PACIFICORP First Mortgage Bonds % Series Due UNDERWRITING AGREEMENT
EXHIBIT
1.1
$
PACIFICORP
First
Mortgage Bonds
%
Series Due
[DATE]
[Underwriters'
Representative(s)]
[Address(es)]
Dear
Sirs:
1. Introductory. PacifiCorp,
an Oregon corporation (the “Company”), proposes, subject
to the terms and conditions stated herein, to issue and sell to___and___
(the “Underwriters”) U.S. $__
principal amount of its First Mortgage Bonds, __% Series due ___ (the
“Offered Securities”) to
be issued under that certain Mortgage Deed and Trust, dated as of
January 9, 1989, with The Bank of New York, as successor trustee
(the “Trustee”), as
heretofore amended and supplemented by the supplemental indentures thereto
and
as further amended and supplemented by a supplemental indenture to be dated
(collectively, the “Mortgage”) pursuant to the
registration statements on Form S-3 (File No. 333-_____) filed on
January 8, 2008, as amended to date (the “Initial Registration
Statement”). The Mortgage has been qualified under the Trust Indenture
Act of 1939, as amended (the “Trust Indenture Act”), and the
rules and regulations of the Securities and Exchange Commission (the “Commission”) under the Trust
Indenture Act. The United States Securities Act of 1933, as amended, is herein
referred to as the “Securities Act,” and the
rules and regulations of the Commission thereunder are herein referred to as
the
“Rules and
Regulations.”
The
Company hereby agrees with the several Underwriters as follows:
2. Representations
and Warranties of
the Company. The Company represents and warrants to, and agrees with, the
several Underwriters that:
(a) The
Initial Registration Statement in respect of the Offered Securities has been
filed with the Commission; the Initial Registration Statement and any
post-effective amendments thereto prior to the date hereof, each in the form
heretofore delivered or to be delivered to the Underwriters and, excluding
exhibits to the Initial Registration Statement but including all documents
incorporated by reference in the prospectus contained in such Initial
Registration Statement, including any prospectus supplement relating to the
Offered Securities that is filed with the Commission and deemed by virtue of
Rule 430B under the Securities Act to be part of the Initial Registration
Statement, has been declared effective by the Commission in such form; other
than a registration statement, if any, increasing the size of the offering
(a
“Rule 462(b) Registration
Statement,” together with the Initial Registration Statement, the “Registration Statement”),
filed pursuant to Rule 462(b) under the Securities Act, which, if so filed,
became effective upon filing, and no other document with respect to the Initial
Registration Statement or
any
document incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission with respect to the offering
contemplated by the Initial Registration Statement (other than documents filed
after the filing date of the Initial Registration Statement under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), and
prospectuses filed pursuant to Rule 424(b) of the Rules and Regulations,
each in the form heretofore delivered to the Underwriters); and no stop order
suspending the effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration Statement,
if any, has been issued and no proceeding for that purpose has been initiated
or
threatened by the Commission.
(b) A
preliminary prospectus and a final prospectus relating to the Offered Securities
to be offered by the Underwriters have been prepared by the
Company. Such preliminary prospectus (including the documents
incorporated by reference therein) is hereinafter referred to as, the “Preliminary Prospectus”; such
form of final prospectus relating to the Offered Securities filed with the
Commission pursuant to Rule 424(b) under the Securities Act (including the
documents incorporated by reference therein) is hereinafter referred to as
the
“Prospectus.”
The Preliminary
Prospectus, as amended or supplemented as of the Applicable Time (as defined
below), when considered together with the final term sheet filed pursuant to
Section 5(a) hereof, (the “Disclosure Package”) as of the
Applicable Time did not include any untrue statement of a material fact or
omit
to state any material fact necessary in order to make the statements therein,
in
the light of the circumstances under which they were made, not misleading.
The
Prospectus, as of its date and as of the Closing Date (as defined below), did
not and will not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein,
in
the light of the circumstances under which they were made, not misleading; and each Issuer
Free
Writing Prospectus (as defined in Rule 433 under the Securities Act) listed
on Schedule B(ii) hereto does not conflict with the information contained
in the Registration Statement, the Preliminary Prospectus or the Prospectus
and
each such Issuer Free Writing Prospectus, as supplemented by and taken together
with the Disclosure Package as of the Applicable Time, did not include any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading; provided,
the preceding two
sentences do not apply to statements in or omissions from the Preliminary
Prospectus, the Disclosure Package, the Prospectus or any Issuer Free Writing
Prospectus based upon written information furnished to the Company by the
Underwriters specifically for use therein, it being understood and agreed that
the only such information is that described as such in Section 7(b) hereof.
For
purposes of this Agreement, the “Applicable Time” is
p.m., New York City
Time, on the date of this
Agreement.
At
the
earliest time after the filing of the Initial Registration Statement that the
Company or another offering participant made a bona fide offer (within the
meaning of Rule 164(h)(2) under the Act) of the Offered Securities, the
Company was not an “ineligible issuer” as defined in Rule 405 under the
Securities Act.
(c) The
Registration Statement and the Prospectus conform, and any further amendments
or
supplements to the Registration Statement or the Prospectus when made will
conform, in all material respects to the requirements of the Securities Act
and
the Rules and Regulations and the Registration Statement conforms, and any
further amendments or supplements to the Registration Statement when made will
conform, in all material respects to the requirements of the Trust Indenture
Act, and the rules and regulations of the Commission thereunder. The
Registration Statement as of the applicable Effective Date and any amendments
thereto as of the Closing Date does not and will not contain an untrue statement
of a material fact
2
or
omit
to state a material fact required to be stated therein or necessary to make
the
statements therein not misleading, and the Prospectus as of its date as amended
or supplemented as of the Closing Date does not and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of
the
circumstances under which they were made, not misleading.
