the Company to pay certain
expenses to the extent provided for in Sections 6(h) and 6(i) hereof
and except for any liability under Section 8 hereof.
8. (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 losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, the Registration Statement, the
Prospectus, the Prospectus as amended or supplemented or any other
prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading;
and will reimburse such Agent for any legal or other expenses
reasonably incurred by it 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 arises out of or
is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement, the Prospectus, the Prospectus as amended or
supplemented or any other prospectus relating to the Securities, or
any such amendment or supplement, in reliance upon and in conformity
with written information furnished to the Company by such Agent
specifically for use in the preparation thereof; and provided,
further, that, the indemnity agreement contained in this
subsection (a) shall not inure to the benefit of any Agent on account
of any such losses, claims, damages or liabilities (or actions in respect
thereof) arising from the sale of the Securities by or through such Agent
to any person if a copy of the Prospectus as it then may be amended or
supplemented (exclusive of the Incorporated Documents) shall not have
been given or sent to such person by such Agent with or prior to the
written confirmation of the sale involved to the extent that (i) the
Prospectus as so amended or supplemented would have cured the defect
in such document giving rise to such losses, claims, damages or
liabilities, (ii) sufficient quantities of the Prospectus as so amended
or supplemented were timely made available to such Agent and (iii) such
Agent shall not have reasonably objected to such amendment or supplement
pursuant to Section 4(a) hereof.
(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 any Preliminary
Prospectus, the Registration Statement, the Prospectus, the Prospectus
as amended or supplemented or any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement, the Prospectus, the Prospectus
as amended or supplemented or any other prospectus relating to the
Securities, or any such amendment or supplement, in reliance upon and
in conformity with written information furnished to the Company by
such Agent specifically for use in the preparation thereof; and will
reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending
any such loss, claim, damage, liability or action.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be
brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party
shall not be liable to such indemnified party under such subsection
for any legal expenses of other counsel or any other expenses, in each
case subsequently incurred by such indemnified party, in connection
with the defense thereof other than reasonable costs of investigation.
In any such proceeding, any indemnified party shall have the right to
retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of
both parties by the same counsel would be inappropriate due to actual
or potential differing interests between them.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and each Agent on the other from the
offering of the Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates and the relative
fault of the Company on the one hand and the Agent on the other in
connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. 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 by the Company bear to
the total commissions or discounts received by such Agent in respect
thereof. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading relates to information supplied by
the 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
Company and each Agent agree that it would not be just and equitable
if contribution pursuant to this subsection (d) were determined by per
capita allocation (even if all Agents were treated as one entity for
such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall,
except as limited by subsection (c) above, be deemed to include any
legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this subsection (d), an Agent
shall not be required to contribute any amount in excess of the amount
by which the total public offering price at which the Securities
purchased by or through it were sold exceeds the amount of any damages
which such Agent has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
obligations of each of the Agents under this subsection (d) to
contribute are several in proportion to the respective purchases made
by it or through it to which such loss, claim, damage or liability (or
action in respect thereof) relates 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;
and 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. (a) 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.
(b) 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. 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. 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 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,
(x) this Agreement shall remain in full force and effect with respect
to any Agent as to which such suspension or termination has not
occurred, (y) this Agreement shall remain in full force and effect
with respect to 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 and (z) in any event, this
Agreement shall remain in full force and effect insofar as the fourth
paragraph of Section 2(a), Section 4(d), Section 4(e), Section 5,
Section 8, Section 9 and Section 10 hereof are concerned.
12. 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
shall be sufficient in all respects when delivered or sent by
facsimile transmission or registered mail to ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Facsimile Transmission No. (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: Manager - Continuously Offered Products, Telephone No.
(212) ▇▇▇- ▇▇▇▇, with a copy to ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Facsimile Transmission No. (▇▇▇) ▇▇▇-▇▇▇▇, Attention:
▇▇▇▇▇ ▇▇▇▇▇▇, Investment Banking Information Center, Telephone No.
(▇▇▇) ▇▇▇-▇▇▇▇, and if to ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated shall be sufficient in all respects when delivered or
sent by facsimile transmission or registered mail to ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Facsimile Transmission No. (212) 449-____,
Attention: _____________, Telephone No. (212) 449-____, and if to
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. shall be sufficient in all respects when delivered
or sent by facsimile transmission or registered mail to ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Facsimile Transmission No. (212)
___-____, Attention: ______________, Telephone No. (212) ___-____, and
if to the Company shall be sufficient in all respects when delivered
or sent by facsimile transmission or registered mail to ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer,
Facsimile Transmission No. (▇▇▇) ▇▇▇-▇▇▇▇, Telephone No. (509)
▇▇▇-▇▇▇▇.
13. This Agreement and any Terms Agreement shall be binding
upon, and inure solely to the benefit of, each Agent and the Company,
and to the extent provided in Section 8, Section 9 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 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
merely of such purchase.
14. Time shall be of the essence in this Agreement and any Terms
Agreement. As used herein, the term "business day" shall mean any day
when the office of the Commission in Washington, D.C. is open for
business.
15. THIS AGREEMENT AND ANY TERMS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
16. This 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.
If the foregoing is in accordance with your understanding, please
sign and return to us four counterparts hereof, whereupon this letter
and the acceptance by each of you thereof shall constitute a binding
agreement between the Company and each of you in accordance with its
terms.
Very truly yours,
THE WASHINGTON WATER POWER COMPANY
By:_______________________________
Title:
Accepted in New York, New York
as of the date hereof:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By:_______________________________
Title:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
By:_______________________________
Title:
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By:_______________________________
Title:
ANNEX I
The Washington Water Power Company
Medium-Term Notes, Series C
Terms Agreement
---------------
__________________, 19__
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
World Financial Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The Washington Water Power Company (the "Company") proposes,
subject to the terms and conditions stated herein and in the
Distribution Agreement, dated _____ __, 1997 (the "Distribution
Agreement"), between the Company on the one hand and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated, ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
and ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. (the "Agents") on the other, to issue and sell
to [▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated] [▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇
& ▇▇▇▇▇ Incorporated] [▇▇▇▇▇ ▇▇▇▇▇▇ Inc.] the securities specified in
the Schedule hereto (the "Purchased Securities"). 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 in its
entirety, and shall be deemed to be part of this Terms Agreement to
the same extent as if such provisions had been set forth in full
herein. Nothing contained herein or in the Distribution Agreement
shall make any party hereto an agent of the Company or make such party
subject to the provisions therein relating to the solicitation of
offers to purchase securities from the Company, solely by virtue of
its execution of this Terms Agreement. Each of the representations and
warranties set forth therein shall be deemed to have been made at and
as of the date of this Terms Agreement, except that each
representation and warranty in Section 1 of the Distribution Agreement
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 to relate to
the Purchased Securities.
An amendment to the Registration Statement, or a supplement
to the Prospectus, as the case may be, relating to the Purchased
Securities, in the form heretofore delivered to you is now proposed to
be filed with the Commission.
