Exhibit 1(c)
AVISTA CORPORATION
SENIOR NOTES, _____% SERIES DUE ____
-----------------
UNDERWRITING AGREEMENT
___________, 200_
[Underwriters
Representative]
Ladies and Gentlemen:
Avista Corporation, a Washington corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (collectively, the
"Underwriters") for whom you are acting as representative (in such capacity you
shall hereinafter be referred to as the "Representative") an aggregate of
$__________ principal amount of the Senior Notes, _____% Series due ____ (the
"Securities"), as set forth in Schedule I hereto. The Securities are to be
issued as an additional series of notes under the Indenture, dated as of April
1, 1998, between the Company and JPMorgan Chase Bank (formerly, The Chase
Manhattan Bank), as trustee (the "Trustee"), as it will be supplemented by an
Officer's Certificate dated ___________, 200_ (the "Officer's Certificate").
Such Indenture, as so supplemented and as it may be amended and further
supplemented being hereinafter called the "Indenture".
1. The Company represents and warrants to, and agrees with, each
of the Underwriters that:
(a) (i) A registration statement on Form S-3 (File No.
333-64652) in respect of the Securities and certain other securities
has been prepared and filed in accordance with the provisions of the
Securities Act of 1933, as amended (the "Act"), with the Securities and
Exchange Commission (the "Commission"); such registration statement has
been declared effective by the Commission, and no other document with
respect to the registration statement or documents incorporated by
reference therein has heretofore been filed or transmitted for filing
with the Commission (other than prospectuses filed pursuant to Rule
424(b) of the rules and regulations of the Commission under the Act,
each in the form heretofore delivered to the Underwriters). Such
registration statement, in the form in which it became effective and
(including the exhibits thereto, but excluding the Statements of
Eligibility in Form T-1) is hereinafter called the "Registration
Statement"; and the prospectus relating to the Securities, in the form
in which it was included in the Registration Statement at the time it
became
effective, as supplemented by the prospectus supplement containing the
terms of the Securities and the terms of the offering thereof, in the
form in which it is filed with the Commission pursuant to Rule 424(b)
under the Act, is hereinafter called the "Prospectus";
(ii) Pursuant to Rule 429 under the Act, the
Prospectus will be used as a combined prospectus relating to the
Registration Statement and to (a) the registration statement filed by
the Company with the Commission on July 2, 1999 (registration no.
333-82165) which, as subsequently amended, became effective on August
17, 1999 and (b) the registration statement filed by the Company with
the Commission on June 25, 2003 (registration no. 333-106491) which, as
subsequently amended, became effective on August 20, 2003; unless the
context otherwise requires, all references in this Agreement to the
Registration Statement shall be deemed to include such prior
registration statements;
(iii) Any reference herein to the Registration
Statement or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Act, as of the effective date or the date thereof, as the
case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of
the Company filed pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") after the
effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to any
amendment or supplement to the Prospectus shall be deemed to refer to
and include any documents filed after the date of such Prospectus,
under the Exchange Act and incorporated by reference in such
Prospectus.
