PORTLAND GENERAL ELECTRIC COMPANY
JUNIOR SUBORDINATED DEBENTURES
UNDERWRITING AGREEMENT
October 3, 1995
Goldman Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Smith Barney Inc.
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Dear Sirs:
PORTLAND GENERAL ELECTRIC COMPANY, an Oregon corporation (the
"Company") confirms its agreement with you and each of the Underwriters named
in Schedule A attached hereto (which term shall also include any underwriter
substituted as hereinafter in Section 8 provided), with respect to the sale by
the Company as set forth in Section 2 and the purchase by the Underwriters,
acting severally and not jointly, of the aggregate principal amount of 8 1/4 %
Quarterly Income Debt Securities (QUIDS) (Junior Subordinated Deferrable
Interest Debentures, Series A) of the Company (the "Debentures") set forth
opposite their names in Schedule A. The Debentures will be issued under and
secured by the Company's Indenture dated as of September 1, 1995 to The Bank
of New York, as Trustee (the "Original Indenture"), as amended and
supplemented by the supplemental indenture thereto (the "Supplemental
Indenture") dated as of October 1, 1995, executed and delivered by the Company
to the Trustee (the Original Indenture, as supplemented by the Supplemental
Indenture, being sometimes hereinafter referred to collectively as the
"Indenture"). The Debentures are to mature December 31, 2035 and are to bear
interest at the rate set forth in the title thereof from October 10, 1995.
The Debentures are otherwise to conform to the description thereof to be
contained in the Supplemental Prospectus relating
to the Debentures referred
to in Section 1(a) hereof and to the provisions of the Indenture and the
Supplemental Indenture, a form of which Supplemental Indenture has been filed
as an exhibit to the Registration Statement referred to below. No amendment
to said form of Supplemental Indenture is to be made prior to the Closing Date
hereinafter referred to unless said amendment is first approved by you.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Underwriter that:
(a) A registration statement (File No. 33-62549) on Form S-3 with
respect to the Debentures, including a preliminary prospectus, copies of
which have heretofore been delivered to you, has been prepared by the
Company in conformity with the requirements of the Securities Act of
1933, as amended (the "Act"), the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the Rules and Regulations of the
Securities and Exchange Commission (the "Commission") under such Act, and
has been filed with and declared effective by the Commission. The
Company will file with or mail for filing to the Commission a
supplemental prospectus relating to the Debentures pursuant to Rule 424
under the Act. The registration statement when it became effective and
as it may be amended as of the date of this Agreement is hereafter
referred to as the "Registration Statement" and such supplemented
prospectus including all documents incorporated therein by reference is
hereafter referred to as the "Prospectus." If the Company files any
documents pursuant to Section 13 or 14 of the Securities Exchange Act of
1934, as amended (the "Exchange Act") after the time the Registration
Statement became effective and prior to the termination of the offering
of the Debentures by the Underwriters, which documents are deemed to be
incorporated by reference in the Prospectus, the term "Prospectus",
unless the context otherwise indicates or requires, shall refer to said
Prospectus as supplemented by the documents so filed from and after the
time said documents are filed with the Commission.
(b) The Commission has not issued an order preventing or
suspending the use of any prospectus relating to the Debentures, and when
the Registration Statement became effective and the Prospectus is filed
with the Commission and at all times subsequent thereto up to and at the
Closing Date (as hereinafter defined), (i) the Registration Statement and
the Prospectus and any amendment or supplement thereto will contain all
statements which are required to be stated therein by the Act, the Trust
Indenture Act and the Rules and Regulations of the Commission thereunder
and will in all respects conform to the requirements of such Act and such
Rules and Regulations and (ii) neither the Registration Statement nor the
Prospectus nor any amendment or supplement thereto will include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading; PROVIDED, HOWEVER, that the Company makes no
representations or warranties as to information contained in or omitted
from 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 either of you expressly for use
in the preparation thereof.
(c) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case
may be, conformed in all material respects to the requirements of the Act
or Exchange Act, as applicable, and the Rules and Regulations of the
Commission thereunder, and any further documents so filed and
incorporated by reference will, when they become effective or are filed
with the Commission, as the case may be, conform in all material respects
to the requirements of the Act or the Exchange Act, as applicable, and
the Rules and Regulations of the Commission thereunder; and none of such
documents contained or will contain an untrue statement of a material
fact or omitted or will omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, PROVIDED, HOWEVER, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon, and
in conformity with, written information furnished to the Company by
either of you expressly for use therein.