Subject to the terms and conditions set forth herein and in
the Distribution Agreement incorporated herein by reference, the
Company agrees to issue and sell to [▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated] [▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated] [▇▇▇▇▇ ▇▇▇▇▇▇
Inc.] and [▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated] [▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated] [▇▇▇▇▇ ▇▇▇▇▇▇ Inc.] agree[s] 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, and upon
acceptance hereof by you this letter and such acceptance hereof,
including those provisions of the Distribution Agreement incorporated
herein by reference, shall constitute a binding agreement between you
and the Company.
THE WASHINGTON WATER POWER COMPANY
By:____________________________
Accepted in New York, New York,
as of the date hereof:
[▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By:________________________________
Title:]
[▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
By:________________________________
Title:]
[▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By:________________________________
Title:]
Schedule to Annex I
Title of Purchased Securities:
------------------------------
Medium-Term Notes, Series C
Aggregate Principal Amount:
---------------------------
$
[Price to Public:]
Purchase Price by: [▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated] [▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated] [▇▇▇▇▇ ▇▇▇▇▇▇ Inc.]
% of the principal amount of the Purchased Securities [,
plus accrued interest from to ] [and accrued amortization, if any,
from to ]
Method of and Specified Funds for Payment of Purchase Price:
------------------------------------------------------------
[By certified or official bank check or checks, payable to
the order to 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]
Time of Delivery:
-----------------
Closing Location:
-----------------
Maturity:
---------
Interest Rate:
--------------
%
Interest Payment Dates:
-----------------------
[months and dates]
Documents to Delivered:
-----------------------
The following documents referred to in the Distribution
Agreement shall be delivered as a condition to the Closing:
[(1) The opinion or opinions of counsel to the Agents
referred to in Section 4(h).]
[(2) The opinion of counsel to the Company referred to
in Section 4(i).]
[(3) The opinion of counsel to the Company referred to
in Section 4(j).]
[(4) The accountants' letter referred to in Section
4(k).]
[(5) The officers' certificate referred to in Section
4(1).]
Other provisions (including Syndicate Provisions, if applicable):
-----------------------------------------------------------------
ANNEX II
The Washington Water Power Company
Administrative Procedure
------------------------
This Administrative Procedure relates to the Securities
defined in the Distribution Agreement, dated _____ __, 1997 (the
"Distribution Agreement"), between The Washington Water Power Company
(the "Company") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. (the
"Agents"), to which this Administrative Procedure is attached as Annex
II. Defined terms used herein and not defined herein shall have the
meanings given such terms in the Distribution Agreement, the
Prospectus (as defined therein), as amended or supplemented, or the
Indenture referred to below.
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 agree as provided in Section 2(b) of the Distribution
Agreement, in which case the procedures to be followed in respect of
the settlement of such sale will be as set forth below. 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."
The Securities will be issued under the Company's Indenture,
dated as of ____ _, 1997, to The Chase Manhattan Bank, as trustee (the
"Trustee") as it will be supplemented by an Officer's Certificate
dated _______ __, 1997 (such Indenture, as so supplemented and as it
may be amended and further supplemented, being hereinafter referred to
as the "Indenture"). The Chase Manhattan Bank ("Chase") will act as
paying agent for the payment of principal and of premium, if any, and
interest on the Securities, and will perform in various capacities
unless otherwise specified by the Company or agreed by the parties,
the other duties specified herein.
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.
Each tranche of the Securities will be represented entirely
by either a Global Security (as defined below) delivered to Chase, as
agent for The Depository Trust Company ("DTC"), and recorded in the
book-entry system maintained by DTC (a "Book-Entry Security") or by a
certificate(s) issued as a registered Security or Securities delivered
to the holder(s) thereof or a person(s) designated by such holder(s)
(a "Certificated Security"). An owner of a Book-Entry Security will
not be entitled to receive a certificate representing such a Security
except under the limited circumstances described in the Prospectus. An
owner of a Certificated Security will not be entitled to become in
lieu thereof the owner of a Book-Entry Security.
Administrative procedures and specific terms of the offering
are explained below. Certificated Securities will be issued in
accordance with the administrative procedures set forth in Part I
hereof and Book-Entry Securities will be issued in accordance with the
administrative procedures set forth in Part II hereof. Administrative
responsibilities and record-keeping functions not performed by Chase
or DTC will be performed by the Company's Treasurer or its Assistant
Treasurer.
PART I: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED SECURITIES
Posting Rates by Company:
-------------------------
The Company and the Agents will discuss from time to time
the rates of interest per annum to be borne by and the maturity of
Certificated Securities that may be sold as a result of the
solicitation of offers by an Agent. The Company may establish interest
rates and maturities for an offering period ("posting") which shall,
at all times, be within the limitations set forth by the Company's
Board of Directors and in the orders of the Washington Utilities and
Transportation Commission ("WUTC"), the California Public Utilities
Commission ("CPUC"), the Idaho Public Utilities Commission ("IPUC")
and the Public Utility Commission of Oregon ("OPUC") applicable to the
issuance and sale of the Securities. If the Company decides to change
already posted rates, it will promptly advise the Agents to suspend
solicitation of offers until the new posted rates have been
established with the Agents.
Acceptance of Offers by Company:
--------------------------------
Each Agent will promptly advise the Company by telephone or
other appropriate means of all reasonable offers to purchase
Certificated Securities, other than those rejected by such Agent. Each
Agent may, in its discretion reasonably exercised, reject any offer
received by it in whole or in part. Each Agent also may make offers to
the Company to purchase Certificated Securities as a Purchasing Agent.
The Company will have the sole right to accept offers to purchase
Certificated 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 Certificated Securities. If the Company
accepts as offer to purchase Certificated Securities, it will confirm
such acceptance in writing to the Selling Agent or Purchasing Agent,
as the case may be, and Chase.
Communication of Sale Information to Company by Selling Agent:
--------------------------------------------------------------
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) Whether the Security is a Certificated Security or a
Book-Entry Security;
(2) Principal amount of Certificated Securities to be
purchased;
(3) Interest rate, interest payment dates, including
without limitation all necessary information with
respect to Floating Rate Notes, and initial interest
payment date;
(4) Stated Maturity Date;
(5) Issue Price;
(6) Selling Agent's commission or Purchasing Agent's
discount or commission, as the case may be;
(7) Net proceeds to the Company;
(8) Settlement Date (Original Issue Date);
(9) If a redeemable Certificated Security, such of the
following as are applicable:
(a) Initial Redemption Date;
(b) Initial Redemption Price (% of par);
(c) Amount (% of par) that the Redemption Price shall
decline (but not below par) ("Reduction
Percentage") and the dates on which such
Redemption Price shall decline after the Initial
Redemption Date; and
(d) Redemption Limitation Date.
(10) Name, address and taxpayer identification number of the
registered owner;
(11) Denomination of certificates to be delivered at
Settlement; and
(12) All other information necessary to complete the form of
Security prior to its authentication and delivery.
Preparation of Pricing Supplement by Company:
---------------------------------------------
If the Company accepts an offer to purchase a Certificated
Security, it will prepare a Pricing Supplement. The Company will
arrange to have ten Pricing Supplements filed with the Commission not
later than the close of business of the Commission on the third
Business Day following the date on which such Pricing Supplement is
first used and will supply at least ten copies of such Pricing
Supplement to the Selling Agent or Purchasing Agent, as the case may
be. In addition, the Company will file as required copies of the
Pricing Supplement with the applicable state regulatory authorities
concurrently with the filing of the Pricing Supplement with the
Commission.