(d) The
Company has been duly incorporated and is validly existing as a corporation
under the laws of the State of Oregon with corporate power and corporate
authority (i) to own its properties and conduct its business as described
in the Disclosure Package and the Prospectus and (ii) to execute and
deliver, and perform its obligations under, this Agreement, the Mortgage and
the
Offered Securities; and the Company is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in which
it
owns or leases substantial properties or in which the conduct of its business
requires such qualification, except where the failure to so qualify would not
have a material adverse effect on the financial condition, business or results
of operations of the Company and its subsidiaries taken as a whole
(a “Material Adverse
Effect”).
(e) The
Mortgage has been duly authorized, executed and delivered by the Company, and
constitutes a valid and legally binding instrument of the Company enforceable
against the Company in accordance with its terms, except as limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization and other similar
laws relating to or affecting creditors' rights generally and general equitable
principles (whether considered in a proceeding in equity or at law); and the
Mortgage conforms to the description thereof in the Disclosure Package and
the
Prospectus.
(f) The
Offered Securities have been duly authorized by the Company and, when
authenticated and delivered in accordance with the Mortgage and paid for by
the
purchasers thereof, will constitute valid and legally binding obligations of
the
Company enforceable against the Company in accordance with their terms, except
as limited by bankruptcy, insolvency, fraudulent conveyance, reorganization
and
other similar laws relating to or affecting creditors' rights generally and
general equitable principles (whether considered in a proceeding in equity
or at
law), and will be entitled to the benefit of the security afforded by the
Mortgage; and the Offered Securities conform to the description thereof in
the
Disclosure Package and the Prospectus.
(g) No
consent, approval, authorization or order of, or filing or registration by
the
Company with, any court, governmental agency or third party is required for
the
consummation of the transactions contemplated by this Agreement and the Mortgage
in connection with the issuance and sale of the Offered Securities by the
Company and the use of the proceeds of the offering of the Offered Securities
as
described in the Disclosure Package and the Prospectus, except such as have
been
obtained or made.
(h) This
Agreement has been duly authorized, executed and delivered by the Company and
is
a valid and legally binding agreement of the Company enforceable against the
Company in accordance with its terms, except as limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization and other similar laws
relating to or affecting creditors' rights generally and general equitable
principles (whether considered in a proceeding in equity or at law) and subject
to any principles of public policy limiting the right to enforce the
indemnification and contribution provisions contained herein.
3
(i) Except
as
disclosed in the Disclosure Package and the Prospectus, the Company has good
and
sufficient title to all the properties described as owned or leased by it (the
“Properties”), subject
to minor defects and irregularities customarily found in properties of like
size
and character that do not materially impair the use of the property affected
thereby in the operation of the business of the Company.
(j) The
Company is not in violation of (i) the Articles of Incorporation (the
“Articles”) or its
Bylaws, as amended, or in default in the performance or observance of any
material obligation, covenant or condition contained in any contract, agreement
or other instrument to which it is a party or by which it may be bound or
(ii) any order, rule or regulation applicable to the Company of any court
or any federal or state regulatory body or administrative agency or other
governmental body, the effect of which, in the case of (ii), would result in
a
Material Adverse Effect, and neither the execution and delivery of this
Agreement, the Mortgage, or the Offered Securities, the consummation of the
transactions herein or therein contemplated, the fulfillment of the terms hereof
or thereof nor compliance with the terms and provisions hereof or thereof will
conflict with, or result in a breach of, or constitute a default under (x)
the
Articles or such Bylaws, or any material contract, agreement or other instrument
to which it is now a party or by which it may be bound or (y) any order, rule
or
regulation applicable to the Company of any court or any federal or state
regulatory body or administrative agency or other governmental body having
jurisdiction over the Company or over its properties, the effect of which,
singly or in the aggregate, would have a Material Adverse Effect.
(k) Except
as
disclosed in the Disclosure Package and the Prospectus, there are no legal
or
governmental proceedings pending or to the Company’s knowledge threatened
against the Company or its subsidiaries which are not adequately disclosed
in
the Disclosure Package and the Prospectus that, if determined adversely to
the
Company or any subsidiary would be reasonably likely to have, individually
or in
the aggregate, a Material Adverse Effect or a material adverse effect on the
ability of the Company to perform its obligations under this Agreement or the
Mortgage.
(l) The
consolidated financial statements included or incorporated by reference in
the
Disclosure Package and the Prospectus present fairly the financial condition
and
operations of the Company and its consolidated subsidiaries at the respective
dates or for the respective periods to which they apply; such financial
statements have been prepared in each case in accordance with generally accepted
accounting principles consistently applied throughout the periods involved
except as otherwise indicated in the Disclosure Package and the Prospectus;
and
PricewaterhouseCoopers LLP, who examined certain audited financial statements
of
the Company, was, as of May 26, 2006 and during the period covered by the
financial statements on which they reported, an independent registered public
accounting firm as required by the Securities Act and the Rules and Regulations
thereunder; and Deloitte & Touche LLP, who has examined certain audited
financial statements of the Company, is an independent registered public
accounting firm as required by the Act and the Regulations
thereunder.
(m) Except
as
reflected in, or contemplated by, the Disclosure Package and the Prospectus,
since the respective most recent dates as of which information is given in
the
Disclosure Package and the Prospectus, there has not been any change in the
capital stock or long-term debt of the Company (other than changes arising
from
transactions in the ordinary course of business), or any material adverse change
in the business, affairs, business prospects, property or financial condition
of
the Company and its subsidiaries taken as a whole, whether or not arising in
the
ordinary course of business, and since such dates there has not been any
material transaction entered into by the Company other than transactions
contemplated by the
4
Disclosure
Package and the Prospectus, and transactions in the ordinary course of business;
and the Company has no material contingent obligation that is not disclosed
in
the Disclosure Package and the Prospectus.
