20050617Report per ON 29787.pdf

BRUCE N. WILLIAMS
Treasurer
;E~CEfVED
825 N.E. Multnomah, Suite 1900
Portland, Oregon 97232-4116
[phone]
FAX [phone]
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PACIFICORP 20fl5 JUH 17 A',': 30
ID.Ai:iDPIJBtICUllt I TIES COt-1HlSS10f1
June 16, 2005
VIA OVERNIGHT MAIL
Idaho Public Utilities Commission
Statehouse
472 West Washington Street
Boise, Idaho 83702
Attn: Ms. Jean D. Jewell
Commission Secretary
Re:Case No. P AC-05-
Order No. 29787
Report of First Mortgage Bond Offering in
Aggregate Principal Amount of $300 000 000
Dear Commissioners:
Pursuant to the referenced Order, PacifiCorp submits to the Commission 3 copies of each of the
following documents relating to PacifiCorp s June 13 , 2005 offering of $300 000 000 aggregate
principal amount of First Mortgage Bonds, 5.25% Series due 2035 (the "Bonds
Prospectus Supplement dated June 8, 2005
Underwriting Agreement between PacifiCorp and Barclays Capital Inc. and Credit Suisse
First Boston LLC, as Representatives of the several Underwriters, dated June 8 , 2005
Registration Statement on Form S-3 (filed pursuant to SEC Rule 462(b))
Report of Securities Issued
The enclosed Registration Statement on Form S-3 covers $50 000 000 of the aggregate
$300 000 000 principal amount of the Bonds. The balance of the principal amount of the Bonds
were offered and sold pursuant to PacifiCorp s separate Registration Statement on Form S-, a
copy of which was previously provided to the Commission. With regard to the use of the
proceeds from the issuance of the Bonds, please see "Use of Proceeds" on page S-8 of the
enclosed Prospectus Supplement.
Portlnd2-4521436.3 0017507-00039
PACIFIC POWER UTAH POWER
Idaho Public Utilities Commission
June 16, 2005
Page 2 of 2
Under penalty of perjury, I declare that I know the contents of the enclosed documents, and they
are true, correct, and complete.
Please contact me if you have any questions about this letter or the enclosed documents.
Sincerely,
~~ .
N lA~~
Bruce N. Williams
Treasurer
Enclosures
cc:Terri Carlock (Idaho Commission)
Portlnd2-4521436.3 0017507-00039
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EXECUTION COpy
ACIFICORP
$300 000 000
First Mortgage Bonds
25% Series due 2035
UNDERWRITING AGREEMENT
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June 8, 2005
Barclays Capital Inc.
Credit Suisse First Boston LLC
ABN AMRO Incorporated
BNP Paribas Securities Corp.
Scotia Capital (USA) Inc.
Wachovia Capital Markets, LLC
Wells Fargo Securities, LLC
c/o Credit Suisse First Boston LLC
Eleven Madison Avenue
New York, N. Y. 10010
Ladies and Gentlemen:
The undersigned, PacifiCorp, an Oregon corporation (the "Company ), hereby confirms
its agreement with the several Underwriters as follows:
1. Definition of Certain Terms. Except as may otherwise be defined herein, the
following terms used herein shall have the following meanings:
(a)
(b)
Company.
Act" shall mean the Securities Act of 1933 , as amended.
Articles" shall mean the Third Restated Articles of Incorporation of the
(c) "Bonds" shall mean $300 000 000 of the Company s First Mortgage
Bonds, 5.25% Series due 2035 (the "Bonds
(d)Commission" shall mean the Securities and Exchange Commission.
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. .
(e)Counsel for the Company 'lshall meanStoel Rives LLP.
(f) "Coun~el for the Underwriters" shall mean Milbank, Tweed, Hadley &
McCloy L~P.
(g) "
EffeotiveDate" shall mean, with respect to the Registration Statement at
any time, the later of (i) the date that such Registration Statement or any post-effective
amendment thereto 'was or is declared effeCtive by the Commission under the Act and (ii)
the date that,the Company s Annual Report on Form 10-K for its most recently completed
fiscal year is filed w~th the Commission under the Exchange Act, in each case at suchtime.
(h)
amended.
Exchange Act" shall mean the Securities Exchange Act of 1934, as
(i) "Incorporated Documents" shall mean the documents filed by the
Company with the Commission under the Exchange Act that are, or are deemed to be
incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 under the
Act.
G) "Mortgage" shall mean the Company s Mortgage and Deed of Trust, dated
as of January 9, 1989, with JPMorgan Chase Bank, N.A. (formerly known as The Chase
Manhattan Bank), as successor trustee (the "Trustee ), as heretofore amended and
supplemented by supplemental indentures, and as it is to be further amended and
supplemented by the Supplemental Indenture.
(k) ,Prospectus" shall mean the combined prospectus relating to, among oth~r
securities, the Bonds included in the Registration Statement pursuant to Rule 429 of the
Regulations under the Act, as supplemented by a prospectus supplement specifying the
terms of the Bonds and the plan of distribution thereof (the "Prospectus Supplement"), as
filed pursuant to Rule 424(b) of the Regulations under the Act, including the Incorporated
Documents.
(1) "Registration Statement" shall mean the registration statement on Form
3 (No. 333-91411) (the "Registration Statement"), including the combined prospectus
therein (relating to $1 850 000 000 aggregate offering price of the Company s first
mortgage bonds, including the Bonds, no par serial preferred stock and unsecured debt
securities) and exhibits thereto, for the registration under the Act of $1 ,550 000 000
aggregate offering price of the Company s first mortgage bonds, including the Bonds, no
par serial preferred stock and unsecured debt securities, in each case, filed by the
Company with the Commission, as amended and supplemented to the date of this
Agreement and deemed to include the Incorporated Documents. If the Company has filed
an abbreviated registration statement to register additional first mortgage bonds pursuant
to Rule 462(b) under the Act (the "Rule 46202) Regis ration Statement ), then any
reference herein to the term "Registration Statement" shall be deemed to include such
Rule 462(b) Registration Statement.
(m) "Regulations" shall mean the applicable published rules and regulations of
the Commission under the Act, the Exchange Act and the Trust Indenture Act, as the case
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may be.
(n) "Statements of Eligibility" shall mean the part of the Registration
Statement that constitutes the statements of eligibility on Form T -1 under the Trust
Indenture Act.
(0) "Supplemental Indenture" shall mean the Eighteenth Supplemental
Indenture to the Mortgage to be dated as of June 1, 2005 relating to the Bonds in
substantially the form heretofore delivered to the Underwriters.
(P)
amended.
Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
(q) "
Underwriters" shall mean the several firms or corporations named in
Schedule I hereto and any underwriter substituted as provided in Section 4( c) hereof and
Underwriter" shall mean one of the Underwriters.