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 Certificated
Security prior to or together with the earlier of the delivery to such
purchaser or its agent of (a) the confirmation of sale or (b) the
Certificated Security.
Date of Settlement:
-------------------
The receipt by the Company of immediately available funds in
payment for a Certificated Security shall constitute "Settlement" with
respect to such Certificated Security. All orders accepted by the
Company will be settled on a date (the "Settlement Date") which is the
third Business Day after the date of acceptance of such offer, unless
the Company and the purchaser agree to Settlement (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, provided that such day shall be
a Business Day.
Instruction from Company to Trustee for Preparation of Certificated
-------------------------------------------------------------------
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 Trustee by Company Order by facsimile
transmission or other acceptable written means.
The Company will instruct the Trustee by Company Order by
facsimile transmission or other acceptable written means to
authenticate and deliver the Certificated 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 Company of the offer
to purchase Certificated Securities in which case such instruction
will be given by the Company to the Trustee by 11:00 a.m., New York
City time.
Preparation and Delivery of Securities by Trustee and Receipt of
----------------------------------------------------------------
Payment Therefor:
-----------------
The Trustee will prepare each Certificated Security and
appropriate receipts that will serve as the documentary control of the
transaction.
In the case of a sale of Certificated Securities to a
purchaser solicited by an Agent, the Trustee will, by 2:15 p.m., New
York City time, on the Settlement Date, deliver the Certificated
Securities to the Selling Agent, at the address listed below, for the
benefit of the purchaser of such Certificated Securities against
delivery by the Selling Agent of a receipt therefor. On the Settlement
Date the Selling Agent will deliver payment for such Certificated
Securities in immediately available funds to the Company's account at
a bank designated by the Company and notified by the Company to the
Selling Agent at least three days prior to the Settlement Date in an
amount equal to the issue price of the Certificated Securities less
the Selling Agent's commission. Any monies received by an Agent from a
purchaser of Securities in payment of the purchase price of such
Securities from the time the Trustee delivers the Securities to the
Selling Agent to the time the Agent delivers payment for such
Securities to the Company's account, as provided above, shall be held
by such Agent, as agent of the Company.
In the case of a sale of Certificated Securities to a
Purchasing Agent, the Trustee will, by 2:15 p.m., New York City time,
on the Settlement Date, deliver the Certificated Securities to the
Purchasing Agent against delivery by the Purchasing Agent of a receipt
therefor. On the Settlement Date, the Purchasing Agent will deliver
payment for such Certificated Securities in immediately available
funds, or otherwise pursuant to the Terms Agreement, to the account of
the Company as designated in the preceding paragraph in an amount
equal to the issue price of the Certificated Securities less the
Purchasing Agent's discount.
Failure of Purchaser to Pay Selling Agent:
------------------------------------------
If a purchaser (other than a Purchasing Agent) fails to make
payment to the Selling Agent for a Certificated Security, the Selling
Agent will promptly notify the Trustee and the Company thereof by
telephone (promptly confirmed in writing) or by facsimile transmission
or by other acceptable written means. The Selling Agent will
immediately return the Certificated Security to the Trustee.
Immediately upon receipt of such Certificated Security by the Trustee,
the Company will return to the Selling Agent the amount previously
paid to the Company in respect of such Certificated Security. The
Company will, in addition, reimburse the Selling Agent on an equitable
basis for its loss of the use of funds during the period when they
were credited to the account of the Company; provided, however, that
the Selling Agent shall be entitled to no reimbursement hereunder if
funds are returned on the day on which such funds had been previously
credited to the account of the Company such that the Selling Agent is
afforded a reasonable opportunity to invest such funds at an overnight
rate on such day; and provided further that if the Selling Agent is
denied the use of such funds due to its failure to return the relevant
Certificated Security to the Trustee in a timely manner it shall only
be entitled to reimbursement hereunder in an amount equal to the
amount that would have been earned on such funds had such funds been
on deposit at an overnight rate during the period between their credit
to the account of the Company and their reimbursement to the Agent.
The Trustee will cancel the Certificated Security in respect
of which the failure occurred, make appropriate entries in its records
and, unless otherwise instructed by the Company, dispose of the
Certificated Security.
Delivery of the Certificated Securities:
----------------------------------------
Unless otherwise notified by any Agent to the Trustee, the
Trustee shall deliver the Certificated Securities in accordance with
the procedures set forth above to any Agent (as the case may be) at
the following addresses:
PART II: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY SECURITIES
In connection with the qualification of the Book-Entry
Securities for eligibility in the book-entry system maintained by DTC,
Chase will perform the custodial, document control and administrative
functions described below, in accordance with its respective
obligations under a Letter of Representations from the Company and
Chase to DTC, dated the date hereof, and a Medium-Term Note
Certificate Agreement between Chase and DTC, dated as of December 2,
1988 ("Certificate Agreement"), and its obligations as a participant
in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Posting Rates by Company:
-------------------------
The Company and the Agents will discuss from time to time
the rates of interest per annum to be borne by and the maturity of
Book-Entry Securities that may be sold as a result of the solicitation
of offers by an Agent. The Company may establish interest rates and
maturities for an offering period ("posting") which shall, at all
times, be within the limitations set forth in the orders of the WUTC,
CPUC, IPUC and OPUC applicable to the issuance and sale of the
Securities. If the Company decides to change already posted rates, it
will promptly advise the Agents to suspend solicitation of offers
until the new posted rates have been established with the Agents.
Acceptance of Offers by Company:
--------------------------------
Each Agent will promptly advise the Company by telephone or
other appropriate means of all reasonable offers to purchase
Book-Entry Securities, other than those rejected by such Agent. Each
Agent may, in its discretion reasonably exercised, reject any offer
received by it in whole or in part. Each Agent also may make offers to
the Company to purchase Book-Entry Securities as a Purchasing Agent.
The Company will have the sole right to accept offers to purchase
Book-Entry 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 Book-Entry Securities. If the Company accepts
an offer to purchase Book-Entry Securities, it will confirm such
acceptance in writing to the Selling Agent or Purchasing Agent, as the
case may be, and Chase.
Communication of Book-Entry Information to the Company by Selling
-----------------------------------------------------------------
Agent and 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 promptly, but in no event later than the time set forth
below under "Settlement Procedure Timetable", the following details of
the terms of such offer (the "Book-Entry Information") to the Company
by telephone (confirmed in writing) or by facsimile transmission or
other acceptable written means:
(1) Whether the Security is a Certificated Security or a
Book-Entry Security;
(2) Principal amount of Book-Entry Securities to be
purchased;
(3) Interest rate, interest payment dates, including
without limitation all necessary information with
respect to Floating Rate Notes, and initial interest
payment date;
(4) Stated Maturity Date;
(5) Issue Price;
(6) Selling Agent's commission or Purchasing Agent's
discount or commission, as the case may be;
(7) Net proceeds to the Company;
(8) Settlement Date (Original Issue Date);
(9) If a redeemable Book-Entry Security, such of the
following as are applicable:
(a) Initial Redemption Date;
(b) Initial Redemption Price (% of par);
(c) Amount (% of par) that the Redemption Price shall
decline (but not below par) ("Reduction
Percentage") and the dates on which such
Redemption Price shall decline after the Initial
Redemption Date; and
(d) Redemption Limitation Date.