(n) The
Company (i) makes and keeps books, records, and accounts, which, in
reasonable detail, accurately and fairly reflect the transactions and
dispositions of the assets of the Company and its consolidated subsidiaries
and
(ii) maintains a system of internal accounting controls sufficient to
provide reasonable assurances that (1) transactions are executed in
accordance with management’s general or specific authorization;
(2) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting principles
or any other criteria applicable to such statements and to maintain
accountability for assets; (3) access to assets is permitted only in
accordance with management’s general or specific authorization; and (4) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(o) There
is
and has been no failure on the part of the Company or, to the knowledge of
the
Company, any of the Company’s directors or executive officers in their
respective capacities as such, to comply in all material respects with the
provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations
promulgated in connection therewith.
3. Purchase,
Sale and Delivery of
Offered Securities. On the basis of the representations,
warranties and agreements herein contained, but subject to the terms and
conditions herein set forth, the Company agrees to sell to the Underwriters,
and
the Underwriters agree, severally and not jointly, to purchase from the Company,
at a purchase price of % of the principal amount
thereof plus accrued interest, if any, from [DATE] to the Closing Date (as
hereinafter defined), the respective principal amounts of the Offered Securities
set forth opposite the names of the several Underwriters in Schedule A
hereto.
The
Company will deliver against payment of the purchase price the Offered
Securities to be purchased by each Underwriter hereunder and to be offered
and
sold by each Underwriter in the form of one or more global securities in
registered form without interest coupons (the “Global Securities”) deposited
with the Trustee as custodian for The Depository Trust Company (“DTC”) and
registered in the
name of Cede & Co., as nominee for DTC. Interests in the
Global Securities will be held only in book-entry form through DTC, except
in
the limited circumstances described in the Disclosure Package and the
Prospectus.
Payment
for the Offered Securities shall be made by the Underwriters in Federal (same
day) funds by wire transfer to an account at a bank acceptable to the
Underwriters drawn to the order of the Company, at the office of
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, at
10:00 A.M., (New York time), on [DATE], or at such other time not later than
seven full business days thereafter as the Underwriters and the Company
determine, such time being herein referred to as the “Closing Date,” against
delivery to the Trustee as custodian for DTC of the Global
Securities. The Global Securities will be made available for checking
at the above office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP at least 24 hours prior to
the Closing Date.
4. Representations
by Underwriters;
Resale by Underwriters.
(a) Each
of
the Underwriters severally represents and agrees that (i) it has only
communicated or caused to be communicated and will only communicate or cause
to
be communicated any invitation or inducement to engage in investment activity
(within the meaning
5
of
section 21 of the Financial Services and Markets ▇▇▇ ▇▇▇▇ (the “FSMA”)) received
by it in
connection with the issue or sale of any Offered Securities in circumstances
in
which section 21(1) of the FSMA does not apply to the Company; and
(ii) it has complied and will comply with all applicable provisions of the
FSMA with respect to anything done by it in relation to the Offered Securities
in, from or otherwise involving the United Kingdom.
(b) In
relation to each Member State of the European Economic Area which has
implemented the Prospectus Directive (each, a “Relevant Member State”), each
Underwriter represents and agrees that with effect from and including the date
on which the Prospectus Directive is implemented in that Relevant Member State
(the “Relevant Implementation
Date”), it has not made and will not make an offer of the Offered
Securities to the public in that Relevant Member State prior to the publication
of a prospectus in relation to the bonds which has been approved by the
competent authority in that Relevant Member State or, where appropriate,
approved in another Relevant Member State and notified to the competent
authority in that Relevant Member State, all in accordance with the Prospectus
Directive, except that it may, with effect from and including the Relevant
Implementation Date, make an offer of the bonds to the public in that Relevant
Member State at any time: (i) to legal entities which are authorized or
regulated to operate in the financial markets or, if not so authorized or
regulated, whose corporate purpose is solely to invest in securities;
(ii) to any legal entity which has two or more of (1) an average of at
least 250 employees during the last financial year, (2) a total balance
sheet of more than €43,000,000, and (3) an annual net turnover of more than
€50,000,000, as shown in its last annual or consolidated accounts; or (iii)in
any other circumstances which do not require the publication by the Company
of a
prospectus pursuant to Article 3 of the Prospectus Directive. For the
purposes of this provision, the expression an “offer of bonds to the public” in
relation to any bonds in any Relevant Member State means the communication
in
any form and by any means of sufficient information on the terms of the offer
and the bonds to be offered so as to enable an investor to decide to purchase
or
subscribe the bonds, as the same may be varied in that Member State by any
measure implementing the Prospectus Directive in that Member State and the
expression Prospectus Directive means Directive 2003/71/EC and includes any
relevant implementing measure in each Relevant Member State.
(c) (i) In
Hong Kong, it has not offered or sold the Offered Securities by means of any
document other than (i) in circumstances which do not constitute an offer
to the public within the meaning of the Companies Ordinance (Cap. 32, Laws
of Hong Kong), or (ii) to “professional investors” within the meaning of
the Securities and Futures Ordinance (Cap. 571, Laws of Hong Kong) and any
rules made thereunder, or (iii) in other circumstances which do not result
in the document being a “prospectus” within the meaning of the Companies
Ordinance (Cap. 32, Laws of Hong Kong), and no advertisement, invitation or
document relating to the Offered Securities may be issued or may be in the
possession of any person for the purpose of issue (in each case whether in
Hong
Kong or elsewhere), which is directed at, or the contents of which are likely
to
be accessed or read by, the public in Hong Kong (except if permitted to do
so
under the laws of Hong Kong) other than with respect to Offered Securities
which
are or are intended to be disposed of only to persons outside Hong Kong or
only
to “professional investors” within the meaning of the Securities and Futures
Ordinance (Cap. 571, Laws of Hong Kong) and any rules made
thereunder.