(r) "amend
" "
amendment
" "
amended
" "
supplement" or "supplemented"
with respect to the Registration Statement or the Prospectus shall mean amendments or
supplements to the Registration Statement or the Prospectus, as the case may be, and
Incorporated Documents filed after the date of this Agreement and prior to the completion
of the distribution of the Bonds; provided, however that any supplement to the
Prospectus filed with the Commission pursuant to Rule 424(b) of the Regulations under
the Act with respect to an offering of the Company s first mortgage bonds other than the
Bonds shall not be deemed to be a supplement to, or a part of, the Prospectus.
2. Purchase and Sale. Upon the basis of the representations and warranties herein
contained, and subject to the terms and conditions set forth in this Agreement, the Compa~y agrees to
sell to each Underwriter named in Schedule I hereto and such Underwriter agrees, severally and not
jointly, to purchase from the Company, the principal amount of Bonds set forth opposite such
Underwriter s name in Schedule I hereto at a purchase price of98.765% of the principal amount thereof
plus accrued interest, if any, from June 13, 2005 to the Closing Date.
Barclays Capital Inc. and Credit Suisse First Boston LLC (the "Representatives ) represent that
they have been authorized by each Underwriter to enter into this Agreement on behalf of such
Underwriter, to confirm the statements described in Section 8( e) hereof and to act for it in the manner
herein provided. All obligations of the Underwriters hereunder are several and not joint. Any action
under or in respect of this Agreement may be taken by the Representatives and such action will be
binding upon all the Underwriters.
The Company has been advised by the Underwriters that they propose to (i) make a public
offering of the Bonds as soon as the Underwriters deem advisable after this Agreement has been
executed and delivered and (ii) initially offer the Bonds to the public at the public offering price set
forth in the Prospectus.
3. Representations and Warranties of the Company. The Company represents and warrants
, and agrees with, the several Underwriters as follows:
(a)Filing of Registration Statement and any Preliminary Prospectus with
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Commission. The Company meets the requirements for use of Form S-3 under the Act, the
Company has filed with the Commission the Registration Statement and each preliminary
prospectus relating to the Bonds, if any, required to be filed pursuant to Rule 4 24(b) of the
Regulations under the Act; and the Registration Statement has been declared effective by the
Commission under the Act and meets the requirements set forth in paragraph (a)(l)(ix) or
(a)(l)(x) of Rule 415'lofthe Regulations under the Act and complies in all other material respects
with such Rule 415.
(b)Registration Statement Prospectus~ Incorporated Documents . (i) No stop order
suspending the' effectiveness of the Registration Statement has been issued and no proceeding for
that purpose has ;been instituted or, to the kn6wledge of the Company, threatened by the
Commission; (ii) the Registration Statement, at the Effective Date, each preliminary prospectus
relating to the Bonds, if any, at the time it is filed with the Commission, and the Prospectus, at
the time it is filed with the Commission, complied and will' comply, as the case may be, except in
each case for Incorporated Documents, in all material respects with the applicable requirements
of the Act and the Trust Indenture Act and the re~pective Regulations thereunder; (iii) the
Registration Statement, at the Effective Date, did not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary in order to m~ke the
statements therein not misleading; (iv)the Prospectus, at the time it is filed with the
Commission, will not and each preliminary prospectus relating to the Bonds, if any, at the time it
was filed with the Commission, did not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and (v) each Incorporated
Document, at the time originally filed with the Commission pursuant to the Exchange Act
complied and will comply, as the case may be, in all material respects with the applicable
requirements of the Exchange Act and the Regulations thereunder; provided, however that the
Company makes no representations or warr~nties as to (A) any of the Statements of Eligibility or
(B) the information contained in or omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with information furnished in writing to the Company by the
Underwriters spec~fically for use in connection with the preparation of the Registration
Statement or the Prospectus.
( c) nancial Statements. The consolidated financial statements included or
incorporated by reference in the Registration Statement 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
Registration Statement and the Prospectus; and PricewaterhouseCoopers LLP, who examined
certain audited financial statements of the Company, and Deloitte Touche Tohmatsu, who has
examined certain audited financial statements of PacifiCorp Australia Limited Liability
Company, are each an independent registered public accounting firm as required by the Act and
the Regulations thereunder.
(d) Material Changes or Transactions. Except as reflected in, or contemplated by, the
Registration Statement and the Prospectus, since the respective most recent dates as of which
information is given in the Registration Statement 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
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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 Registration Statement 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 Registration Statement and the Prospectus.
(e) No Defaults. The Company is not in violation of 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, the effect of which is material to the Company and its subsidiaries taken
as a whole, and neither the execution and delivery of this Agreement, the Mortgage or the
Bonds, 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 thereofwill
conflict with, or result in a breach of, or constitute a default under (i) 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 (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 having jurisdiction over the Company or over its properties, the effect of which, singly or
in the aggregate, would be material to the Company.
(f) Agreement.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.
(g)
Mortgage The Mortgage has been duly authorized, executed and delivered by
the Company, has been duly qualified under the Trust Indenture Act 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 Prospectus.
(h) Bonds. The Bonds 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
Bonds conform to the description thereof in the Prospectus.
(i)Title to. and Description of. Properties: Lien of Mortgage on Properties The
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1,-
Company has good and sufficient title to aUlthe propertie~ described as owned by it in, and
subject to the lien of, the Mortgage (the "Properties ), subject only to Excepted Encumbrances
(as defined in the Mortgage) and 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; the descriptions in the Mortgage of
such of the Properties lias are described therein are adequate to constitute the Mortgage as a lien
thereon; and the Mortgage constitutes a vaHd first lien on the Properties, which include
substantially all of the permanent physical properties and franchises of the Company (other than
those expressly ,excepted), subject only to .the exceptions enum~rated above in this Section 3(i).
G) No 'Litigation There are no legal or governmental proceedings pending or
threatened against the Company or its subsidiaries that are required to be disclosed in the
Registration Statement and the Prospectus other than those disclosed therein.
(k) Due Incorporation anq Qualifica ion of Company. The Company has been duly
incorporated and is validly existing as a corporatiqn 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 Prospectus and (ii) to execute and deliver, and perform its obligations under, this
Agreement, the Mortgage and the Bonds; 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 of the Company and its subsidiaries taken as a whole.
(1) Keeping of Records 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 authori~ation; (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 fQr 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.
Any certificate signed by any officer of the Company and delivered to the
Underwriters or to Counsel for the Underwriters shall be deemed a representation and warranty
by the Company to each Underwriter as to the statements made therein.