(10) Exact name in which the Book-Entry Security is to be
registered, if other than Cede & Co.;
(11) Denomination of certificates to be delivered at
Settlement; and
(12) All other information necessary to complete the form of
Security prior to its authentication and delivery.
B. The Company will advise Chase by Company Order in writing
or by facsimile or electronic transmission of the information set
forth in Settlement Procedure "A" above, and the name of such Agent.
Chase will assign a CUSIP number to the Global Security representing
such Book-Entry Security and will notify the Company by telephone of
such CUSIP number as soon as practicable.
▇. ▇▇▇▇▇ will enter a pending deposit message through DTC's
Participant Terminal System, providing the following settlement
information to DTC's Underwriting Department, such Agent and Standard
& Poor's Corporation:
(1) The applicable Book-Entry Information set forth in
Settlement Procedure A;
(2) Identification numbers of the participant accounts
maintained by DTC on behalf of Chase or the Agent,
as the case may be;
(3) Identification as a Book-Entry Security;
(4) Initial Interest Payment Date for such Book-Entry
Security and amount of interest payable on such
Interest Payment Date;
(5) CUSIP number of the Global Security representing
such Book-Entry Security; and
(6) Whether such Global Security will represent any
other Book-Entry Security (to the extent known at
such time).
D. The Trustee will complete and authenticate the Global
Security representing such Security, the form of which was previously
approved by the Company, the Agents and the Trustee.
E. DTC will credit such Book-Entry Security to Chase's
participant account at DTC.
▇. ▇▇▇▇▇ will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC to (i) debit such
Book-Entry Security to Chase's participant account and credit such
Book-Entry Security to such Agent's participant account and (ii) debit
such Agent's settlement account and credit Chase's settlement account
for an amount equal to the price of such Book-Entry Security less such
Agent's commission. The entry of such a deliver order shall constitute
a representation and warranty by Chase to DTC that (a) the Global
Security representing such Book-Entry Security has been issued and
authenticated and (b) Chase is holding such Global Security pursuant
to the Certificate Agreement.
G. Such Agent will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC (i) to debit such
Book-Entry Security to such Agent's participant account and credit
such Book-Entry Security to the participant accounts of the
Participants with respect to such Book-Entry Security and (ii) to
debit the settlement accounts of such Participants and credit the
settlement account of such Agent for an amount equal to the price of
such Book-Entry Security.
H. Transfers 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. Upon confirmation of receipt of funds, Chase will
transfer to a bank account designated by the Company, in immediately
available funds, the amount transferred to Chase in accordance with
Settlement Procedure F.
J. Upon request, Chase will send to the Company a statement
setting forth the principal amount of Book-Entry Securities
outstanding as of that date under the Indenture.
K. Such Agent will confirm the purchase of such Book-Entry
Security to the purchaser either by transmitting to the Participants
with respect to such Book-Entry Security a confirmation order or
orders through DTC's institutional delivery system or by mailing a
written confirmation to such purchaser.
DTC will, upon request of the Company or Chase, promptly
furnish to the Company or Chase a list of the names and addresses of
the participants for whom DTC has credited Book-Entry Securities.
Preparation of Pricing Supplement by Company:
---------------------------------------------
If the Company accepts an offer to purchase a Book-Entry
Security, it will prepare a Pricing Supplement. The Company will
arrange to have the Pricing Supplements filed with the Commission not
later than the close of business of the Commission on the third
Business Day following the date on which such Pricing Supplement is
first used or will arrange for such Pricing Supplement to be
transmitted to the Commission by a means reasonably calculated to
result in filing by such time and will supply at least ten copies of
such Pricing Supplement to the Selling Agent or Purchasing Agent, as
the case may be. In addition, the Company will file as required copies
of the Pricing Supplement with the applicable state regulatory
authorities concurrently with the filing of the Pricing Supplement
with the Commission.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
----------------------------------------------------------------------
The Selling Agent will deliver to the purchaser of a
Book-Entry 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
Book-Entry Security prior to or together with the earlier of the
delivery to such purchaser or its agent of (a) the confirmation of
sale or (b) the Book-Entry Security.
Date of Settlement:
-------------------
The receipt by the Company of immediately available funds in
payment for a Book-Entry Security shall constitute "Settlement" with
respect to such Book-Entry Security. All orders accepted by the
Company will be settled on a date (the "Settlement Date") which is the
third Business Day after the date of acceptance of such offer, unless
the Company and the purchaser agree to settlement on any other
Business Day after the acceptance of such offer in each case pursuant
to the Settlement Procedures Timetable set forth below.
Settlement Procedures Timetable:
--------------------------------
For orders of Book-Entry Securities solicited by a Selling
Agent and accepted by the Company for Settlement on the first Business
Day after the sale date, Settlement Procedures A through J set forth
above 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-B 11 AM on the sale date
C 2 PM on the sale date
D 9 AM on the Settlement Date
E 10 AM on the Settlement Date
F 2 PM on the Settlement Date
G 4:45 PM on the Settlement Date
H-J 5 PM on the Settlement Date
If a sale is to be settled more than one Business Day after
the sale date, (i) Settlement Procedure A shall be completed by 5 PM
on the Business Day following the sale date or 11 AM on the Business
Day prior to the Settlement Date, whichever is earlier, and (ii)
Settlement Procedures B and C shall be completed as soon as
practicable but no later than 2 PM on the Business Day prior to the
Settlement Date.
Settlement Procedure H is subject to extension in accordance
with any extension of Fedwire closing deadlines and in other events
specified in SDFS operating procedure in effect on the Settlement
Date.
If Settlement of a Book-Entry Security is rescheduled or
canceled, the Company will instruct Chase to deliver to DTC a PTS
cancellation message to such effect by no later than 12 Noon and on
the Business Day immediately preceding the scheduled Settlement Date
and Chase will enter such order by 2 PM on such Business Day through
DTC's Participation Terminal System.
The Company will, as soon as practicable after the trade
date for a Global Security (but no later than the dates and times, if
any, specified in the Indenture), cause to be delivered to the Trustee
an executed original of the Company Order for such Global Security as
well as all other documents required to be delivered under the
Indenture in connection with the issuance of such Global Security,
unless already delivered.