(b) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been initiated or, to the best knowledge of the Company,
threatened by the Commission; and no order preventing or suspending the
use of any preliminary prospectus or the Prospectus has been issued by
the Commission;
(c) The Registration Statement, when it became effective,
conformed, and any further amendments thereto, when they become
effective, will conform, in all material respects to the requirements
of the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the Prospectus and any amendments or supplements
thereto, when filed with the Commission, will conform in all material
respects to the requirements of the Act and the Trust Indenture Act;
(d) The Registration Statement, when it became effective, and
any further amendments thereto when they become effective, did 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 not
2
misleading; and the Prospectus and any amendments and supplements
thereto, when they are filed or transmitted for filing with the
Commission and at the Time of Delivery, will not include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements made, in light of the circumstances
under which they were made, not misleading; provided, however, that the
representations and warranties contained in this subsection (d) shall
not apply to statements or omissions made in reliance upon and in
conformity with information furnished in writing by an Underwriter
through the Representative expressly for use in the Registration
Statement, the Prospectus or any amendment or supplement to either
thereof;
(e) The documents incorporated by reference in the Prospectus,
when they were filed with the Commission, and any further documents so
filed and incorporated by reference, when they are filed with the
Commission or become effective, as the case may be, (i) conformed and
will conform in all material respects to the requirements of the
Exchange Act or the Act, as the case may be, and the rules and
regulations of the Commission thereunder and (ii) did not and will not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements made, in light
of the circumstances under which they were made, not misleading;
(f) Except as set forth in or contemplated by the Prospectus,
(i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been (A) any
material adverse change in or affecting the business, financial
condition, shareholders' equity or results of operations of the Company
and its subsidiaries, considered as a whole, or any development
reasonably expected to result in such a material adverse change (in
each case, a "Material Adverse Change"), (B) any transaction entered
into by the Company or any subsidiary thereof which is material to the
Company and its subsidiaries as a whole other than transactions in the
ordinary course of business, and (C) any change in the capital stock or
long-term debt of the Company or any of its subsidiaries (except for
shares of common stock issued under the Company's Dividend-Reinvestment
and Stock Purchase Plan and employee stock plans and except for
scheduled maturities of long-term debt) and (ii) neither the Company
nor any of its subsidiaries has any contingent obligation which is
material to the Company and its subsidiaries as a whole;
(g) The Company has been duly incorporated and is validly
existing in good standing as a corporation under the laws of the State
of Washington, is duly qualified to do business and in good standing as
a foreign corporation under the laws of the States of California,
Idaho, Montana and Oregon, and has corporate and other power and
authority and has all material required approvals and authorizations to
own, lease and operate its properties, and to transact an electric
and/or gas public utility business in such jurisdictions;
3
(h) Each of Avista Capital, Inc., Avista Energy, Inc. and
Avista Advantage, Inc. is duly incorporated and validly existing in
good standing under the laws of the State of Washington;
(i) All of the issued shares of capital stock of Avista
Capital, Avista Energy and Avista Advantage have been duly and validly
authorized and issued, are fully paid and non-assessable; _____ shares
of Avista Capital's capital stock are issued and outstanding and the
Company is the record holder of _____ shares of such capital stock;
_____ shares of Avista Energy's capital stock are issued and
outstanding and Avista Capital is the record holder of _____ shares of
such capital stock; and _____ shares of Avista Advantage's capital
stock are issued and outstanding (excluding _____ shares of convertible
preferred stock which is held by unrelated parties) and Avista Capital
is the record holder of _____ shares of such capital stock and the
ownership interests of Avista Capital, Avista Energy and Avista
Advantage that are owned directly or indirectly by the Company are
owned free and clear of all liens, encumbrances, equities or claims;
(j) The Securities have been duly authorized by all necessary
corporate action on the part of the Company, and have been duly
executed by the Company and, when duly authenticated and delivered by
the Trustee under the Indenture, and issued, delivered and paid for in
accordance with this Agreement, will be duly issued and delivered by
the Company and will constitute valid and binding obligations of the
Company, entitled to the benefits provided by the Indenture and
enforceable against the Company in accordance with their terms,
subject, as to enforcement, (i) to bankruptcy, insolvency,
reorganization, arrangement, moratorium and other laws of general
applicability relating to or affecting creditors' rights, and (ii) by
general principles of equity, whether such enforceability is considered
a proceeding in equity or at law, and by rules of law governing