(ii)
It will not circulate or distribute the Prospectus or any other document or
material in connection with the offer or sale, or invitation for subscription
or
purchase, of the Offered Securities, nor will it offer or sell, or be made
the
subject of an invitation for subscription or purchase, the Offered Securities,
whether directly or indirectly, to persons in Singapore other than (i) to
an institutional investor under Section 274 of the Securities and Futures
Act, Chapter 289 of
6
Singapore
(the “FSA”),
(ii) to a relevant person, or any person pursuant to Section 275(1A),
and in accordance with the conditions, specified in Section 275 of the SFA
or (iii) otherwise pursuant to, and in accordance with the conditions of,
any other applicable provision of the SFA.
(d) It
will
not offer or sell any Offered Securities, directly or indirectly, in Japan
or
to, or for the benfit of, any resident of Japan (which term as used herein
means
any person resident in Japan, including any corporation or other entity
organized under the laws of Japan), or to others for re-offering or resale,
directly or indirectly, in Japan or to a resident of Japan except pursuant
to an
exemption from the registration requirements of, and otherwise in compliance
with, the Securities and Exchange Law and any other applicable laws, regulations
and ministerial guidelines of Japan.
(e) Each
Underwriter represents and agrees that, without the prior consent of the Company
and the Underwriters, other than one or more term sheets relating to the Offered
Securities containing customary information, it has not made and will not make
any offer relating to the Offered Securities that would constitute a free
writing prospectus; and any such free writing prospectus the use of which has
been consented to by the Company and the Underwriters (including the final
term
sheet prepared and filed pursuant to Section 5(a) hereof) is listed on
Schedule B hereto.
5. Certain
Agreements of the
Company. The Company agrees with the several Underwriters
that:
(a) It
will
prepare the Prospectus in a form approved by you and to file such Prospectus
pursuant to Rule 424(b) under the Securities Act not later than the
Commission's close of business on the second business day following the date
of
this Agreement; to make no further amendment or any supplement to the
Registration Statement, or the Prospectus prior to the Closing Date that shall
be reasonably disapproved by you promptly after reasonable notice thereof;
to
advise you, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes effective
or
any amendment or supplement to the Prospectus has been filed and to furnish
you
with copies thereof; to prepare a final term sheet, containing solely a
description of the Offered Securities, in a form approved by you and to file
such term sheet pursuant to Rule 433(d) under the Securities Act within the
time required by such Rule; to file promptly all other material required to
be
filed by the Company with the Commission pursuant to Rule 433(d) under the
Securities Act; to file promptly 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
subsequent to the date of the Prospectus and for so long as the delivery of
a
prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under
the Act) is required in connection with the offering or sale of the Offered
Securities; to advise you, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or other prospectus in respect
of the Offered Securities, of the suspension of the qualification of the Offered
Securities for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement
or
the Prospectus or for additional information; and, in the event of the issuance
of any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or other prospectus or suspending any such qualification,
to promptly use its best efforts to obtain the withdrawal of such order; and
in
the event of any such issuance of a notice of objection, promptly to take such
steps including, without limitation, amending the Registration Statement or
filing a new registration statement, at its own expense, as may be necessary
to
permit offers and sales of the Offered Securities by the
7
Underwriters
(references herein to the Registration Statement shall include any such
amendment or new registration statement).
(b) Prior
to
10:00 a.m., New York City time, on the New York Business Day next
succeeding the date of this Agreement and from time to time, to furnish the
Underwriters with written and electronic copies of the Prospectus in New York
City in such quantities as you may reasonably request, and, if the delivery
of a
prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under
the Securities Act) is required at any time prior to the expiration of nine
months after the time of issue of the Prospectus in connection with the offering
or sale of the Offered Securities and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light
of
the circumstances under which they were made when such Prospectus (or in lieu
thereof, the notice referred to in Rule 173(a) under the Securities Act) is
delivered, not misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Prospectus or to file under
the Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Securities Act, the Exchange Act or the Trust Indenture
Act, to notify you and upon your request to file such document and to prepare
and furnish without charge to each Underwriter and to any dealer in securities
as many written and electronic copies as you may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus that will
correct such statement or omission or effect such compliance; and in case any
Underwriter is required to deliver a prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Securities Act) in connection with
sales of any of the Offered Securities at any time nine months or more after
the
time of issue of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many written and
electronic copies as you may request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Securities Act.
(c) To
make
generally available to its securityholders as soon as practicable, but in any
event not later than 16 months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Act), an earnings statement
of the Company and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Securities Act and the Rules and Regulations
thereunder (including, at the option of the Company,
Rule 158);
(d) The
Company will arrange for the qualification of the Offered Securities for sale
and the determination of their eligibility for investment under
the laws of such jurisdictions in the United States and Canada as the
Underwriters designate and will continue such qualifications in effect so long
as required for the resale of the Offered Securities by the Underwriters,
provided that the Company will not be required to qualify as a foreign
corporation, to file a general consent to service of process in any such
jurisdiction or to take any other action that would subject the Company to
service of process in any suits (other than those arising out of the offering
of
the Offered Securities) or to taxation in respect of doing business in any
jurisdiction in which it is not otherwise subject.
(e) The
Company will pay all expenses incident to the performance of its obligations
under this Agreement and the Mortgage, for any filing fees and other expenses
(including fees and disbursements of counsel) incurred in connection with
qualification of the Offered Securities for sale and determination of their
eligibility for investment under the laws of such jurisdictions as the
Underwriters designate and the printing of memoranda relating thereto, for
the
fees and expenses of the Trustee and its professional advisors, for all expenses
in connection with the execution, issue, authentication, packaging and initial
delivery of the Offered Securities, the
8
preparation
and printing of this Agreement, the Offered Securities, the Disclosure Package
and the Prospectus, any Issuer Free Writing Prospectus, and amendments and
supplements thereto, and any other document relating to the issuance, offer,
sale and delivery of the Offered Securities, for the cost of any advertising
approved by the Company in connection with the issue of the Offered Securities,
for any fees charged by investment rating agencies for the rating of the Offered
Securities, for any travel expenses of the Company’s officers and employees, and
any other expenses of the Company in connection with attending or hosting
meetings with prospective purchasers of the Offered Securities and for expenses
incurred in distributing the Disclosure Package, the Prospectus or any Issuer
Free Writing Prospectus (including any amendments and supplements thereto)
to
the Underwriters. Except as otherwise provided in this
Section 5(e) or in Section 9 of this Agreement, the Underwriters will
pay all of their costs and expenses, including fees and expenses of their
counsel, transfer taxes on the resale of the Offered Securities and any
advertising and travel expenses incurred by them.