(d) The Company and each of its active subsidiaries have been
duly incorporated and are validly existing as corporations in good
standing under the laws of the respective jurisdictions of their
incorporation, with power and authority (corporate and other) to own
their respective properties and conduct their respective businesses as
described in the Prospectus; and each of the Company and such
subsidiaries is duly qualified to do business as a foreign corporation in
each jurisdiction in which the character of the properties owned or
leased by it or, to the Company's knowledge, the nature of the business
it transacts makes such qualification necessary.
(e) The Company and each of its active subsidiaries have valid
and sufficient grants, franchises, miscellaneous permits and easements,
free from unduly burdensome restrictions, adequate for the conduct of
their respective businesses in the territories in which they are now
conducting such businesses and the ownership of the respective properties
now owned by them
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and, except as otherwise set forth in the Prospectus,
there are no legal or governmental proceedings pending or, to the
Company's knowledge, threatened which might result in a material
modification, suspension or revocation thereof.
(f) Subsequent to the respective dates as of which information is
given in the Registration Statement and Prospectus and prior to the
Closing Date, and except as contemplated in the Prospectus, (i) the
Company has not incurred or will not have incurred any material
liabilities or obligations, direct or contingent, or entered into any
material transaction, not in the ordinary course of business, (ii) there
has not been and will not have been any material change in the capital
stock or funded debt of the Company or any material adverse change in the
financial position or results of operations of the Company and its
subsidiaries taken as a whole, and (iii) no material adverse legal or
governmental proceedings affecting the Company or the transactions
contemplated hereby have been or will have been instituted or, to the
Company's knowledge, threatened.
(g) On the Closing Date, the Debentures will have been duly
authorized, executed and authenticated and, when issued and delivered
hereunder, will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture and will
conform to the description thereof contained in the Prospectus; and the
execution and delivery of, and compliance with this Agreement, the
Debentures and the Indenture will not conflict with or constitute a
breach of or default under the Articles of Incorporation or Bylaws of the
Company, any indenture, mortgage, deed of trust or other agreement or
instrument by which the Company is or at the Closing Date will be bound,
or any law, administrative regulation or court decree.
(h) In the opinion of counsel for the Company, the Company is a
"subsidiary company" of a "holding company" within the meaning of the
Public Utility Holding Company Act of 1935, as amended (the "PUHCA"),
which holding company is exempt from application of all provisions of the
PUHCA except Section 9(a)(2) thereof.
2. PURCHASE AND SALE OF DEBENTURES. Upon the basis of the
representations and warranties and upon the terms and conditions herein set
forth, the Company agrees to sell to each of you, severally and not jointly,
and each of you, upon the basis of the representations and warranties herein
contained and subject to the conditions hereinafter stated, agrees to purchase
from the Company, severally and not jointly, the principal amount of
Debentures set forth opposite your name in Schedule A hereto at a purchase
price of 96.85% of the principal amount thereof.
3. OFFERING BY UNDERWRITERS. The Company is advised by you that each
of you, severally, propose to offer the Debentures to the public as soon as in
your judgment is advisable.
4. DELIVERY AND PAYMENT. The Debentures to be purchased by each
Underwriter hereunder will be represented by one or more definitive global
Debentures in book-entry form which will be deposited by or on behalf of the
Company with The Depositary Trust Company ("DTC") or its designated custodian.
The Company will deliver the Debentures to the Representatives, for the
account of each Underwriter, against payment by or on behalf of such
Underwriter of the purchase price therefor by certified or official bank check
or checks (or as otherwise agreed by the Company and the Representatives),
payable to the order of the Company in New York Clearing House (next day)
funds, by causing DTC to credit the Debentures to the account of the
Representatives at DTC. The Company will cause the certificates representing
the Debentures to be made available to Goldman, Sachs & Co. 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 9:30 a.m., New York
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City
time, on October 10, 1995 or such other time and date as Goldman, Sachs & Co.
and the Company may agree upon in writing. Such time and Date are herein
called the Time of Delivery."