specific performance, injunction relief, foreclosure, receivership and
other equitable remedies (the "Enforceability Exceptions"), and are
entitled to the benefits provided by the Indenture; the Securities will
be substantially in the form previously delivered to the
Representative; and the Securities will conform in all material
respects to the description thereof contained in the Prospectus;
(k) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully
paid and non-assessable;
(l) The Indenture has been duly authorized, executed and
delivered, and constitutes a valid and legally binding instrument,
enforceable in accordance with its terms, subject as to enforcement, to
the Enforceability Exceptions; the Indenture has been duly qualified
under the Trust Indenture Act; and the Indenture will conform in all
material respects to the description thereof contained in the
Prospectus;
(m) The issue and sale of the Securities and the compliance by
the Company with all of the provisions of the Securities, the Indenture
and this
4
Agreement and the consummation by the Company of the transactions
herein and therein contemplated will not (i) violate the Company's
Restated Articles of Incorporation, as amended, or By-laws or (ii)
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, (A) any statute or, to the knowledge of
the Company, any order, rule or regulation of any court or any federal
or state regulatory authority or other governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or any
of their properties, or (B) any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, which breach,
violation or default referred to in this clause (ii) would
individually, or in the aggregate, have, or would be reasonably
expected to have, a material adverse effect on the business, financial
condition, shareholders' equity or results of operations of the Company
and its subsidiaries considered as a whole (in each case, a "Material
Adverse Effect"); and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Securities or
the consummation by the Company of the transactions contemplated by
this Agreement or the Indenture, except the registration under the Act
of the Securities and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters, and such consents,
approvals, authorizations, filings or registrations as may be required
by the Washington Utilities and Transportation Commission (the "WUTC"),
the California Public Utilities Commission (the "CPUC"), the Idaho
Public Utilities Commission (the "IPUC"), the Public Service Commission
of the State of Montana (the "MPSC") and the Public Utility Commission
of Oregon (the "OPUC"), in each case in the manner contemplated hereby;
(n) None of the Company, Avista Capital, Inc., Avista Energy,
Inc. and Avista Advantage, Inc. is currently in violation of its
Restated Articles of Incorporation or By-laws, or in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any material indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument
to which it is a party or by which it or any of its properties may be
bound, except for the performance or observance of any such obligation,
agreement, covenant or condition that has been waived in accordance
with the applicable agreement;
(o) Other than as set forth in the Prospectus, neither the
Company nor any of its subsidiaries (i) is in violation of any statute,
or any rule, regulation, decision or order of any governmental agency
or body or any court relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or
restoration of the environmental or human exposure to hazardous or
toxic substances (collectively, "environmental laws"), (ii) does not
own or operate any real property which to its knowledge is contaminated
with any substance that
5
is subject to any environmental laws, (iii) is not to its knowledge
liable for any off-site disposal or contamination pursuant to any
environmental laws, and (iv) is not subject to any claim relating to
any environmental laws and the Company is not aware of any pending
investigation which could reasonably be expected to lead to such a
claim, which, in the case of (i), (ii), (iii), or (iv), would
reasonably be expected to result in a Material Adverse Effect;
(p) The statements set forth in the Prospectus under the
captions ["Description of the Offered Bonds"] and ["Description of the
Bonds"], insofar as they purport to constitute a summary of the terms
of the Securities, and under the captions "Underwriting" and "Plan of
Distribution", insofar as they purport to describe the provisions of
the laws and documents referred to therein, are accurate and fairly
present the information purported to be given;
(q) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject, which, if determined
adversely to the Company or any of its subsidiaries, would individually
or in the aggregate have a Material Adverse Effect; and, to the best of
the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(r) The Company is not, and, after giving effect to the
offering and sale of the Securities, will not be an "investment
company", as such term is defined in the United States Investment
Company Act of 1940, as amended (the "Investment Company Act");
(s) The Company is subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act; and
(t) Deloitte & Touche LLP, who have certified certain
financial statements of the Company and its subsidiaries, are
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder.
2. Subject to the terms and conditions herein set forth, (a) the
Company agrees to issue and sell to each of the Underwriters, severally and not
jointly, and each of the Underwriters agrees, 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 ___________, 200_ to the
Time of Delivery hereunder, the principal amount of the securities set forth
opposite the name of such Underwriter in Schedule I hereto.