(f) In
connection with the offering, until the earlier of (i) 180 days
following the Closing Date and (ii) the date the Underwriters shall have
notified the Company of the completion of the resale of the Offered Securities,
neither the Company nor any of its affiliates has or will, either alone or
with
one or more other persons, bid for or purchase for any account in which it
or
any of its affiliates has a beneficial interest any Offered Securities or
attempt to induce any person to purchase any Offered Securities; and neither
it
nor any of its affiliates will make bids or purchases for the purpose of
creating actual, or apparent, active trading in, or of raising the price of,
the
Offered Securities.
(g) From
the
date hereof through and including the Closing Date, the Company will not,
without the prior written consent of the Underwriters, offer, sell, contract
to
sell, pledge or otherwise dispose of, directly or indirectly, or file with
the
Commission a registration statement under the Securities Act relating to, any
United States dollar-denominated debt securities issued or guaranteed by the
Company and having a maturity of more than one year from the date of
issue.
(h) If
the
Company elects to rely upon Rule 462(b), the Company shall file a
Rule 462(b) Registration Statement with the Commission in compliance with
Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee pursuant to
Rule 111(b) under the Act.
(i) The
Company (i) represents and agrees that, other than the final term sheet
prepared and filed pursuant to Section 5(a) hereof, without the prior
consent of the Underwriters, it has not made and will not make any offer
relating to the Offered Securities that would constitute a “free writing
prospectus” as defined in Rule 405 under the Act and (ii) has complied
and will comply with the requirements of Rule 433 under the Act applicable
to any Issuer Free Writing Prospectus, including timely filing with the
Commission or retention where required and legending.
6. Conditions
of the Obligations of the
Underwriters. The obligations of the several Underwriters to
purchase and pay for the Offered Securities will be subject to the accuracy
of
the representations and warranties on the part of the Company herein, to the
accuracy of the statements of officers of the Company made pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions precedent:
9
(a) The
Prospectus as amended or supplemented in relation to the applicable Offered
Securities shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing
(without reliance on Rule 424(b)(8) by the Rules and Regulations and in
accordance with Section 5(a) hereof; if the Company has elected to rely
upon Rule 462(b), the Rule 462(b) Registration Statement shall have
become effective by 10:00 P.M., Washington, D.C. time, on the date hereof;
no stop order suspending the effectiveness of the Registration Statement or
any
part thereof shall have been issued and no proceeding for that purpose shall
have been initiated or to the knowledge of the Company threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with.
(b) (i) On
the date hereof, PricewaterhouseCoopers LLP shall have furnished to the
Underwriters a letter, dated as of the date hereof, in form and substance
satisfactory to the Underwriters, confirming that as of May 26, 2006 and
during the period covered by the financial statements on which it reported,
it
was an independent registered public accounting firm with respect to the Company
and its subsidiaries within the meaning of the Securities Act, the Exchange
Act
and the applicable published Rules and Regulations and stating that as of the
Applicable Time (or, with respect to matters involving changes or developments
since the respective dates as of which specified financial information is given
in the Preliminary Prospectus as of a particular time not more than five
business days prior to the Applicable Time) conclusions and findings of such
firm, to the effect that:
(A) in
their opinion the financial statements examined by them and incorporated by
reference in the Preliminary Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Securities Act,
the
Exchange Act and the related published Rules and Regulations; and
(B) they
have compared specified dollar amounts (or percentages derived from such dollar
amounts) and other financial information contained in the Preliminary Prospectus
(in each case to the extent that such dollar amounts, percentages and other
financial information are derived from the general accounting records of the
Company and its subsidiaries subject to the internal controls of the Company’s
accounting system or are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a reading of such general
accounting records and other procedures specified in such letter and have found
such dollar amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in such
letter.
(ii)
The Underwriters shall have received a letter, dated the Closing Date, of
PricewaterhouseCoopers LLP which meets the requirements of
subsection (b)(i) of this Section, except that (A) the specified date
referred to in such subsection will be a date not more than three days prior
to
the Closing Date for the purposes of this subsection, and (B) references to
the Preliminary Prospectus will be replaced with references to the
Prospectus.