4. Qosing: Delivery of Bonds: Defaulting Underwriters. (a) Closing. Delivery of the
Bonds to the Underwriters, against payment of the purchase price therefor in immediately
available funds by wire transfer to an account designated by the Company, shall be made prior to
1 :00 P., New York City time, on June 13 2005 through the facilities of The Depository Trust
Company ("DTC"), or at such other time, date and location as may be agreed upon in writing by
the Company and the Representatives. Delivery of the documents required by Section 6 hereof
shall be made at such time and date at the offices of Milbank, Tweed, Hadley & McCloyLLP, or
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at such other location as may be agreed upon in writing by the Company and the Representatives.
The hour and date of such delivery and payment are herein called the "Closing Date.
(b) Delivery of Bonds. The certificates for the Bonds shall be registered in the
name of "Cede & Co." as nominee ofDTC, and delivered to DTC or its custodian not later than
1 :00 P. M., New York City time, on the business day prior to the Closing Date. For the purpose
of expediting the checking of the certificates for the Bonds by the Representatives on behalf of the
Underwriters, the Company agrees to make such certificates available to the Representatives for
such purpose at the offices of Mil bank., Tweed, Hadley & McCloy LLP, in New York, New York
not later than 3 :00 P., New York City time, on the business day prior to the Closing Date or at
such other time and place as may be agreed upon by the Company and the Representatives.
(c) Defaulting Underwriters. If on the Closing Date any Underwriter shall fail
to purchase and pay for the Bonds that such Underwriter has agreed to purchase and pay for
hereunder on such date (otherwise than by reason of any failure on the part of the Company to
comply with any of the provisions contained herein), the non-defaulting Underwriters shall be
obligated, severally and not jointly, to take up and pay for (in addition to the respective principal
amount of Bonds set forth opposite their respective names in Schedule I hereto) the principal
amount of Bonds that such defaulting Underwriter or Underwriters failed to take up and pay for
up to a principal amount of Bonds equal to, in the case of each such non-defaulting Underwriter
ten percent (10%) of the principal amount of Bonds set forth opposite the name of such non-
defaulting Underwriter in Schedule I hereto and the non-defaulting Underwriters shall have the
right, within 24 hours of such default, either to take up and pay for (in such proportion as may be
agreed upon among them), or to substitute another Underwriter or Underwriters, satisfactory to
the Company, to take up and pay for the remaining principal amount of Bonds that the defaulting
Underwriter or Underwriters agreed but failed to purchase. If any unpurchased Bonds still
remain, then the Company shall be entitled to a further period of 24 hours within which to procure
another party or other parties, members of the National Association of Securities Dealers; Inc. (or
if not members of such Association, who are not eligible for membership in such Association and
who agree (i) to make no sales within the United States, its territories or its possessions or to
persons who are citizens thereof or residents therein and (ii) in making sales to comply with such
Association s Conduct Rules) and satisfactory to the Representatives, to purchase such Bonds on
the terms herein set forth. In the event that, within the respective prescribed periods, the non-
defaulting Underwriters notify the Company that they have arranged for the purchase of such
Bonds, or the Company notifies the non-defaulting Underwriters that they have arranged for the
purchase of such Bonds, then the non-defaulting Underwriters or the Company shall have the
right to postpone the Closing Date for a period of not more than three full business days beyond
the expiration of the respective prescribed periods in order to effect whatever changes may thus be
made necessary in the Registration Statement or the Prospectus or in any other documents or
arrangements. In the event that none of the non-defaulting Underwriters or the Company has
arranged for the purchase of such Bonds by another party or parties as above provided, then this
. Agreement shall terminate without any liability on the part of the Company or any Underwriter
(other than an Underwriter that shall have failed or refused, otherwise than for some reason
sufficient to justify, in accordance with the terms hereof, the cancellation or termination of its
obligations hereunder, to purchase and pay for the Bonds that such Underwriter has agreed to
purchase as provided in Section 2 hereof), except as otherwise provided in Section 50) hereof.
Covenants of the Company The Company covenants and agrees that:
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(a) Filiri'g of Prospectus. The Company will promptly transmit copies of the
Prospectus, and any amendments or supplerp.ents thereto~ to the Commission for filing
pursuant to Rule 424(p) of the Regulations under the Act.
(b) Copies of Registra ion Statement and Prospectus: Stop Orders. The
Company will deliver to each of the Underwriters and Counsel for the Underwriters (i) one
signed copy of the Registration Statement as originally filed, including copies of exhibits
thereto (other than any exhibits incorporated by reference therein), (ii) signed copies of any
amendments and supplements to the Registration Statement, including copies of the
Incorporated Docu~ents (other than exhibits thereto), and (iii) a signed copy of each
consent and cert~ficate included or incorporated by reference in, or filed as an exhibit to, the
Registration Statement as so amended or supplemented; the Company will deliver to the
Underwriters as soon as practicable after the date of this Agreement as many copies of the
Prospectus as the Underwriters may reasonably request for 'the purposes contemplated by
the Act; the Company will promptly advise the Underwriters of the issuance of any stop
order under the Act with respect to the Registratiqn Statement (as it may be amended or
supplemented) or the institution of any proceedings therefor, or the suspension of the
qualification of the Bonds for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, of which the Company shall have received notice prior to the
completion of the distribution of the Bonds; and the Company will use its best efforts to
prevent the issuance of any such stop order and to secure the prompt removal thereof, if
issued.
(c) Filing of Amendments and Supplements. During the period when a
prospectus relating to the Bonds is required to be delivered under the Act by any
Underwriter or dealer, the Company will not file any amendment or supplement to the
Registration Statement (including a Rule 462(b) Registration Statement), the Prospectus
(including a prospectus relating to the Bonds filed pursuant to Rule 424(b) of the
Regulations under the Act that differs from the Prospectus as first filed pursuant to such
Rule 424(b)) or any Incorporated Document to which the Representatives shall reasonably
object as to substance or Counsel for the Underwriters shall reasonably object as to form.
(d) Compliance with Act.During the period when a prospectus relating to the
Bonds is required to be delivered under the Act by any Underwriter or dealer, the Company
will comply so far as it is able, and at its own expense, with all requirements imposed upon
it by the Act, as now and hereafter amended, and by the Regulations thereunder, as from
time to time in force, so far as necessary to permit the continuance of sales of or dealing in
the Bonds during such period in accordance with the provisions hereof and the Prospectus.