Failure to Settle
-----------------
If Chase has not entered an SDFS deliver order with respect
to a Book-Entry Security pursuant to Settlement Procedure F, the
Company may instruct Chase to deliver to DTC, through DTC's
Participant Terminal System, as soon as practicable, a withdrawal
message instructing DTC to debit such Book-Entry Security to Chase's
participant account. DTC will process the withdrawal message, provided
that Chase's participant account contains a principal amount of the
Global Security representing such Book-Entry Security that is at least
equal to the principal amount to be debited. If a withdrawal message
is processed with respect to all the Book-Entry Securities represented
by a Global Security, Chase will ▇▇▇▇ such Global Security "canceled",
make appropriate entries in Chase's records and send such canceled
Global Security to the Company. The CUSIP number assigned to such
Global Note shall, in accordance with CUSIP Service Bureau procedures,
be canceled and not immediately reassigned. If a withdrawal message is
processed with respect to less than the entire principal amount of the
Book-Entry Securities represented by a Global Security, Chase will
exchange such Global Security for two Global Securities, one of which
shall represent the Book-Entry Security or Securities for which a
withdrawal message has been processed and shall be canceled
immediately after issuance and the other of which shall represent the
Book-Entry Security previously represented by the surrendered Global
Security with respect to which a withdrawal message has not been
processed and shall bear the CUSIP number of the surrendered Global
Security.
If the purchase price for any Book-Entry Security is not
timely paid to the Participants with respect to such Book-Entry
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 Agent for such Book-Entry Security
may enter SDFS deliver orders through DTC's Participant Terminal
System debiting such Book-Entry Security to such Participant's account
and crediting such Book-Entry Security to such Agent's participant
account and then debiting such Book-Entry Security to such Agent's
participant account and crediting such Book-Entry Security to Chase's
participant account, and shall notify the Company and Chase thereof.
Thereafter, Chase will (i) immediately notify the Company of such
order, once Chase has confirmed that such Book-Entry Security has been
credited to its participant account, and the Company shall transfer to
such Agent funds available for immediate use in an amount equal to the
price of such Book-Entry Security which was previously credited to the
account of the Company in accordance with Settlement Procedure I, and
(ii) 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 Agent in the
performance of its obligations hereunder or under the Distribution
Agreement, the Company will reimburse the Agent on an equitable basis
for its loss of the use of funds during the period when they were
credited to the account of the Company; provided, however, that the
Selling Agent shall be entitled to no reimbursement hereunder if funds
are returned on the day on which such funds had been previously
credited to the account of the Company such that the Selling Agent is
afforded a reasonable opportunity to invest such funds at an overnight
rate on such day; and provided further that if the Selling Agent is
denied the use of such funds due to its failure to return the relevant
Security to the Trustee in a timely manner it shall only be entitled
to reimbursement hereunder in an amount equal to the amount that would
have been earned on such funds had such funds been on deposit at an
overnight rate during the period between their credit to the account
of the Company and their reimbursement to the Agent.
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 one or more, but not all,
of the Book-Entry Securities to have been represented by a Global
Security, the Trustee will provide, in accordance with Settlement
Procedure D for the authentication and issuance of a Global Security
representing the other Book-Entry Securities to have been represented
by such Global Security and will make appropriate entries in its
records.
ANNEX III
[FORM OF OPINION OF PAINE, HAMBLEN, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇]
-------- --, ----
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This opinion is being delivered to you pursuant to Section
___ of the Distribution Agreement, dated ______ __, 199_ (the
"Distribution Agreement"), between you as Agents and The Washington
Water Power Company, a Washington corporation (the "Company"),
relating to the issuance and sale from time to time by the Company of
up to $250,000,000 in aggregate principal amount of its Medium-Term
Notes, Series C (the "Notes"), to be issued under an Indenture, dated
as of _______ __, 199_, by and between the Company and The Chase
Manhattan Bank, as trustee (the "Trustee").
Capitalized terms used herein but not otherwise defined
herein shall have the meaning ascribed to them in the Distribution
Agreement. The Indenture (including the Officer's Certificate
establishing the terms of the Notes) and the Notes are sometimes
collectively referred to herein as the "Company Documents."
In connection with rendering this opinion, we have examined,
or are generally familiar with, the following: (a) the Restated
Articles of Incorporation, as amended, and the Bylaws, as amended, of
the Company; (b) the Distribution Agreement; (c) the Company
Documents; (d) a Certificate of Existence/Authorization issued by the
Secretary of State of Washington, a Certificate of Corporate Status
issued by the Secretary of State of Idaho, a Certificate of
Authorization issued by the Secretary of State of Montana, a
Certificate of Authorization issued by the Secretary of State of
Oregon, and a Certificate of Status of Foreign Corporation issued by
the Secretary of State of California, (e) the orders of the Washington
Utilities and Transportation Commission ("WUTC"), the California
Public Utilities Commission (the "CPUC"), the Idaho Public Utilities
Commission (the "IPUC") and the Public Utility Commission of Oregon
(the "OPUC"); (f) 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 "Act"), of $250,000,000 in
aggregate amount of the Company's debt securities and for
qualification under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), of the Indenture, which Registration
Statement, we are advised, became effective on _______ _, 199_; (g)
the final prospectus relating to the Notes and the prospectus
supplement dated ______ __, 199_, relating to such securities and
filed with the SEC pursuant to Rule 424 under the Act; and (h) the
documents incorporated by reference in the Registration Statement and
the Prospectus, consisting of the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1996 (the "10-K"), the Company's
Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31,
1997, June 30, 1997 and September 30, 1997 (the "10-Q's"), and the
Company's Current Report on Form 8-K dated June 25, 1997 (the "8-K"),
in each case, together with all exhibits thereto (the "Incorporated
Documents"). We have also examined such other documents and satisfied
ourselves as to such other matters as we have deemed necessary in order
to render this opinion. We have not examined the certificates evidencing
the Notes, except a specimen thereof.
As to various questions of fact (but not as to the legal
conclusions contained therein) material to the opinions set forth
below, in rendering such opinions we have relied, with your
permission, upon certificates of public officials, certificates of
officers or other employees of the Company, representations contained
in the Distribution Agreement, the Company Documents and related
documents, and other oral or written assurances by officers or other
employees of the Company.
We are general counsel to the Company; general counsel to
the following subsidiaries: Avista Corp., Avista Laboratories, Inc.,
Avista Advantage, Inc., WP International, Inc., Washington Irrigation
and Development Company, and WP Finance Co.; and counsel to the
following subsidiary: Avista Energy, Inc. In such capacity, we
represent the Company and such subsidiaries to which we are general
counsel on various matters referred to us by them, but not on all
matters; and we represent Avista Energy, Inc. on certain specific
matters referred to us by it (primarily with respect to energy
purchase and sale transactions), but not on all matters and Avista
Energy, Inc. has substantial engagements with other counsel to
represent it on numerous matters. We do not serve as counsel to other
direct or indirect subsidiaries and affiliates of the Company and, as
to various questions relating to the activities of such subsidiaries
and affiliates, we further have relied upon certificates of officers
thereof.
We have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as
copies, and the due authorization, execution and delivery of all
documents by all parties thereto other than the Company.
We further assumed (a) that the interest rate, agent fee
and/or effective interest cost of each Note, when issued, will be within
the limitations with respect thereto imposed by the OPUC and by the
Company's Board of Directors, (b) that no floating rate Notes will be
issued until the Company's Board of Directors shall have authorized the
same, and (c) that Notes will be issued only during the period of
authorization specified by the OPUC.