3. Upon the authorization by the Representative of the release of the
Securities, the several Underwriters propose to offer the Securities for sale
upon the terms and conditions set forth in this Agreement and the Prospectus.
4. (a) The Securities to be purchased by each Underwriter hereunder
will be represented by one or more definitive global Securities in book-entry
form to be
6
deposited with The Depository Trust Company ("DTC") or its designated custodian.
The Company will deliver the global Securities to DTC or such custodian to be
credited to the account of the Representative, for the account of each
Underwriter, against payment by or on behalf of such Underwriter of the purchase
price therefore by wire transfer of Federal (same day) funds. The Company will
cause the certificates representing the Securities to be made available to the
Representative for checking at least twenty-four hours prior to the Time of
Delivery (as defined below) at the office of DTC or its designated custodian
(the "Designated Office"). The time and date of such delivery and payment shall
be __________, New York City time, on ___________, 200_ or such other time and
date as the Representative and the Company may agree upon in writing. Such time
and date are herein called the "Time of Delivery";
(b) The documents to be delivered at the Time of Delivery by
or on behalf of the parties hereto pursuant to Section 7 hereof, including the
cross receipt for the Securities and any additional documents requested by the
Underwriters pursuant to Section 7(k) hereof, will be delivered at the offices
of Xxxxx Xxxxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "Closing Location"), and the Securities will be delivered at the Designated
Office, all at the Time of Delivery. A meeting will be held at the Closing
Location at _________, New York City time, on the New York Business Day next
preceding such Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Agreement, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday,
which is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by the
Representative and to file such Prospectus pursuant to Rule 424(b)
under the Act not later than the Commission's close of business on the
second business day following the execution and delivery of this
Agreement; to make no further amendment or any supplement to the
Registration Statement or Prospectus prior to the last Time of Delivery
which shall be reasonably disapproved by the Representative promptly
after reasonable notice thereof; to advise the Representative, promptly
after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed
and to furnish the Representative with copies thereof; 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 is
required in connection with the offering or sale of the Securities; to
advise the Representative, 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 prospectus, of the suspension
of the qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of
7
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 prospectus or suspending any such
qualification, promptly to use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representative may reasonably request to qualify the Securities for
offering and sale under the securities laws of such jurisdictions as
the Representative may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Securities, provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction;
(c) Prior to __________, New York City time, on the New York
business day succeeding the date of this Agreement, or as soon
thereafter as may be reasonably practicable, to furnish the
Underwriters with written and electronic copies of the Prospectus in
such quantities as the Representative may from time to time reasonably
request, and, if the delivery of a prospectus is required at any time
prior to the expiration of nine months after the time of issue of the
Prospectus in connection with the offering or sale of the 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 is
delivered, not misleading, or, if for any other reason it shall be
necessary during such period to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference
in the Prospectus in order to comply with the Act, the Exchange Act or
the Trust Indenture Act, to notify the Representative and upon their
reasonable 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 the Representative may from time
to time reasonably request of an amended Prospectus or a supplement to
the Prospectus which will correct such statement or omission or effect
such compliance, and in case any Underwriter is required to deliver a
prospectus in connection with sales of any of the Securities at any
time nine months or more after the time of issue of the Prospectus,
upon their request but at the expense of such Underwriter, to prepare
and deliver to such Underwriter as many written and electronic copies
as such Underwriter may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen 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
8
audited) covering a period of at least 12 months beginning after the
later of (i) the effective date of the most recent post-effective
amendment to the Registration Statement to become effective prior to
the date of this Agreement and (ii) the date of the Company's most
recent Annual Report on Form 10-K filed with the Commission prior to
the date of this Agreement, which will satisfy the provisions of
Section 11(a) of the Act and the rules and regulations thereunder
including Rule 158;
(e) During the period beginning from the date hereof and