(e) Certain Events and Amendments or Supplements. If, during the period when
a prospectus relating to the Bonds is required to be delivered under the Act by any
Underwriter or dealer, (i) any event relating to or affecting the Company or of which the
Company shall be advised in writing by the Underwriters shall occur that as a result of
which, in the Company s opinion, the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they
were made, not misleading or (ii) it shall be necessary to amend or supplement the
Registration Statement or the Prospectus to comply with the Act, the Exchange Act or the
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Trust Indenture Act or the respective Regulations thereunder, the Company will forthwith at
its expense prepare and furnish to the Underwriters a reasonable number of copies of such
, .
amendment or supplement that will correct such statement or omission or effect such
compliance; provided, however that should such event relate solely to activities of any of
the Underwriters, then the Underwriters shall assume the expense of preparing and
furnishing copies of any such amendment or supplementL Notwithstanding the foregoing, in
case any Underwriter is required to deliver a prospectus relating to the Bonds after the
expiration of nine months after the date of this Agreement, the Company upon the request
of the Underwriters will, furnish to the Underwriters, at the expense of such Underwriter, a
reasonable quantity of a supplemented or amended Prospectus or supplements or
amendments to the Prospectus complying with Section 10 of the Act.
(f) IDue Sky Oualifica~. During the period when a prospectus relating to the
Bonds is required to be delivered under the Act by any Underwriter or dealer, the Company
will furnish such proper information as may be lawfully required and otherwise cooperate in
qualifying the Bonds for offer and sale under the blue sky laws of such jurisdictions as the
Underwriters may designate and will file and make in each year such statements or reports
as are or may be reasonably required by laws of such jurisdictions; provided, however that
the Company shall not be required to qualify as a foreign corporation or dealer in securities
or to file any consents to service of process under the laws of any jurisdiction.
(g)
Earning Statement. In accordance with Rule 158 of the Regulations under the
Act, the Company will make generally.available to its security holders, as soon as
practicable, an earning statement (which need not be audited) in reasonable detail covering
the 12 months beginning not later than the first day of the month next succeeding the month
in which occurred the effective date (within the meaning of Rule 158 of the Regulations
under the Act) of the Registration Statement.
(h) Exchange Act Documents~ Ratings Notification. The Company, during the
period when a prospectus relating to the Bonds is required to be delivered under the Act by
any Underwriter or dealer, will file promptly all documents required to be filed with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act; and the
Company will promptly notify the Underwriters of any written notice given to the Company
by any "nationally recognized statistical rating organization" (as defined for purposes of
Rule 15c3-1 under the Exchange Act) of any intended decrease in any rating of any
securities of the Company or of any intended change in any such rating that does not
indicate the direction of the possible change, in each case by any such rating organization.
(i) No Issuance Period.Between the date of this Agreement and the earlier of
(i) the termination of any trading restrictions with respect to the Bonds and (ii) the third
business day after the date of this Agreement, the Company will not, without the prior
written consent of the Representatives, sell, offer to sell, or enter into any agreement to sell
any of its first mortgage bonds.
(j)
Payment of Expenses. Whether or not the transactions contemplated
hereunder are consummated or this Agreement is terminated, the Company will pay, except
as otherwise expressly provided herein, all expenses incident to the performance of its
obligations under this Agreement, including (i) the preparation and filing of the Registration
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Statement and the Prospectus (and any amendments or, supplements thereto), any
preliminary prospectus relating to the Bonds and any Incorporated Documents and exhibits
thereto, and this Agreement, (ii) the issuance and delivery of the Bonds to the Underwriters
(iii) the fees and disbursements of the Company ' counsel, including Milbank Tweed
Hadley & McCloy LLP in its role as counsel to the Company with regard to matters under
the Public Utility Holding Company Act of 1935, and accountants, (iv) the fees and
expenses of the Trustee and its counsel, (v) the fees and expenses in connection with the
rating of the Bonds 'by securities rating organizations, (vi) the expenses in connection with
the qualification of the Bonds under securities laws in accordance with the provisions of
Section 5(t) hereof, including filing fees ~nd the fees and disbUrsements of Counsel for the
Underwriters in connection therewith and in connection with the preparation of any blue
sky survey, (vii) the printing and delivery to the Underwriters of copies of the Registration
Statement and the Prospectus (and any amendments or supplements thereto), the
Supplemental Indenture and the Incorporated Documents, (viii) the printing and delivery to
the Underwriters of copies of any blue sky survey, (ix) any expenses incurred by the
Company in connection with a "road show" prese;ntation to potential investors and (x) the
preparation, execution, filing and recording of the Supplemental Indenture. If this
Agreement is terminated in accordance with the provisions of Section 6, 7 or 9 hereof, or if
this Agreement is terminated pursuant to Section 4( c) hereof and could have been
terminated in accordance with the provisions of Section 6, 7 or 9 hereof, the Company shall
reimburse the Underwriters for their reasonable out-of-pocket expenses (other than counsel
fees and disbursements) in an amount not exceeding $15,000 in the aggregate, and counsel
fees and disbursements. The Company shall not be required to pay any amount for any
expenses of the Underwriters except as provided in this Section 50). The Company shall
not in any event be liable to any of the Underwriters for damages on account of the loss of
anticipated pn?fits.
(k) Promptly after the Closing Date, the Company will effect such filing and
recordation with respect to the Mortgage in such manner and in all such places as may be
required by law in 9rder fully to preserve and protect the security of the holders of the
Bonds under the Mortgage and, thereafter, will furnish the Representatives with an opinion
of counsel that such filing and recordation with respect to the Mortgage have been effected.
6. Conqitions to Underwriters' Obligations The several obligations of the
Underwriters hereunder to purchase the Bonds shall be subject to the continuing accuracy of, and
compliance with, the representations and warranties of the Company contained herein on the
Closing Date (with the same force and effect as though expressly made on and as of the Closing
Date, except that references therein to the Registration Statement and the Prospectus shall include
any amendments or supplements thereto at the Closing Date), to the performance by the Company
of its obligations to be performed hereunder on or prior to the Closing Date and to the following
further conditions:
(a) filing of Prospectus with Commission: ~o Stop Order: Regulatory
Approvals The Prospectus, and any amendments or supplements thereto, shall have been
filed in the manner and within the time period required by Rule 424(b) of the Regulations
under the Act and, if applicable, the Rule 462(b) Registration Statement shall have become
effective by 10:00 a.m. New York City time on the business day following the date of this
Agreement; no stop order suspending the effectiveness of the Registration Statement shall
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have been issued and no proceedings for that purpose shall have been instituted or
threatened; the order dated May 17, 2005 of the Idaho Public Utilities Commission and theI order dated May 9, 2005 of the Public Utility Commission of Oregon, each authorizing the
issuance of the Bonds by the Company as contemplated by this Agreement; the order dated
April 27, 1988 of the Public Utilities Commission of the State of California exempting any
issuance of securities of the Company from its jurisdiction, the order of the Public Service
Commission of Utah issued on February 23, 2001 exempting the issuance of certain
securities of the Company from its jurisdiction, the order of the Washington State Utilities
and Transportation Commission issued on May 11 , 2005 as to the compliance by the
Company with the filing requirements ofRCW 80.08.040 and the order dated September
, 1996 (as clarified by letter order dated April 29, 1997) of the Public Service
Commission of the State of Wyoming exempting any issuance of securities of the Company
from its jurisdiction, in each case subject to certain conditions set forth therein, shall each
be in full force and effect and shall not then be either contested or the subject of review or
appeal, and such orders constitute the only approval, authorization, consent or other order of
any governmental body legally required for the authorization of the issuance and sale of the
Bonds by the Company pursuant to the terms of this Agreement, except such as may be
required under the Act, the Trust Indenture Act or under state securities or blue sky laws; no
authorization, approval or consent of the Commission under the Public Utility Holding
Company Act of 1935 is necessary in connection with the issuance of the Bonds; and the
Company shall have delivered to the Underwriters a certificate of the Company signed by
the Chairman, the President and Chief Executive Officer, the Senior Vice President and
General Counselor the Treasurer of the Company, dated the Closing Date, to such effect
with copies of such orders attached thereto and to the effect that, together with evidence
thereof, the Company is validly existing as a corporation in good standing under the laws of
the State of Oregon and that 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 of the Company and its subsidiaries taken as a whole.