As used in this opinion, the expression "to the best of our
knowledge" with reference to matters of fact means that, after an
examination of the documents made available to us by the Company and
after inquiries of officers or employees of the Company, we find no
reason to believe that the opinions expressed herein are factually
inaccurate; but beyond that, we have not made an independent factual
investigation for the purpose of rendering this opinion.
Based upon the foregoing, and subject to the qualifications
set forth herein, we are of the opinion that:
(1) (a) The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the State
of Washington, is duly qualified to do business and in good
standing as a foreign corporation under the laws of the States of
California, Idaho, Montana and Oregon, and has adequate corporate
powers and has all material required approvals and authorizations
to own, lease and operate its properties and to transact an
electric and/or gas public utility business in such States as
described in the Registration Statement, the Prospectus and the
Incorporated Documents. The Company has adequate corporate powers
to execute and deliver, and perform its obligations under, the
Distribution Agreement and the Company Documents.
(b) Each of the Company's following subsidiaries, Avista
Corp., ▇▇▇▇▇▇▇ Corporation, Avista Energy, Inc., Avista
Advantage, Inc., and Washington Irrigation & Development Company,
is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Washington.
(2) The WUTC, CPUC, IPUC and OPUC have entered appropriate
orders authorizing the issuance and sale by the Company of the
Notes on the terms set forth or contemplated in such orders (the
"Commission Orders"); each of the Commission Orders, to the best
of our knowledge, remains in full force and effect on the date of
this opinion; and no further approval, authorization, consent or
other order of, or filing with, any governmental agency of the
States of Washington, California, Idaho, Montana and Oregon is
legally required for the authorization of the issuance and sale
by the Company of the Notes or in order for the Company Documents
to constitute valid and binding obligations of the Company.
(3) The Distribution Agreement and the Company Documents
(other than the Notes) have been duly authorized, executed and
delivered by the Company, and the Notes have been duly authorized
by the Company.
(4) The execution, delivery and performance by the Company
of its obligations under the Distribution Agreement and the
Company Documents, and the issuance and sale by the Company of
the Notes will not (A) breach or violate the Company's Restated
Articles of Incorporation, as amended, or Bylaws, as amended, or
(B) breach or violate, or constitute a default under, (i) any
order of any court or governmental agency of such States having
jurisdiction over the Company or any of its properties which is
material to the Company or (ii) any contract, indenture, mortgage,
agreement or other instrument for borrowed money to which the
Company is a party or to which any of its properties is subject
and which is listed as an Exhibit to the 10-K, except that we
express no opinion as to any such contract, indenture, mortgage,
agreement or other instrument which is addressed in the separate
opinion to you of ▇▇▇▇ & Priest LLP.
(5) Except as described in the Registration Statement, the
Prospectus or the Incorporated Documents, to the best of our
knowledge, there are no legal or governmental proceedings, either
pending or overtly threatened in writing, which arise out of the
operations of the Company in the States of Washington,
California, Idaho, Montana or Oregon to which the Company is a
party or to which the Company or any of its properties are
subject and which are material to the Company, other than
ordinary, routine legal or governmental proceedings incidental to
the kind of business conducted by the Company.
(6) The descriptions of legal or governmental proceedings
contained in Item 1 (Note 3) of the 10-Q's and in Item 14 (Note
14) of the 10-K are fair and accurate descriptions thereof in all
material respects.
As noted above, we are general counsel to the Company and
certain of its subsidiaries and we represent them on various, but not
all, matters, and we are counsel to its subsidiary Avista Energy, Inc.
and we represent it on certain specific matters, but not all, matters.
Our involvement in the preparation of the Registration Statement, the
Prospectus and the Incorporated Documents was limited to generally
reviewing drafts thereof prepared by the Company or other counsel to
the Company and to participating in the conferences referred to below.
However, we have not been engaged to make the ultimate determination
of materiality for purposes of, or to determine the wording and degree
of disclosure contained in, the Registration Statement, the Prospectus
or the Incorporated Documents; we have not been engaged to advise the
Company with respect to compliance with securities laws; and we have
not otherwise acted as securities law counsel to the Company.
Accordingly, in such capacity during the course of the
preparation by the Company of the Registration Statement, the
Prospectus and the Incorporated Documents, we have participated in
conferences with certain officers and other employees of the Company,
with other counsel for the Company, with you and your counsel, and
with Deloitte & Touche LLP, the independent certified public
accountants who examined the financial statements included in the
Registration Statement, the Prospectus and the Incorporated Documents,
but we have made no independent verification of the accuracy or
completeness of the representations and statements made to us by the
Company or the information included by the Company in the Registration
Statement, the Prospectus or the Incorporated Documents, and we take
no responsibility therefor, except as set forth in paragraph (6) above
and insofar as such information relates to us.
The nature and extent of our engagement by the Company and our
participation in the above-mentioned conferences, as described above,
would not necessarily be adequate to bring to our attention all
matters which could be deemed material or to enable us to make a valid
assessment of the materiality of such matters as were brought to our
attention or of the wording and degree of disclosure contained in the
Registration Statement, the Prospectus or the Incorporated Documents.
However, during the course of our examination of the Registration
Statement, the Prospectus and the Incorporated Documents and our
participation in the above-mentioned conferences, nothing came to our
attention which gives us reason to believe that, when the Registration
Statement became effective, the Registration Statement, the Prospectus
and the Incorporated Documents contained an untrue statement of a
material fact or omitted to state a material fact necessary to make
the statements therein not misleading, or that, as of the date of this
opinion, the Prospectus, as then amended or supplemented, and the
Incorporated Documents contain an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that we do not express
any belief as to any financial statements or other financial or
statistical information, data or computations contained in the
Registration Statement, the Prospectus or the Incorporated Documents,
as to any statements contained in the Statements of Eligibility (Form
T-1) under the Trust Indenture Act with respect to the Trustee, or as
to any portions of the Registration Statement or the Prospectus other
than the sections entitled "The Washington Water Power Company" and
"Use of Proceeds" and Part II of the Registration Statement.
The opinions expressed above are limited to the laws of the
States of Washington, California, Idaho, Montana and Oregon (excluding
therefrom principles of conflicts of laws, state securities or blue
sky laws, and laws of political subdivisions of such States). For
purposes of the opinion expressed in paragraph (4) above, we have
assumed that any document referred to therein which is not stated to
be governed by the laws of the States of Washington, California,
Idaho, Montana and Oregon would be enforced as written.
This opinion is limited to the opinions and confirmations
expressed above, and no additional opinions or confirmations are to be
implied or inferred. Without limiting the generality of the foregoing,
it is specifically understood that we express no opinion or
confirmation as to (i) whether the Distribution Agreement, the Company
Documents or related documents constitute legal, valid and binding
obligations, enforceable in accordance with their terms, or (ii) the
description of the Notes or related documents contained in the
Registration Statement and Prospectus.
This opinion is being delivered as of this date solely in
connection with the issuance and sale of the Notes for the benefit of
the addressees hereof. The Chase Manhattan Bank, as Trustee under the
Indenture, is hereby also authorized to rely upon this opinion in
connection therewith as if it were addressed to it. ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ is hereby also authorized to rely upon this opinion with
respect to paragraphs (1), (2) and (3) above in connection therewith
as if it were addressed to them. This opinion is not being delivered,
nor may it be relied upon, for any other purpose; this opinion is not
being delivered for the benefit of, nor may it be relied upon by, the
holders of the Notes or any other party to which it is not
specifically addressed or to which reliance is not expressly permitted
hereby; and this opinion is not to be used, delivered, circulated,
quoted or otherwise referred to except as expressly permitted hereby.