continuing to and including the later of (i) the completion of the
distribution of the Securities, as shall be promptly notified to the
Company by the Representative upon such completion, but in no event
shall such period exceed [90] days from the Time of Delivery, and (ii)
the Time of Delivery, not to offer, sell, contract to sell or otherwise
dispose of, except as provided hereunder, any debt securities of the
Company that are substantially similar to the Securities, without the
prior written consent of the Representative (it being understood that
this paragraph shall not prohibit the issuance of commercial paper or
other debt securities with scheduled maturities of less than one year,
debt securities issued in connection with any credit facility, or debt
securities issued as collateral for other obligations);
(f) To use the net proceeds received by it from the sale of
the Securities pursuant to this Agreement in the manner specified in
the Prospectus under the caption "Use of Proceeds";
6. The Company hereby covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any preliminary prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any agreement among Underwriters, this Agreement, the Officer's Certificate
under the Indenture, the Blue Sky Memorandum, closing documents (including any
compilations thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Securities; (iii) any expenses in connection
with the qualification of the Securities for offering and sale under state
securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey, if any; (iv) any fees
charged by securities rating services for rating the Securities; (v) any filing
fees incident to, and the fees and disbursements of counsel for the Underwriters
in connection with any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities; (vi) the cost of
preparing the Securities; (vii) the fees and expenses of the Trustee and any
agent of the Trustee and the fees and disbursements of counsel for the Trustee
in connection with any officer's certificate under the Indenture and the
Securities; and (viii) all other costs and expenses incident to the performance
of its obligations hereunder which are not otherwise specifically provided for
in this Section. It is understood, however, that, except as provided in this
9
Section, and Sections 8 and 11 hereof, the Underwriters will pay all of their
own costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
7. The obligations of the Underwriters hereunder shall be subject, in
the discretion of the Representative, to the condition that all representations
and warranties and other statements of the Company herein are, at and as of the
Time of Delivery, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) under the Act within the applicable time period
prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 5(a) 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 threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the reasonable satisfaction of the Representative;
(b) There shall have been issued and there shall be in full
force and effect, (i) appropriate orders of the WUTC, the IPUC and the
OPUC permitting the issuance and sale of the Securities on the terms
herein set forth or contemplated, and containing no provision
reasonably unacceptable to the Representatives, it being understood
that no such order in effect on the date of this Agreement contains any
such unacceptable provision, and (ii) appropriate exemptive orders of
the MPSC and the CPUC;
(c) Xxxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters,
shall have furnished to the Representative such written opinion or
opinions, dated the Time of Delivery, with respect to the incorporation
of the Company, the Indenture, the Securities, the Registration
Statement and the Prospectus, as well as such other related matters as
the Representative may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters. In rendering such opinion or
opinions, Xxxxxxxx & Xxxxxxxx LLP may rely, as to the incorporation of
the Company and as to all other matters governed by Washington,
California, Idaho, Montana or Oregon law, upon the opinion of Xxxxxx
Xxxxxx White & XxXxxxxxx LLP referred to below;
(d) Xxxxx X. Xxxxx, Vice President and Chief Counsel for
Regulatory and Governmental Affairs to the Company, shall have
furnished to the Representative his written opinion or opinions, dated
the Time of Delivery, to the effect set forth in Exhibit A hereto;
10
(e) At the Time of Delivery, Xxxxxx Xxxxxx White & XxXxxxxxx
LLP and Xxxxx Xxxxxxxxxx LLP shall have furnished to the Representative
opinions, each dated as of the Time of Delivery, to the effect set
forth in Exhibit A hereto;
(f) On the date of the Prospectus at a time prior to the
execution of this Agreement and at the Time of Delivery, Deloitte &
Touche LLP shall have furnished to the Representative a letter or
letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to the Representative;
(g) Except as set forth in or contemplated by the Prospectus,
(i) since the respective dates as of which information is given in the
Prospectus there shall not have been (A) any Material Adverse Change,
(B) any transaction entered into by the Company or any subsidiary
thereof which is material to the Company and its subsidiaries as a
whole other than transactions in the ordinary course of business, or
(C) any change in the capital stock or long-term debt of the Company or
any of its subsidiaries (except for shares of common stock issued under
the Company's Dividend-Reinvestment and Stock Purchase Plan and