(b) Opinion of Counsel for Company The Company shall have furnished to the
Underwriters the opinion of Counsel for the Company, dated the Closing Date, in form and
substance satisfactory to Counsel for the Underwriters, to the effect that:
(i) the Company is a duly organized and validly existing corporation
under the laws of the State of Oregon;
(ii) the Company has due corporate right and corporate authority to own
its properties and to carry on the business in which it is engaged as described in the
Prospectus and to execute and deliver, and perform its obligations under, this
Agreement, the Mortgage and the Bonds;
(iii) the Mortgage has been duly authorized, executed and delivered by
the Company, has been duly qualified under the Trust Indenture Act and
constitutes a valid and legally binding agreement of the Company enforceable
against the Company in accordance with its terms, except as limited by laws with
respect to or affecting the remedies for enforcement of the security provided for
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therein, which laws do not in the opinion of such counsel make such remedies
inadequate for the practical realizatiQn of the benefits of such security, and by
bankruptcy, in~olvency, 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
requirements of reasonableness, good faith and fair dealing;
(iv) the Bonds conform as to legal matters to the description thereof and
the stat~ments in regard thereto c~~tained in the Prospectus;
(v)' the Bonds have been duly authorized and executed 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
subject to requirements of reasonableness, good faith and fair dealing, and will be
entitled to the benefit of the security afforded by the Mortgage;
(vi) the Company has good and sufficient title to the Properties, subject
only to Excepted Encumbrances (as defined in the Mortgage) and to minor defects
an~ irregularities customarily found in properties of like size and character tha~, in
the opinion of such counsel, do not materially impair the use of the property
affected thereby in the operation of the business of the Company; the descriptions
in the Mortgage of such of the Properties as are described therein are adequate to
constitUte the Mortgage as a lien thereon; and the Mortgage constitutes a valid first
lien on the Properties, which include substantially all of the permanent physical
properties and franchises of the Company (other than those expressly excepted),
subject only to the exceptions enumerated above in this paragraph (vi);
(vii) the Registration Statement, at the Effective Date, and the
Prospectus, at the time it was filed pursuant to Rule 424(b) of the Regulations
under the "Act (except in each case as to financial statements and other financial
data contained therein, upon which such opinion need not pass), complied as to
form in all material respects with the requirements of the Act and the Trust
Indenture Act and the respective Regulations thereunder; the Registration
Statement has become, and on the Closing Date is , effective under the Act and, to
the best of such counsel's knowledge , no proceedings for a stop order with respect
thereto are threatened or pending under Section 8 of the Act; and in the course of
acting as counsel to the Company in connection with the preparation by the
Company of the Registration Statement and Prospectus , such counsel has (A)
reviewed the Registration Statement and the Prospectus, (B) read the Incorporated
Documents , and (C) participated in conferences and telephone conversations with
officers and other representatives of the Company, the independent public
accountants for the Company, and representatives and counsel for the
Underwriters, during which conferences and conversations the contents of the
Registration Statement and the Prospectus (and portions of the Incorporated
. .
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Documents) and related matters were discussed. Such counsel has also reviewed
and relied upon certain corporate records and documents, letters from counsel and.
accountants, and oral and written statements of officers and other representatives
of the Company and others as to the existence and consequence of certain factual
and other matters. Based solely on the foregoing, nothing has come to the
attention of such counsel that has caused them to believe that the Registration
Statement (except in each case as to financial statements and other fmancial data
contained therein, upon which such opinion need not pass), at the Effective Date
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 the Prospectus (except in each case as to financial statements
and other financial data contained therein, upon which such opinion need not
pass), at the time it was filed pursuant to Rule 424(b) of the Regulations under the
Act or on the Closing Date, included or includes any untrue statement of a
material fact or omitted 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;
(viii) this Agreement has been duly authorized, executed and delivered by
the Company;
(ix) the Idaho Public Utilities Commission and the Public Utility
Commission of Oregon have entered appropriate orders, which to the best
knowledge of such counsel remain in full force and effect on the date of such
opinion, each authorizing the issuance of the Bonds by the Company; the
Washington Utilities and Transportation Commission has entered an appropriate
order, which to the best knowledge of such counsel remains in full force and effect
on the date of such opinion, as to the compliance by the Company with the 'filing
requirements ofRCW 80.08.040; and, together with certain exemptive orders that
have been issued by each of the Public Utilities Commission of the State of
California, the Public Service Commission of Utah and the Public Service
Commission of Wyoming (which to the best of such counsel's knowledge remain
in full force and effect on the date of such opinion), such orders constitute the only
approval, authorization, consent or other order of any governmental body legally
required for the authorization of the issuance of the Bonds by the Company
pursuant to the terms of this Agreement, except such as may be required under the
Act, the Trust Indenture Act, the Federal Power Act, the Public Utility Holding
Company Act of 1935 or under state securities or blue sky laws;
(x) the consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof will not conflict with or result in
a breach of any of the terms or provisions of, or constitute a default under, (A) the
Articles or the Company s Bylaws, as amended, or any indenture, mortgage, deed
of trust or other material agreement for borrowed money the terms of which are
known to such counsel to which the Company is a party or by which it may be
bound or (B) any order, rule or regulation applicable to the Company of any state
regulatory body or administrative agency or other governmental body having
jurisdiction over the Company or its properties, the effect of which, singly or in the
aggregate, is material to the Company; and
(xi) , those portions of the Registration Statement or the Prospectus that
are stated therein to have been made on the authority of such counsel have been
reviewed by such counsel and, as to matters of law and legal conclusions, are
correct.