(c) (i) On
the date hereof, Deloitte & Touche LLP shall have furnished to the
Underwriters a letter, dated as of the date hereof, in form and substance
satisfactory to the Underwriters, confirming that they are an independent
registered public accounting firm with respect to the Company and its
subsidiaries within the meaning of the Securities Act, the Exchange Act and
the
applicable published Rules and Regulations and stating that as of the Applicable
Time (or, with respect to matters involving changes or developments since
the
10
respective
dates as of which specified financial information is given in the Preliminary
Prospectus as of a particular time not more than five business days prior to
the
Applicable Time) conclusions and findings of such firm, to the effect that:
(A) in
their opinion the financial statements examined by them and incorporated by
reference in the Preliminary Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Securities Act,
the
Exchange Act and the related published Rules and Regulations;
(B) on
the basis of a reading of the latest available interim financial statements
of
the Company, inquiries of officials of the Company who have responsibility
for
financial and accounting matters and other specified procedures, nothing came
to
their attention that caused them to believe that:
(1) at
the date of the latest available balance sheet read by such accountants, or
at a
subsequent specified date not more than one business day prior to the date
of
this Agreement, there was any change in the capital stock or any increase in
short-term indebtedness or long-term debt of the Company and its consolidated
subsidiaries or, at the date of the latest available balance sheet read by
such
accountants, there was any decrease in total shareholders’ equity or total
consolidated net current assets, as compared with amounts shown on the latest
balance sheet incorporated by reference in the Preliminary Prospectus;
or
(2) for
the period from the closing date of the latest statement of income incorporated
by reference in the Preliminary Prospectus to the closing date of the latest
statement of income read by such accountants, there were any decreases, as
compared with the corresponding period of the previous year, in consolidated
revenue or net income (excluding decreases due to derivatives accounted for
under Statement of Financial Accounting Standards No. 133);
and
(C) they
have compared specified dollar amounts (or percentages derived from such dollar
amounts) and other financial information contained in the Preliminary Prospectus
(in each case to the extent that such dollar amounts, percentages and other
financial information are derived from the general accounting records of the
Company and its subsidiaries subject to the internal controls of the Company’s
accounting system or are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a reading of such general
accounting records and other procedures specified in such letter and have found
such dollar amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in such
letter.
(ii)
The Underwriters shall have received a letter, dated the Closing Date, of
Deloitte & Touche LLP which meets the requirements of subsection (c)(i)
of this Section, except that (A) the specified date referred to in such
subsection will be a date not more than one day prior to the Closing Date for
the purposes of this subsection, and (B) references to the Preliminary
Prospectus will be replaced with references to the Prospectus.
(d) Subsequent
to the Applicable Time, there shall not have been (i) any change, or any
development or event involving a prospective change, in the financial condition,
business,
11
properties
or results of operations of the Company and its subsidiaries taken as a whole,
which, in the judgment of the Underwriters, is material and adverse and makes
it
impractical or inadvisable to proceed with completion of the offering or the
sale of and payment for the Offered Securities; (ii) any downgrading in the
rating of any debt securities or preferred stock of the Company by any
“nationally recognized statistical rating organization” (as defined for purposes
of Rule 436(g) under the Securities Act), or any public announcement that
any such organization has under surveillance or review its rating of any debt
securities or preferred stock of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any material suspension or material
limitation of trading in securities generally on the New York Stock Exchange,
or
any setting of minimum prices for trading on such exchange; (iv) any
suspension of trading of any securities of the Company on any exchange or in
the
over-the-counter market; (v) any banking moratorium declared by U.S.
Federal or New York authorities; (vi) any major disruption of settlements
of securities or clearance services in the United States; or (vii) any
attack on, or outbreak or escalation of hostilities or act of terrorism
involving, the United States, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the judgment
of the Underwriters, the effect of any such attack, outbreak, escalation, act,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the offering or sale of and payment for the Offered
Securities.
(e) The
Underwriters shall have received an opinion, dated the Closing Date, of ▇▇▇▇
▇.
▇▇▇▇▇▇, General Counsel of the Company, substantially in the form of
Exhibit A hereto.
(f) The
Underwriters shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇
Coie LLP, special counsel to the Company, in substantially the form of
Exhibit B hereto.
(g) The
Underwriters shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for
the Underwriters, such opinion or opinions, dated the Closing Date, in form
and
substance satisfactory to the Underwriters, and the Company shall have furnished
to such counsel such documents as they request for the purpose of enabling
them
to pass upon such matters. In rendering such opinion,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may rely as to the incorporation of the Company
and all other matters governed by Oregon law upon the opinion of
▇▇▇▇ ▇. ▇▇▇▇▇▇ referred to above.
(h) The
Underwriters shall have received a certificate, dated the Closing Date, of
the
President or any Vice President and a principal financial or accounting officer
of the Company in which such officers, to the best of their knowledge after
reasonable investigation, shall state that: (i) the representations and
warranties of the Company in this Agreement are true and correct, or true and
correct in all material respects where such representations and warranties
are
not qualified by materiality or Material Adverse Effect; (ii) that the
Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing Date;
and
(iii) that, subsequent to the date of the most recent financial statements
in, or incorporated by reference in, the Preliminary Prospectus, there has
been
no material adverse change, nor any development or event involving a prospective
material adverse change, in the financial condition, business or results of
operations of the Company and its subsidiaries taken as a whole except as set
forth in the Disclosure Package and the Prospectus or as described in such
certificate.
The
Company will (i) furnish the
Underwriters with such conformed copies of such opinions, certificates, letters
and documents as the Underwriters reasonably request. The
Underwriters may waive compliance with any conditions to their obligations
hereunder.
12
7. Indemnification
and
Contribution.
(a) The Company will indemnify and hold harmless each Underwriter,
its partners, members, directors and officers and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Securities
Act, against any losses, claims, damages or liabilities, joint or several,
to
which such Underwriter may become subject, under the Securities Act or the
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any
untrue statement or alleged untrue statement of any material fact contained
in
the Registration Statement, the Preliminary Prospectus, the Disclosure Package,
the Prospectus or any Issuer Free Writing Prospectus, or any amendment or
supplement to the Registration Statement, the Prospectus or any Issuer Free
Writing Prospectus, or any “issuer information” filed or required to be filed
pursuant to Rule 433(d) under the Act, arise out of or are based upon the
omission or alleged omission to state therein a material fact necessary in
order
to make the statements therein made, in light of the circumstances under which
they were made (in the case of the Registration Statement, necessary in order
to
make the statements therein not misleading), not misleading, including any
losses, claims, damages or liabilities arising out of or based upon the
Company’s failure to perform its obligations under Section 5(a) of this
Agreement, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses
are
incurred; provided,
however, that the Company will 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 in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Underwriters specifically
for use therein, it being understood and agreed that the only such information
consists of the information described as such in subsection (b) below;
provided, further, that
the foregoing indemnity with respect to any Preliminary Prospectus shall not
inure to the benefit of any Underwriter from whom the person asserting any
such
losses, claims, damages or liabilities (or actions in respect thereof), in
connection with clauses (i) through (iii) below, purchased Offered
Securities, or any person controlling such Underwriter, where it shall have
been
determined by a court of competent jurisdiction by final and non-appealable
judgment that (i) prior to the Applicable Time the Company has notified
such Underwriter that the Preliminary Prospectus, dated
, contains an untrue statement
of material fact or omits to state therein a material fact necessary in order
to
make the statements therein, in the light of the circumstances under which
they
were made, not misleading, (ii) such untrue statement or omission of a
material fact was corrected in an amended or supplemented Preliminary Prospectus
and such corrected Preliminary Prospectus was provided to such Underwriter
sufficiently in advance of the Applicable Time so that such corrected
Preliminary Prospectus could have been conveyed to such person prior to the
Applicable Time and (iii) such corrected Preliminary Prospectus was not
conveyed to such person at or prior to the Applicable Time to such
person.