employee stock plans and except for scheduled maturities of long-term
debt) and (ii) neither the Company nor any of its subsidiaries shall
have any contingent obligation which is material to the Company and its
subsidiaries as a whole, the effect of which, in the case of any such
event specified in clauses (i) or (ii) above, is in the judgment of the
Representative so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or delivery of the
Securities on the terms and in the manner contemplated in this
Agreement or in the Prospectus;
(h) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities or
preferred stock by any "nationally recognized statistical rating
organization", as such term is defined by the Commission for purposes
of Rule 436(g)(2) under the Act, and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company's debt
securities or preferred stock;
(i) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange or on
the Pacific Stock Exchange; (ii) a suspension or material limitation in
trading in the Company's securities on any securities exchange or in
any over-the-counter market; (iii) a general moratorium on commercial
banking activities in New York declared by either Federal or New York
State authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States; or
(iv) the outbreak of hostilities or the escalation of existing
hostilities involving the United States or the declaration by the
United States of a national emergency or war, or the occurrence of any
other national or international calamity or crises, including without
limitation, acts of terrorism, or any change in financial, political or
economic conditions in the United States or elsewhere, if the effect of
any such event specified in this clause (iv) in the judgment of the
Representative, makes it
11
impracticable or inadvisable to proceed with the public offering or
delivery of the Securities on the terms and in the manner contemplated
in the Prospectus;
(j) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses; and
(k) The Company shall have furnished or caused to be furnished
to the Representative at the Time of Delivery certificates of officers
of the Company satisfactory to the Representative as to the accuracy of
the representations and warranties of the Company herein at and as of
the Time of Delivery, as to the performance by the Company of all of
its obligations hereunder to be performed at or prior to the Time of
Delivery, as to the matters set forth in subsections (a) and (h) of
this Section and as to such other matters as the Representative may
reasonably request.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as such
expenses are incurred; PROVIDED, HOWEVER, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any preliminary prospectus, the
Registration Statement or the Prospectus or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representative expressly for use therein
and PROVIDED, FURTHER, that the Company shall not be liable to any Underwriter
under this subsection in respect of any such loss, claim, damage or liability
arising out of or based upon an untrue statement or alleged untrue statement in,
or an omission or alleged omission from, any preliminary prospectus if (i) such
Underwriter sold securities to a person to whom it delivered a copy of such
preliminary prospectus, (ii) no copy of the Prospectus was delivered to such
person with or prior to the written confirmation of the sale involved, (iii) the
Company had previously furnished copies of the Prospectus in sufficient
quantities and sufficiently in advance of the Time of Delivery to allow for the
distribution thereof prior to the Time of Delivery and (iv) the defect in such
preliminary prospectus was corrected in the Prospectus;
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or
12
alleged untrue statement of a material fact contained in any preliminary
prospectus, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any preliminary
prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representative
expressly for use therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred;
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. Notwithstanding the foregoing, in any
such proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. The indemnifying party shall not, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party. The indemnified party shall not, without the
written consent of the indemnifying party, effect the settlement or compromise
of, or
13
consent to the entry of any judgment with respect to, any such pending or
threatened action or claim;
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Securities. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each 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 which resulted in such losses,
claims, damages or liabilities (or actions in respect 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 in the table on the cover page of the Prospectus. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by PRO
RATA allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall, except as limited by subsection (c) above, be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint;
14
(e) The obligations of the Company under this Section 8 shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 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 officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act;
9. (a) If any Underwriter shall default in its obligation to
purchase the Securities which it has agreed to purchase hereunder at a Time of