Unless otherwise agreed to by the Company and the Representatives, the
documents to be delivered at the time of Delivery by or on behalf of the
parties hereto pursuant to Section 5 hereof, including the cross receipt for
the Debentures and any additional documents requested by the Underwriters
pursuant to Section 5(h) hereof, will be delivered at the offices of Morgan,
Lewis & Bockius LLP, 101 Park Avenue, New York, New York 10178 (the "Closing
Location"), and the Debentures will be delivered at the Designated Office, all
at the Time of Delivery. Unless otherwise agreed to by the Company and the
Representatives, a meeting will be held at the Closing Location at 3:00 p.m.,
New York City time, on the New York Business Day next preceding the 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 Section 4, "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 City are generally authorized or
obligated by law or executive order to close.
5. CONDITIONS TO UNDERWRITERS' OBLIGATIONS. Your several obligations
hereunder are subject to the accuracy of the representations and warranties on
the part of the Company herein at and as of the date hereof and at and as of
the Closing Date, to the accuracy of the statements of Company officers made
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at the Closing Date; no
proceedings for that purpose shall be pending before or threatened by the
Commission at the Closing Date; any request for additional information on
the part of the Commission (to be included in the Registration Statement
or the Prospectus or otherwise) shall have been complied with to the
satisfaction of Morgan, Lewis & Bockius LLP, counsel for the
Underwriters; subsequent to the execution of this Agreement, the rating
assigned by any nationally recognized securities rating agency to any
debt securities or preferred stock of the Company as of the date of this
Agreement shall not have been lowered at or before the Closing Date; and
no amendment or supplement to the Registration Statement or Prospectus
shall have been filed hereafter to which you shall have objected, in
writing, after having received reasonable notice.
(b) The legality and sufficiency of all proceedings relative to
the authorization and issuance of the stock shall have been approved by
Steven F. McCarrel, Deputy General Counsel of the Company and you shall
have received his opinion or opinions, dated the Closing Date, and in
form satisfactory to counsel for the Underwriters, to the effect that:
(i) The Company is a corporation duly organized and validly
existing and in good standing under the laws of the State of Oregon
and is duly qualified to do business as a foreign corporation in
the States of Arizona, California, Washington and Montana and the
District of Columbia, with power and authority (corporate and
other) to own its properties and operate its business, and neither
the character of the properties owned by it nor the nature of the
business it transacts makes necessary its licensing or
qualification as a foreign corporation in any other state or
jurisdiction;
(ii) The Company's subsidiaries have each been duly
organized and are validly existing and in good standing under the
laws of the states or jurisdictions in which they have been
organized, with power and authority (corporate and other) to own
their
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respective properties and to operate their respective
businesses, and each of such corporations is duly qualified to do
business as a foreign corporation in each jurisdiction in which the
character of the properties owned or leased by it or the nature of
the business it transacts makes such qualification necessary;
(iii) The Company and each of such active subsidiaries have
valid and sufficient grants, franchises, miscellaneous permits and
easements free from unduly burdensome restrictions, adequate for
the conduct of their respective businesses in the territories in
which they are now conducting such businesses and the ownership of
the respective properties now owned by them;
(iv) All material contracts to which the Company is a party
and which are described or referred to in the Prospectus are valid
and legally binding contracts of the Company, and, except as the
validity thereof may be the subject of litigation referred to in
the Prospectus, to the best of such counsel's knowledge, of the
other parties thereto;
(v) All authorizations, approvals, consents or other orders
of any governmental authority or agency required in connection with
the authorization, issuance and sale of the Debentures by the
Company pursuant to this Agreement have been obtained and continue
in full force and effect;
(vi) The Indenture has been duly authorized, executed and
delivered, has been duly qualified under the Trust Indenture Act,
and constitutes a valid and legally binding instrument in
accordance with its terms, except as limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization or other similar
laws relating to or affecting the enforcement of creditors' rights
generally and general equitable principles (whether considered in a
proceeding in equity or at law);
(vii) The Debentures are in due and proper form, have been
duly and validly authorized and executed by the Company and, when
authenticated and delivered in accordance with the Indenture and
paid for by the purchasers thereof in accordance with this
Agreement, will constitute valid and legally binding agreements of
the Company enforceable in accordance with their respective terms,
except as limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws relating to or affecting the
enforcement of creditors' rights generally and general equitable