(b) Each
Underwriter will severally and not jointly indemnify and hold harmless the
Company, its directors and officers and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act, against any
losses, claims, damages or liabilities to which the Company may become subject,
under the Securities Act or the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Preliminary
Prospectus, the Disclosure Package, the Prospectus or any Issuer Free Writing
Prospectus, or any amendment or supplement to the Registration Statement, the
Prospectus or any Issuer Free Writing Prospectus or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made (in the case of the Registration
Statement, necessary in order to make the statements therein not misleading),
not misleading, in each case to the extent, but only to the extent,
that
13
such
untrue statement or alleged untrue statement or omission or alleged omission
was
made in reliance upon and in conformity with written information furnished
to
the Company by such Underwriter specifically for use therein, and will reimburse
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed that the
only such information furnished by any Underwriter consists of the following
information in the Preliminary Prospectus and Prospectus furnished on behalf
of
each Underwriter: under the caption “Underwriting”, paragraphs 3, 4 (second sentence
only) 5 and 6; provided,
however, that the Underwriters shall not be liable for any losses,
claims, damages or liabilities arising out of or based upon the Company’s
failure to perform its obligations under Section 5(a) of this
Agreement.
(c) Promptly
after receipt by an indemnified party under this Section of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under subsection (a)
or (b) above, notify the indemnifying party of the commencement thereof; but
the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party under subsection (a)
or (b) above except to the extent that it has been materially prejudiced
(through forfeiture or impairment of procedural or substantive rights or
defenses) by such failure; and provided further that the failure to notify
the
indemnifying party shall not relieve it from any liability that it may have
to
an indemnified party otherwise than under subsection (a) or (b)
above. In case any such action is brought against any indemnified
party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel reasonably 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 will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided,
however, that the
indemnified party shall have the right to employ counsel to represent the
indemnified party and their respective controlling persons who may be subject
to
liability arising out of any claim in respect of which indemnity may be sought
by the indemnified party against the indemnifying party under this
Section 7 if the employment of such counsel shall have been authorized in
writing by the indemnifying party in connection with the defense of such action,
if in the written opinion of counsel to either the indemnifying party or the
indemnified party, representation of both parties by the same counsel would
be
inappropriate due to actual or likely conflicts of interest between them or
the
indemnifying party shall have failed to employ counsel within a reasonable
period of time, and in that event the fees and expenses of one firm of separate
counsel (in addition to the fees and expenses of one local counsel in each
applicable jurisdiction) shall be paid by the indemnifying party. No
indemnifying party shall, without the prior written consent of the indemnified
party (which consent shall not be unreasonably withheld), effect any settlement
of any pending or threatened action in respect of which any indemnified party
is
or could have been a party and indemnity could have been sought hereunder by
such indemnified party unless such settlement (i) includes an unconditional
release of such indemnified party from all liability on any claims that are
the
subject matter of such action and (ii) does not include a statement as to
or an admission of fault, culpability or failure to act by or on behalf of
any
indemnified party.
(d) If
the
indemnification provided for in this Section is unavailable or insufficient
to
hold harmless an indemnified party under subsection (a) or (b) above, then
each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or liabilities
referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on
the
one hand and the Underwriters on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is
not
14
permitted
by applicable law, in such proportion as is appropriate to reflect not only
the
relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company bear to the total discounts and commissions received by the
Underwriters from the Company under this Agreement. The relative fault shall
be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state
a material fact relates to information supplied by the Company or the
Underwriters and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (d)
shall be deemed to include any legal or other expenses reasonably incurred
by
such indemnified party in connection with investigating or defending any action
or claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Offered Securities purchased by it were resold exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason
of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations in this subsection (d) to contribute are several
in proportion to their respective purchase obligations and not
joint.
(e) The
obligations of the Company under this Section shall be in addition to any
liability which the Company may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Securities Act or the Exchange Act; and the
obligations of the Underwriters under this Section shall be in addition to
any
liability which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange
Act.
8. Default
of
Underwriters. If any Underwriter or Underwriters defaults in
its or their obligations to purchase Offered Securities hereunder and the
aggregate principal amount of Offered Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10%
of
the total principal amount of Offered Securities, the non-defaulting
Underwriters may make arrangements satisfactory to the Company for the purchase
of such Offered Securities by other persons, including themselves, but if no
such arrangements are made by the Closing Date, the non-defaulting Underwriters
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Offered Securities that such defaulting Underwriter
or Underwriters agreed but failed to purchase. If any Underwriter or
Underwriters so defaults and the aggregate principal amount of Offered
Securities with respect to which such default or defaults occur exceeds 10%
of
the total principal amount of Offered Securities and arrangements satisfactory
to the non-defaulting Underwriters and the Company for the purchase of such
Offered Securities by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of the
non-defaulting Underwriters or the Company, except as provided in
Section 9. As used in this Agreement, the term “Underwriter” includes any
person substituted for a Underwriter under this Section. Nothing herein,
including the Company’s obligations pursuant to Section 9 hereof, will
relieve a defaulting Underwriter from liability for its default.