In rendering such opinion, Counsel for the Company may; rely, (i) as to matters involving
the application of the laws of the State of New York, upon the opinion of Counsel for the
Underwriters rendered pursuant to Section 6( d) hereof and (ii) as to matters of fact, to the,
extent deeme~ proper, on certificates ofre~ponsible officers of the Company and its
subsidiaries and of public officials. References to the Registration Statement and the
Prospectus in this Section 6(b) shall include any amendments or supplements thereto at the
date such opinion is rendered.
( c) Opinion of General Counsel of Company.The Company shall have
furnished to the Underwriters the opinion of General Counsel of the Company, dated the
Closing Date, in form and substance satisfactory to Counsel for the Underwriters, to the
effect that:
(i) to the best of such counsel's knowledge and information, there are no
legal or governmental proceedings pending or threatened against the Company or its
subsidiaries that are required to be disclosed in the Registration Statement and the
Prospectus pursuant to the Act, the Exchange Act or the Regulations, other than
those disclosed therein;
,(ii) each Incorporated Document as originally filed pursuant to the
Exchange Act (except as to financial statements and other financial data contained
therein, upon which such opinion need not pass) complied as to form when so filed
in all material respects with the requirements of the Exchange Act and the
Regulations thereunder; and
(iii) the consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default under, any order
rule or regulation applicable to the Company of any court or any federal regulatory
body having jurisdiction over the Company or its properties, the effect of which
singly or in the aggregate, is material to the Company.
In rendering such opinion, General Counsel to the Company may rely, (i) as to
matters involving the application of the laws of the State of New York, upon the opinion
of Counsel for the Underwriters rendered pursuant to Section 6( d) hereof and (ii) as to
matters of fact, to the extent deemed proper, on certificates of public officials. References
to the Registration Statement and the Prospectus in this Section 6( c) shall include any
amendments or supplements thereto at the date such opinion is rendered.
(d) Opinion of Counsel for Underwriters. The Underwriters shall have received
the opinion of Counsel for the Underwriters, dated the Closing Date, with respect to the
matters set forth in paragraphs (iii), (iv) and (v), the first, second and third clauses of
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paragraph (vii) and paragraph (viii) of Section 6(b) hereof and other related matters as the
Underwriters may reasonably require, and the Company shall have furnished to Counsel forI the Underwriters such documents as they request for the purpose of enabling themto pass
upon such matters. In rendering such opinion, Counsel for the Underwriters may rely, (i) as
to matters involving the application of laws other than the laws of the State of New York
upon the opinion of Counsel for the Company rendered pursuant to Section 6(b) hereof and
(ii) as to matters of fact, to the extent deemed proper, on certificates of responsible officers
of the Company and its subsidiaries and of public officials.
(e) Letter of Accountants PricewaterhouseCoopers LLP shall have furnished to
the Underwriters a letter or letters, dated as of the date hereof and the Closing Date, in form
and substance satisfactory to the Underwriters, confirming that it is an independent
registered public accounting firm within the meaning of the Act and the Regulations
thereunder with respect to the Company and its subsidiaries and stating in effect that:
(i) in its opinion, the consolidated financial statements included or
incorporated by reference in the Registration Statement and the Prospectus and
audited by it comply as to form in all material respects with the applicable
accounting requirements of the Act and the Regulations thereunder;
(ii) on the basis of a reading of the unaudited consolidated financial
statements, if any, included or incorporated by reference in the Registration
Statement and the Prospectus and the latest available interim unaudited
consolidated financial statements of the Company, the performance of the
procedures specified by the Public Company Accounting Oversight Board
(United States) for a review of any such unaudited consolidated financial
information as described in AU 722 Interim Financial Information inquiries of
officials of the Company responsible for financial and accounting matters and a
reading of the minutes of meetings of the shareholders and the Board of
Directors of the Company and the Finance and Pricing Committees thereof
through a specified date not more than five days prior to the Closing Date
nothing came to its attention that caused it to believe that: (A) any material
modification should be made to the unaudited consolidated financial statements
if any, included or incorporated by reference in the Registration Statement and
the Prospectus for them to be in conformity with generally accepted accounting
principles or any such unaudited consolidated financial statements do not
comply as to form in all material respects with the applicable accounting
requirements of the Act or the Regulations thereunder; (B) for the period from
April!, 2005 to June 8 , 2005 , there were any decreases in consolidated
revenues, earnings on common stock or earnings per common share as compared
with the comparable period of the preceding year; or (C) at June 8, 2005 , there
was any change in the capital stock or long-term debt of the Company or any
decrease in its net assets as compared with the amounts shown in the most recent
consolidated balance sheet included or incorporated by reference in the
Registration Statement and the Prospectus, except in all instances for changes or
decreases that the Registration Statement or the Prospectus discloses have
occurred or may occur, or for changes or decreases that are described in such
letter that are reasonably satisfactory to the Underwriters; and
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(iii) 'I, if unaudited pro forma financial statements are included or incorporated
by reference in the Registration Sta~ement and the Prospectus, on the basis of a reading
of such financial statements, carrying out certain specified procedures, inquiries of
certain officials of the Company and the company acquired or to be acquired who have
responsibility for financial and accounting matters and proving the arithmetic accuracy
of the application of the pro forma adjustments to the historical amounts in such pro
forma financial statements, nothing came to its attention that caused it to believe that
such pro forma financial statements do not comply ih form in all materi;il respects with
the applicable accounting requirements of Rule 11-02 of Regulation S-X or that such
pro forma adjustments have not b~en properly applied 'to such historical amounts in the
compilation of such pro forma finanCIal statements.
Such letter shall also cover such other matters as the Underwriters shall reasonably
request, including but not limited to the "Management's Discussion and Analysis of Financial
Condition and Results of Operations" contained in the financial statements included or
incorporated by reference in the Registration Stat~ment and the Prospectus and any other
information of an accounting, financial or statistical nature included therein. References to the
Registration Statement and the Prospectus in this Section 6(d) shall include any amendments or
supplements thereto at the Closing Date.
(t) Certificate. On the Closing Date, there shall not have been, since the respective
dates as of which information is given in the Registration Statement and the Prospectus, as they
may then pe amended or supplemented, except as may otherwise be stated therein or
contemplated thereby, any material adverse change in the condition of the Company and its
subsidiaries taken as a whole, financial or otherwise, or in the earnings, affairs or business
prospects of the Company and its subsidiaries taken as a whole, whether or not arising in the
ordinary course of business, and the Underwriters shall have received a certificate of the
Company signed by the Chairman, the President and Chief Executive Officer, the Senior Vice
President and General Counselor the Treasurer of the Company, dated as of the Closing Date
to the effect that (i) there has been no such material adverse change, (ii) the other
representations and warranties on the part of the Company contained in this Agreement are true
and correct (with the same force and effect as though expressly made on and as of the Closing
Date, except that references therein to the Registration Statement and the Prospectus shall
include any amendments or supplements thereto at the Closing Date), (Hi) the Company has
complied with all agreements and satisfied all conditions on its part to be performed or satisfied
under this Agreement on or prior to the Closing Date and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings for that purpose
have been initiated or threatened by the Commission.