This opinion is given as of the date hereof, without any
obligation upon us to update this opinion or to advise the addressees
hereof or any other party of any changes in circumstances or laws that
may hereafter be brought to our attention or occur which may affect
this opinion.
Very truly yours,
PAINE, HAMBLEN, ▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
ANNEX IV
[FORM OF OPINION OF ▇▇▇▇ & PRIEST LLP]
-------- --, ----
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This opinion is being delivered to you pursuant to Section ___
of the Distribution Agreement, dated ______ __, 199_ (the
"Distribution Agreement"), between you as Agents and The Washington
Water Power Company, a Washington corporation (the "Company"),
relating to the issuance and sale from time to time by the Company of
up to $250,000,000 in aggregate principal amount of its Medium-Term
Notes, Series C (the "Notes"), to be issued under an Indenture, dated
as of _______ __, 199_, by and between the Company and The Chase
Manhattan Bank, as trustee (the "Trustee").
Capitalized terms used herein but not otherwise defined herein
shall have the meaning ascribed to them in the Distribution Agreement.
The Indenture (including the Officer's Certificate establishing the
terms of the Notes) and the Notes are sometimes collectively referred
to herein as the "Company Documents."
In connection with rendering this opinion, we have examined,
or are generally familiar with, the following: (a) the Restated
Articles of Incorporation, as amended, and the Bylaws, as amended, of
the Company; (b) the Distribution Agreement; (c) the Company
Documents; (d) the Registration Statement for the registration under
the Securities Act of 1933, as amended (the "Act"), of $250,000,000 in
aggregate amount of the Company's debt securities and for
qualification under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), of the Indenture, which registration statement
became effective on _______ _, 199_; (e) the Prospectus filed with the
SEC pursuant to Rule 424 under the Act; and (f) the documents
incorporated by reference into the Registration Statement. We have
also examined such other documents and satisfied ourselves as to such
other matters as we have deemed necessary in order to render this
opinion. We have not examined the certificates evidencing the Notes,
except a specimen thereof.
As to various questions of fact (but not as to the legal
conclusions contained therein) material to the opinions set forth
below, in rendering such opinions we have relied, with your
permission, upon certificates of public officials, certificates of
officers or other employees of the Company, representations of the
Company in the Distribution Agreement, and other oral or written
assurances by officers or other employees of the Company. We do not
serve as counsel to direct or indirect subsidiaries or affiliates of
the Company, and, as to various questions relating to the activities
of such subsidiaries and affiliates, we have further relied upon
certificates of officers thereof.
We have assumed, consistent with the opinion of even date
herewith rendered to you by Paine, Hamblen, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
LLP, that the Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
Washington and is duly qualified to do business and in good standing
as a foreign corporation under the laws of the States of California,
Idaho, Montana and Oregon, and has adequate corporate powers to
execute and deliver the Distribution Agreement and the Company
Documents; that the Distribution Agreement and the Company Documents
(other than the Notes) have been duly authorized, executed and
delivered by the Company, and the Notes have been duly authorized by
the Company; and that all approvals, authorizations, consents, other
orders or filings required under the laws of the States of Washington,
California, Idaho, Montana and Oregon in order for the Company
Documents to constitute valid and binding obligations of the Company
have been obtained. We have not been engaged by the Company with
respect to the matters so assumed; however, during the course of such
examinations as we have made for the purposes of the opinions
enumerated below, nothing came to our attention which leads us to
believe that such assumptions are not correct.
We have further assumed (a) that the interest rate, agent
fee and/or effective interest cost of each Note, when issued, will
be within the limitations with respect thereto imposed by the OPUC
and by the Company's Board of Directors, (b) that no floating rate
Notes will be issued until the Company's Board of Directors shall
have authorized the same, and (c) that Notes will be issued only
during the period of authorization specified by the OPUC.
Based upon the foregoing, and subject to the qualifications
set forth herein, we are of the opinion that:
(1) the Indenture has been duly qualified under the Trust
Indenture Act and constitutes a valid and legally binding
instrument, enforceable against the Company in accordance with
its terms, except to the extent the enforcement of the Indenture
may be limited by any applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other laws
affecting creditors' rights generally, by general principles of
equity (whether asserted in an action in equity or at law) and by
rules of law governing specific performance, injunctive relief,
foreclosure, receivership and other equitable remedies; and the
Indenture conforms in all material respects to the description
thereof contained in the Prospectus;
(2) the Notes, when duly authenticated and delivered by the
Trustee in accordance with the Indenture and issued, delivered
and paid for in accordance with the Distribution Agreement, will
be duly executed, authenticated, issued and delivered and
constitute valid and legally binding obligations of the Company,
in the form contemplated by and entitled to the benefits provided
by the Indenture, and enforceable in accordance with their terms,
except to the extent the enforcement of the Notes may be limited
by any applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other laws affecting creditors'
rights generally, by general principles of equity (whether
asserted in an action in equity or at law) and by rules of law
governing specific performance, injunctive relief, foreclosure,
receivership and other equitable remedies; and the Notes conform
in all material respects to the description thereof contained in
the Prospectus;
(3) the execution, delivery and performance by the Company
of its obligations under the Distribution Agreement and the
Company Documents and the consummation of the transactions
contemplated therein and compliance by the Company with its
obligations thereunder will not (A) conflict with the Company's
Restated Articles of Incorporation, as amended, or Bylaws, as
amended, or (B) result in the breach or violation of any terms or
provisions of, or constitute a default under, (i) the Company's
Mortgage and Deed of Trust dated as of June 1, 1939, to Citibank,
N.A., as trustee, (ii) the Indenture, dated as of July 1, 1988,
of the Company to Chemical Bank, (iii) the Lease Agreement, dated
as of December 15, 1986, between the Company and IRE-4 of New
York, Inc. and all agreements of the Company associated
therewith, (iv) the Loan Agreement, dated as of October 1, 1989,
between the Company and the City of Forsyth, Rosebud County,
Montana, and all agreements of the Company associated therewith,
(v) the Indenture, dated as of January 1, 1997, of the Company to
Wilmington Trust Company, (vi) the Agreement for Lease and the
Lease Agreement, each dated as of February 26, 1993, between the
Company and WP Funding, Limited Partnership, and all agreements
of the Company associated therewith, (vii) the Amended and
Restated Declaration of Trust of Washington Water Power Capital
I, dated as of January 23, 1997, or (viii) the Amended and
Restated Declaration of Trust of Washington Water Power Capital
II, dated as of June 3, 1997;
(4) no approval, authorization, consent or other order of,
or filing with, any governmental agency of the State of New York
or of the United States of America is required under the
respective laws of such jurisdictions in order for the Company
Documents to constitute valid and binding obligations of the
Company;
(5) the Company is not and, after giving effect to the
offering and sale of the Notes, will not be, an "investment
company" or an entity "controlled" by an "investment company," as
such terms are defined in the Investment Company Act of 1940, as
amended; and
(6) the Registration Statement and Prospectus (except the
financial statements and other financial and statistical data
contained therein and any information furnished to the Company by
the Agents expressly for use therein, upon which we do not pass)
comply as to form in all material respects with the applicable
requirements of the Act and the Trust Indenture Act and the
applicable instructions, rules and regulations promulgated
thereunder; the Registration Statement has become effective under
the Act and, to the best of our knowledge, no proceedings for a
stop order with respect thereto are pending or threatened under
Section 8(d) of the Act.