15
9. Survival
of Certain Representations
and Obligations. The respective indemnities, agreements,
representations, warranties and other statements of the Company or its officers
and of the several Underwriters set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation, or
statement as to the results thereof, made by or on behalf of any Underwriter,
the Company or any of their respective representatives, officers or directors
or
any controlling person, and will survive delivery of and payment for the Offered
Securities. If this Agreement is terminated pursuant to Section 8 or if for
any reason the purchase of the Offered Securities by the Underwriters is not
consummated other than such default by an Underwriter, the Company shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to
Section 5 and the respective obligations of the Company and the
Underwriters pursuant to Section 7 shall remain in effect. If
the purchase of the Offered Securities by the Underwriters is not consummated
for any reason other than solely because of the termination of this Agreement
pursuant to Section 8 or the occurrence of any event specified in
clause (iii), (v), (vi) or (vii) of Section 6(c), the Company will
reimburse the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities, provided that the Company shall not be
obligated under this Section 9 to reimburse the Underwriters for any
expenses (including any reasonable fees and disbursements of counsel) in excess
of $200,000.
10. No
Fiduciary
Duty. The Company acknowledges and agrees that in connection
with this offering or any other services the Underwriters may be deemed to
be
providing hereunder, notwithstanding any preexisting relationship, advisory
or
otherwise, between the parties or any oral representations or assurances
previously or subsequently made by the Underwriters: (i) no fiduciary or
agency relationship between the Company and any other person, on the one hand,
and the Underwriters, on the other, exists in connection with the offering
of
the Bonds; (ii) the Underwriters are not acting as advisors, expert or
otherwise, to the Company in connection with the offering of the Bonds and
such
relationship between the Company, on the one hand, and the Underwriters, on
the
other, is entirely and solely commercial, based on arms-length negotiations;
(iii) any
duties and obligations
that the Underwriters may have to the Company in connection with the offering
of
the Bonds shall be limited to those duties and obligations specifically stated
herein; and (iv) the Underwriters and their respective affiliates may have
interests that differ from those of the Company. Any review by the Underwriters
of the Company, the transactions contemplated hereby or other matters related
to
such transactions will be performed solely for the benefit of the Underwriters
and not on behalf of the Company. The Company hereby waives any claims that
the
Company may have against the Underwriters with respect to any breach of
fiduciary duty in connection with this offering.
11. Notices. All
communications hereunder will be in writing and, if sent to the Underwriters,
will be mailed, delivered or faxed and confirmed to each
of ,
or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at PacifiCorp, ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Legal Department; provided, however, that any
notice to a Underwriter pursuant to Section 7 will be mailed, delivered or
faxed and confirmed to such Underwriter.
12. Successors. This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the controlling persons referred to in
Section 7, and no other person will have any right or obligation
hereunder.
13. Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original, but all such counterparts shall together constitute
one and the same Agreement.
16
14. Applicable
Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to principles
of conflicts of laws.
The
Company hereby submits to the
exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of
or
relating to this Agreement or the transactions contemplated hereby.
17
If
the foregoing is in accordance with
the Underwriters’ understanding of our agreement, kindly sign and return to us
one of the counterparts hereof, whereupon it will become a binding agreement
between the Company and the several Underwriters in accordance with its
terms.
Very
truly yours,
PacifiCorp
By: _____________________________________
Name:
Title:
The
foregoing Underwriting Agreement
is
hereby confirmed and accepted
as
of the date first above written.
[Underwriters'
Representatives]
By: ___________________________________
Name:
Title:
SCHEDULE
A
|
Underwriter
|
Principal
Amount of Offered Securities
|
|||
|
[NAME]...
|
$ | |||
|
[NAME]...
|
$ | |||
|
[NAME]...
|
$ | |||
|
Total
|
$ | |||
SCHEDULE
B(i)
Issuer
Free Writing Prospectuses
See
Schedule B(ii)
SCHEDULE
B(ii)
FINAL
TERM SHEET
|
Issuer:
|
PacifiCorp
|
||
|
Expected
Ratings:
|
|||
|
Issue:
|
First
Mortgage Bonds
due
|
||
|
Offering
Size:
|
$
|
||
|
Coupon:
|
%
|
||
|
Trade
Date:
|
|||
|
Settlement
Date:
|
|||
|
Maturity:
|
|||
|
Treasury
Benchmark:
|
,
|
||
|
US
Treasury
Spot:
|
,
|
||
|
US
Treasury
Yield:
|
,
|
||
|
Spread
to
Treasury:
|
,
|
||
|
Re-offer
Yield:
|
,
|
||
|
Price
to Public (Issue
Price):
|
,
|
||
|
Gross
Proceeds:
|
,
|
||
|
Optional
Redemption:
|
,
|
||
|
Minimum
Denomination:
|
$
|
,
|
|
|
Bookrunners:
|
,
|
||
|
,
|
|||
|
,
|
|||
|
CUSIP:
|
|||
The
issuer has filed a registration
statement (including a prospectus) with the SEC for the offering to which this
communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents the issuer has
filed with the SEC for more complete information about the issuer and this
offering. You may get these documents for free by visiting ▇▇▇▇▇ on
the SEC Web site at ▇▇▇.▇▇▇.▇▇▇.
Alternatively,
the issuer, any underwriter or any dealer participating in the offering will
arrange to send you the prospectus if you request it by calling ,
at ,
,
at , or
,
at .
EXHIBIT
A
Form
of
Opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company
EXHIBIT
B
Form
of
Opinion of ▇▇▇▇▇▇▇ Coie LLP, special counsel to the Company