(g)
Ratings. Moody s Investors Service, Inc. and Standard & Poor s shall have
publicly assigned to the Bonds ratings of A3 and A-, respectively, which ratings shall be in
full force and effect on the Closing Date (whether or not the subject of any possible
downgrading) .
(h) Other Documents. On the Closing Date, Counsel for the Underwriters shall
have been furnished with such documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the Bonds as hereby
contemplated and related proceedings, or in order to evidence the accuracy or completeness
NY3:#7361586
of any of the representations or warranties, or the fulfillment of any of the conditions herein
, contained, and all proceedings taken by the Company in connection with the issuance and
sale of the Bonds as hereby contemplated shall be satisfactory in form and substance to the
Underwriters and Counsel for the Underwriters.
In case any of the conditions specified above in this Section 6 shall not have been fulfilled
this Agreement may be terminated by the Underwriters upon mailing or delivering written notice
thereof to the Company. Any such termination shall be without liability of either party to the other
party except as otherwise provided in Section 50) hereof and except for any liability under Section
8 hereof.
7. Conditions of Company s Obligations The obligations of the Company hereunder
are subject to the conditions set forth in Section 6(a) hereof exclusive of the first and last clauses
thereof. In case the condition specified above in this Section 7 shall not have been fulfilled, this
Agreement may be terminated by the Company by mailing or delivering written notice thereof to
the Underwriters. Any such termination shall be without liability of either party to the other party
except as otherwise provided in Section 50) hereof and except for any liability under Section 8
hereof.
8. Indemnification and Contribution. (a) Indemnification by Company. The Company
agrees to indemnify and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever
arising out of any untrue statement or alleged untrue statement of a material fact contained in
a preliminary prospectus relating to the Bonds, if any, including all documents then
incorporated by reference therein pursuant to Item 12 of Form S-, in the Incorporated
Documents, in the Registration Statement or the Prospectus, or in the Registration Statement
or the Prospectus as amended or supplemented (if any amendments or supplements thereto
shall have been made), or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein not misleading
unless such untrue statement or omission or such alleged untrue statement or omission was
made in reliance upon and in conformity with written information furnished to the Company
by any Underwriter expressly for use in the Registration Statement or the Prospectus (or any
amendment or supplement to either thereof) or arising out of, or based upon, statements in or
omissions from any of the Statements of Eligibility; provided, however any such indemnity
for a preliminary prospectus relating to the Bonds, if any, or the Prospectus shall not inure to
the benefit of any Underwriter (or of any person controlling such Underwriter) on account of
any loss, liability, claim, damage or expense arising from the sale of the Bonds to any person
if the Prospectus or any amendments or supplements to the Prospectus shall have been
furnished to any Underwriter on a timely basis and in such quantities to permit such
Underwriter to send ,or give to such person and it shall be established that such Underwriter
shall have failed to send or give to such person (i) with or prior to the written confirmation
of such sale, a copy of the Prospectus or such amendment or supplement, except the
Incorporated Documents, and the untrue statement or omission of a material fact contained
in such preliminary prospectus or the Prospectus and giving rise to such loss, liability, claim
damage or expense was corrected in the Prospectus or such amendment or supplement or
(ii) with or prior to the delivery of the Bonds to such person, a copy of such amendment or
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supplement to the Prospectus that shall have been furnished subsequent to such written
confirmation and prior to such delivery, exc~pt the IncorPorated Documents, and the untrue
statement or omission ,of a material fact contained in the Prospectus and giving rise to such
loss, liability, claim, damage or expense was corrected in such amendment or supplement;
(ii) against any and all loss, liability, claim, damage and expense whatsoever to
the extent of the aggregate amount paid in settlement of any litigation, commenced or
threatened or of any claim whatsoever based upon any such untrue statement or omission
or any such alleged untrue statement or omission, if such settlement is effected with the
written consent' of th~ Company; and
" '
I' (iii) against any and all expense whatsoever reasonably incurred in investigating,
preparing or defending against any litigation, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omissIon, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under clause (i) or (ii)
above.
(b) Indemnification of Company. Each Underwriter severally agrees to
indemnify and hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, and any amendments or supplements thereto, and each person, if any, who
controls the Company within the meaning of Section 15 of the Act against any and all loss
liability, claim, damage and expense described in the indemnity contained in Section 8(a) hereof
but only with respect to untrue statements or omissions, or alleged untrue statements or omis~ions
made in the Registration Statement (or any amendment thereto) or a preliminary prospectus
relating to the Bonds, if any, or the Prospectus (or ,any amendment or supplement thereto), in
reliance upon and in conformity with written information furnished to the Company by such
Underwriter expressly for use in the Registration Statement (or any amendment or supplement'
thereto) or any such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) General. Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure so to notify an indemnifying party shall not relieve it from any
liability on account of this indemnity agreement 'except to the extent that it has been prejudiced in
any material respect by such failure or from any liability that it may have otherwise than on
account of this indemnity agreement. An indemnifying party may participate at its own expense
in the defense of such action. If it so elects within a reasonable time after receipt of such notice
an indemnifying party, jointly with any other indemnifying parties receiving such notice, may
assume the defense of such action with counsel chosen by it and approved by the indemnified
parties defendant in such action, unless such indemnified parties reasonably object to such
assumption on the ground that there may be legal defenses available to them that are different
from or in addition to those available to such indemnifying party, in which case such
indemnifying party cannot assume the control of the defense. Such firm shall be designated in
writing by, in the case of parties indemnified under Section 8(b) hereof, the Representatives, and
in the case of parties indemnified under Section 8( a) hereof, the Company. If an indemnifying
party assumes the defense of such action the indemnifying parties shall not be liable for any fees
and expenses of counsel for the indemnified parties incurred thereafter in connection with such
action. Fees and expenses to be paid by the indemnifying parties shall be reimbursed as they are
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incurred. In no event shall the indemnifying parties be liable for the fees and expenses of more
than one counsel, including any local counsel, for all indemnified parties in connection with any.
one action or separate but similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the prior written
consent of each indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which such indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability claims that are the subject matter
of such proceeding and does not include a statement as to, or an admission of, fault, culpability or
a failure to act by or on behalf of an indemnified party.