We have acted as counsel to the Company primarily with
respect to general compliance with the federal securities laws and
specific financing and other corporate transactions. Our engagement
regarding such compliance was limited to advising the Company as to
the requirements of such laws and the rules and regulations of the SEC
thereunder, assisting the Company in the assessment of the materiality
of particular matters brought to our attention and generally
reviewing, with a view toward such compliance, drafts prepared by the
Company of the documents incorporated by reference into the
Registration Statement and the Prospectus. We have not acted as
general counsel to the Company and have not, except for specific
purposes, attended meetings of the Board of Directors of the Company,
or committees thereof, or of officers of the Company; nor have we
otherwise been in a position to become aware of matters not
specifically brought to our attention by officers or other employees
of, or other counsel to, the Company.
Accordingly, in the course of the preparation by the Company
of the Registration Statement and the Prospectus, we participated in
conferences with certain officers and other employees of the Company,
with other counsel for the Company, with you and your counsel, and
with Deloitte & Touche LLP, the independent certified public
accountants who examined the financial statements included in the
Registration Statement and the Prospectus, but we made no independent
verification of the accuracy or completeness of the representations
and statements made to us by the Company or the information included
by the Company in the Registration Statement or the Prospectus, and we
take no responsibility therefor, except insofar as such information
relates to us and as set forth in paragraphs (1) and (2) above.
The nature and extent of our engagement by the Company and
our participation in the preparation of the Registration Statement and
the Prospectus, as described above, would not necessarily be adequate
to bring to our attention all matters which could be deemed material
or to enable us to make a valid assessment of the materiality of such
matters as were brought to our attention.
However, during the course of our examination of the
Registration Statement and the Prospectus, and our participation in
the above-mentioned conferences, nothing came to our attention which
gives us reason to believe that (A) when the Registration Statement
became effective, the Registration Statement contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that, as of the date of this opinion, the
Prospectus, as then amended or supplemented, contains an untrue
statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that we do not express any belief as to any financial
statements or other financial or statistical information, data or
computations contained in the Registration Statement or the Prospectus
or as to any statements contained in the Statements of Eligibility
(Form T-1) under the Trust Indenture Act with respect to the Trustee;
or (B) there exist any material contracts which are required to be
filed as exhibits to the Registration Statement which have not been so
filed.
The opinions enumerated above are limited to the laws of the
State of New York and the federal law of the United States of America
(excluding therefrom principles of conflicts of laws and state
securities or blue sky laws). To the extent that such opinions relate
to or are dependent upon matters governed by the laws of other States,
they are based upon the assumptions set forth above or otherwise upon
the legal conclusions set forth in the aforesaid opinions of Paine,
Hamblen, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP. For purposes of the opinion
expressed in Paragraph 3 above, we have assumed that any document
referred to therein which is not stated to be governed by the law of
the State of New York would be enforced as written.
The Chase Manhattan Bank, as trustee under the Indenture, is
hereby authorized to rely upon this opinion as if it were addressed to
it. This opinion is not being delivered for the benefit of, nor may it
be relied upon by, the holders of the Notes or any other party to
which it is not specifically addressed or to which reliance is not
expressly permitted hereby.
Very truly yours,
▇▇▇▇ & PRIEST LLP
ANNEX V
[Contents of Letter of Deloitte & Touche LLP]
The letter of Deloitte & Touche LLP will state in effect
that:
(1) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the Rules and Regulations.
(2) In their opinion, the financial statements audited by
them and incorporated by reference in the Prospectus comply as to form
in all material respects with the applicable accounting requirements
of the Act, the Exchange Act and the Rules and Regulations.
(3) They performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in SAS No. 71, Interim Financial
Information, on any unaudited condensed consolidated financial
statements included in the Company's Quarterly Reports on Form 10-Q
and incorporated by reference in the Prospectus.
(4) On the basis of procedures referred to in such letter,
including a reading of the latest available minutes of the Board of
Directors of the Company and a reading of the latest available interim
financial statements of the Company and inquiries of officials of the
Company responsible for financial and accounting matters, nothing
caused them to believe that:
(a) the unaudited income statement and balance sheet
amounts, if any, included in the Prospectus were not determined
on a basis substantially consistent with that of the
corresponding amounts in the audited financial statements
incorporated by reference in the Prospectus;
(b) the unaudited condensed consolidated financial
statements included in the Company's Quarterly Reports on Form
10-Q, if any, incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the related
published rules and regulations thereunder applicable to reports
on Form 10-Q or are not in conformity with generally accepted
accounting principles on a basis substantially consistent with
that of the audited financial statements incorporated by
reference in the Prospectus;
(c) at the date of the latest available internal balance
sheet of the Company, there was any change in the capital stock,
notes payable or long-term debt or any decrease in the net assets
or shareholders' equity of the Company, or, at a subsequent
specified date not more than five days prior to the date of such
letter, there was a change in the capital stock, notes payable or
long-term debt of the Company, in each case as compared with the
amounts shown in the most recent balance sheet of the Company
incorporated by reference in the Prospectus, except for 1.
increases in capital stock resulting from the issuance of shares
pursuant to employee benefit plans and the Company's Dividend
Reinvestment and Stock Purchase Plan, 2. decrease in long- term
debt resulting from amortization of debt premium or increases in
long-term debt premium or increases in long-term debt resulting
from draw-downs of funds held in trust, 3. decreases in net
assets resulting from the declaration of dividends, 4. changes or
decreases which the Prospectus discloses have occurred or may
occur and 5. such other changes or decreases as may be set forth
in such letter; or
(d) at the date of the latest available internal balance
sheet of the Company, there was any decrease, as compared with
the most recent twelve-month period for which operating revenues
and net income are included or incorporated by reference in the
Prospectus, in such amounts, except in all cases for changes or
decreases which the Prospectus discloses have occurred or may
occur or as may be set forth in set letter.
(5) In addition to their examination referred to in their
report in the Registration Statement and Prospectus and the procedures
referred to in (3) above, they have carried out certain other
specified procedures, not constituting an audit, with respect to the
dollar amounts, percentages and other financial information, (in each
case to the extent that such dollar amounts, percentages and other
financial information, either directly or by analysis or computation,
are derived from the general accounting records of the Company) which
appear in the Company's annual report on Form 10-K for its most recent
fiscal year in Item 1, "Business", Item 6, "Selected Financial Data"
and Item 7 "Managements's Discussion and Analysis of Financial
Condition and Results of Operations" and have found such dollar
amounts, percentages and financial information to be in agreement with
the accounting records of the Company.