Delivery, the Representative may in its discretion arrange for itself or another
party or other parties to purchase such Securities on the terms contained
herein. If within thirty-six hours after such default by any Underwriter the
Representative does not arrange for the purchase of such Securities, then the
Company shall be entitled to a further period of thirty-six hours within which
to procure another party or other parties reasonably satisfactory to the
Representative to purchase such Securities on such terms. In the event that,
within the respective prescribed periods, the Representative notifies the
Company that it has so arranged for the purchase of such Securities, or the
Company notifies the Representative that it has so arranged for the purchase of
such Securities, the Representative or the Company shall have the right to
postpone the Time of Delivery for a period of not more than seven days, in order
to effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments to the Registration Statement or
the Prospectus which, in the reasonable judgment of the Representative, may
thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section 9 with like effect as if
such person had originally been a party to this Agreement with respect to such
Securities;
(b) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or Underwriters by the
Representative and the Company as provided in subsection (a) above, the
aggregate principal amount of such Securities which remains unpurchased does not
exceed one-tenth of the aggregate principal amount of all the Securities to be
purchased at the Time of Delivery, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the principal amount of
Securities which such Underwriter agreed to purchase hereunder at the Time of
Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its PRO RATA share (based on the principal amount of Securities which
such Underwriter agreed to purchase hereunder) of the Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default;
(c) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or Underwriters by the
Representative and the Company as provided in subsection (a) above, the
aggregate principal amount of such Securities which remains unpurchased exceeds
one-tenth of the aggregate principal amount of all the Securities to be
purchased at the Time of Delivery, or if the Company
15
shall not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Securities of a defaulting Underwriter
or Underwriters, then this Agreement shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company, except
for the expenses to be borne by the Company and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company shall not then be under any liability to any Underwriter except as
provided in Sections 6 and 8 hereof; but, if this Agreement is not consummated
for any other reason, the Company will reimburse the Underwriters through the
Representative for all out-of-pocket expenses approved in writing by the
Representative, including fees and disbursements of counsel, reasonably incurred
by the Underwriters in making preparations for the purchase, sale and delivery
of the Securities not so delivered, but the Company shall then be under no
further liability to any Underwriter except as provided in Sections 6 and 8
hereof.
12. In all dealings hereunder, the Representative shall act on behalf
of each of the Underwriters, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by such Representative.
All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered or sent by
mail, telex or facsimile transmission to the Representative at
_______________________________, Attention: __________________________ (with a
copy to the General Counsel at the same address); and if to the Company shall be
delivered or sent by mail to the address of the Company set forth in the
Registration Statement, Attention: Treasurer; Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and, to the extent provided in
Sections 8 and 10 hereof, the officers and directors of the Company and each
person who controls the Company or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Securities from any Underwriter shall be deemed a successor or assign
by reason merely of such purchase.
16
14. Time shall be of the essence of this Agreement.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
----------------------
17
If the foregoing is in accordance with your understanding,
please sign and return to us [8] counterparts hereof, and upon the acceptance
hereof by you, on behalf of each of the Underwriters, this Agreement and such
acceptance hereof shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that the acceptance by you of
this letter on behalf of each of the Underwriters is pursuant to the authority
set forth in the Agreement Among Underwriters, a copy of which shall be
submitted to the Company for examination, but without warranty on the part of
the Representative as to the authority of the signers thereof (other than the
Representative).
Very truly yours,
AVISTA CORPORATION
By:
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President, Chief Financial Officer and Treasurer
Accepted as of the date hereof:
--------------------
By:
----------------------------------------
Name:
Title:
On behalf of each of the Underwriters
18
SCHEDULE I
PRINCIPAL AMOUNT OF
UNDERWRITER SECURITIES TO BE PURCHASED
----------- --------------------------
..................... $
.....................
====================
Total.......................................... $
19
EXHIBIT A
CONTENTS OF OPINIONS OF COUNSEL