(d) Contribution. If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under Section 8(a) or 8(b)
hereof in respect of any losses, liabilities, claims, damages or expenses (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, liabilities, claims, damages or
expenses (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 the Underwriters on the other from the
offering of the Bonds. If, however, the allocation provided by the immediately preceding sentence
is not permitted by applicable law, then such indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits 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 that resulted in such
losses, liabilities, claims, damages or expenses (or actions in rtfspect thereof), 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
underwriting discounts and commissions received by the Underwriters, in each case as set forth
on the cover page of the Prospectus Supplement. 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 statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution pursuant to this Section
8( d) were determined by pro rata allocation or by any other method of allocation that does not
take account of the equitable considerations referred to above in this Section 8( d). The amount
paid or payable by an indemnified party as a result of the losses, liabilities, claims, damages or
expenses (or actions in respect thereof) referred to above in this Section 8( d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11 (f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
(e) Confirmation of Certain Statements The Underwriters confirm that the
statements with respect to the public offering of the Bonds set forth with respect to market making
activities , in the seventh, eighth and ninth paragraphs under the caption "Underwriting" in the
Prospectus Supplement, are correct and were furnished in writing to the Company by the
Underwriters for inclusion in the Prospectus.
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9. Termination:" The Underwriters may', by notice to the Company, terminate this
Agreement at any time at or prior to the Closing Da~e, if (a) a batlking moratorium shall have been
declared either by federal authorities or authorities in the States of New York or Oregon, (b) trading
in securities genera~ly on the New York Stock Exchange or of any securities of the Company shall
have been suspended by the Commission or the New York Stock Exchange or there shall have been
established by the Commissidn or the New York Stock Exchange, any federal or state agency or the
decision of any court any limitation on the prices for such trading or any restrictions on the
distribution of such securities, (c) any outbreak or material escalation of hostilities or o~her calamity
or crisis affecting the financial markets of the United States shall have occurred, (d) a downgrading
shall have occurred of the B(j)nds or any other sechrlties of the Company by any "nationally
, ,
recognized statistical rating organization
" ,
(as defined for purposes of Rule 15c3-1 of the Regulations
under the Exchange Act) or (e) any change in the business or properties of the Company shall have
occurred, the effect of which is such as to make it impracticable to vroceed with the sale or delivery
of the Bonds and, in the case of any of the events specified in clauses (a) through (d) of this Section
9, the effect of such event, singly or together with any other such ~vents, is such as to make it, in the
judgment of the Representatives, impracticable to proceed with the sale or delivery of the Bonds.
Any termination hereofpursuant to this Section 9 shall be without liability of any party to any other
party except. as otherwise provided in Section 50) hereof and except for any liability under Section 8
hereof.
10. Representa~ions. Warranties anq Agreemen1.Uo Survive Delivery. All
representations, warranties and agreements contained in this Agreement, or contained in certificates
signed by officers, of the Company submitted pursuant hereto, shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of any Underwriter or any
controlling person of any Underwriter, or by or on behalf of the Company, and shall survive delivery
of the Bonds to the Underwriters.
11. Miscellaneous. The validity and interpretation of this Agreement shall be governed
by the laws of the State of New York. This Agreement shall inure to the benefit of the Company,
the Underwriters and, with respect to the provisions of Section 8 hereof, each controlling person
referred to in Section 8 hereof, and their respective successors, assigns, executors and
administrators. Nothing in this Agreement is intended or shall be construed to give to any other
person, firm or corporati9n any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. The term "successors" as used in this Agreement shall
not include any purchaser, as such purchaser, of any of the Bonds from any of the Underwriters.
This Agreement may be executed in any number of separate counterparts all of which together shall
constitute the same Agreement.
12. Notices and Authority to Act.All communications hereunder shall be in writing
(which may be facsimile transmission) and effective only upon receipt and, if to the Underwriters
shall be sent to Barclays Capital Inc. at the address set forth at the beginning of this Agreement, or
if to the Company, shall be sent to it at PacifiCorp, 825 N.E. Multnomah, Suite 1900, Portland
Oregon 97232, Attention of Bruce Williams, Treasurer.
NY3:#7361586
If the foregoing is in accordance with your understanding of our agreement, kindly sign
and return to the Company the enclosed duplicate hereof, whereupon this letter will become a
binding agreement between the Company and the several Underwriters in accordance with its
terms.
Very truly yours
::~
IFIC
Name:Bruce N. Williams
Title: Treasurer
Accepted as of the date first above written.
BARCLA YS CAPITAL INC.
CREDIT SUISSE FIRST BOSTON LLC
By: Credit Suisse First Boston LLC
Name:
Title:
On behalf of themselves and
as Representatives of the
several Underwriters
NY3:#7361586
If the foregoing is in accordance with ypUt;, understanding of our agreement, kindly sign
and return to the Company the enclosed duplicate hereof, whereupon this letter will become a
binding agreement between the Company and the several Underwriters in accoIclance with itstenns.
Accepted as of the date first above written.
BARCLA YS CAPITAL INC.
CREDIT SUISSE FIRST BOSTON LLC
By: Credit Suisse First Boston LLC
t4/t I?:
Name: jI-"..;;t- Pr~
Title:
,~~ ~
On. behalf of themselves and
as Representatives of the
several Underwriters
NY3:#1J61S86
Very troly yours,
, P ACIFICORP
, ,
By:
Name:
Title:
\11
, "! :
: 0
, Underwriter
Barclays Capital Inc.
Credit Suisse First Boston LLC
ABN AMRQ Incorporated
BNP Paribas Securities Corp.
Scotia Capital (USA) Inc.
Wachovia Capital Markets, LLC
Wells Fargo Securities, LLC
Total
NY3:#7361586
SCHEDULE I
Principal Amount
of Bonds
$112 500 000
$112 500 000
$ 15 000 000
$ 15 000 000
$ 15 000 000
$ 15 000 000
$ 15.000.000
EGEIVED , c' ,
It.
,...";-.,,
REPORT OF SECURITIES ISSUED
J one 13, 2005 zuns JUrA I 7 Ai1 ;:: 33
ACIFICORP
IOp,kiO PUBLIC. i r. ot,.
~."
~ I!.. 1 .0. ,. .
; ;
f1rt .
Description of securities:$300 000 000 ofPacifiCorp s First Mortgage Bonds
25% Series due June 15, 2035
Description Amount
Face value or principal amount $300 000 000
Plus premium or less discount 080 000)
Gross proceeds 298 920 000
Underwriter s spread or commission 625 000)
Securities and Exchange Commission registration fee (80 000)
State mortgage registration tax N/A
State commission fee (15 000)
Fee for recording indenture (15 000)
United States document tax N/A
10.Printing and engraving expenses (30 000)
11.Trustee s charges 000)
12.Counsel fees *(80 000)
13.Accountants' fees (45 000)
14.Cost of listing N/A
15.Miscellaneous expenses of issue (30 000)
(Describe large items)
16. T ota! deductions 925 000)
17.Net amount realized 295 995 000
Denotes estimate only.
* *
Includes estimated rating agency fees of $10 000 the Bonds.
All amounts rounded to near~st 1 000.
Portlnd2-4521667.20017507-O0039