principles (whether considered in a proceeding in equity or at
law); the Debentures have been listed (subject to official notice
of issuance) on the New York Stock Exchange;
(viii) The Debentures and the Indenture conform to the
descriptions thereof contained in the Registration Statement and
Prospectus and the statements in the Registration Statement and
Prospectus, recited therein as having been prepared or reviewed by
such counsel, are true and correct;
(ix) This Agreement has been duly authorized, executed and
delivered by the Company;
(x) The Registration Statement has become effective under
the Act, and, to the best of the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement is
in effect and no proceedings for that purpose are pending before or
threatened by the Commission, and the Registration Statement and
Prospectus, and any amendment or supplement thereto (except as to
financial statements and other
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financial data contained therein, as
to which such counsel need express no opinion) comply as to form in
all material respects with the applicable requirements of the Act,
the Trust Indenture Act and the Rules and Regulations of the
Commission under such Acts; and such counsel does not believe that
at the date hereof or at the Closing Date either the Registration
Statement or the Prospectus, or any such amendment or supplement,
contains any untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary in
order to make the statements therein not misleading;
(xi) The descriptions in the Registration Statement and
Prospectus of statutes, legal and governmental proceedings, and
contracts and other documents are, to the best of the knowledge of
such counsel, accurate and fairly present the information required
to be shown therein; and such counsel does not know of any legal or
governmental proceedings required to be described in the Prospectus
which are not described as required or any contracts or documents
of a character required to be described in the Registration
Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not described or filed as
required;
(xii) The execution and delivery of, and compliance with,
this Agreement, the Debentures and the Indenture will not conflict
with or constitute a breach of or default under the Articles of
Incorporation or Bylaws of the Company, any indenture, mortgage,
deed of trust or other agreement or instrument known to such
counsel by which the Company is bound, or any applicable law, or to
the best of his knowledge, any administrative regulation or court
decree; and
(xiii) The Company is a "subsidiary company" of a "holding
company" within the meaning of the PUHCA, which holding company is
exempt from application of all provisions of the PUHCA except
Section 9(a)(2) thereof.
In rendering such opinion counsel may rely as to matters involving the
laws of any jurisdiction other than the State of Oregon, upon the opinion or
opinions of such local counsel as shall be acceptable to you and counsel for
the Underwriters; and with respect to the opinions contemplated by clauses (i)
and (ii) of paragraph (b) of this Section 5, upon advices from public
officials as to the good standing of the Company and its subsidiaries.
(c) You shall have received from Morgan, Lewis & Bockius LLP,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the validity of the Debentures, the Indenture, including
the Supplemental Indenture, the Registration Statement, the Prospectus and
other related matters as you may require, and the Company shall have furnished
to such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
In giving the opinions contemplated by paragraph (c) of this Section 5,
counsel may rely on certificates of responsible officers of the Company as to
matters of fact and upon advice from state authorities as to the good standing
of the Company and its subsidiaries.
(d) You shall have received a certificate, dated the Closing
Date, signed by the Chairman, President or any Vice President and the
Treasurer or any Assistant Treasurer or the Controller of the Company, to the
effect that, to the best of their knowledge:
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(i) No stop order suspending the effectiveness of the
Registration Statement is in effect and no proceedings for such purpose
are pending before or threatened by the Commission;
(ii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus as supplemented on
the date of this Agreement, there has not been any material adverse
change in the condition of the Company and its subsidiaries, financial or
otherwise, or in the results of operations of the Company and its
subsidiaries, except as reflected in or contemplated by the Registration
Statement and the Prospectus as supplemented on the date of this
Agreement, and that except as so reflected or contemplated since such
dates there has not been any material transaction entered into by the
Company or any of its subsidiaries, other than transactions in the
ordinary course of business;
(iii) The Company does not have any material contingent
obligations which are not disclosed in the Registration Statement and the
Prospectus;
(iv) The representations and warranties of the Company
herein are true and correct in all material respects at and as of the
Closing Date; and
(v) The Company has performed all agreements herein
contained to be performed on its part at or prior to the Closing Date.
(e) You shall have received on the date hereof and on the Closing
Date, from Arthur Andersen LLP, letters in form and substance satisfactory to
you.
(f) All approvals and consents of the Public Utility Commission
of Oregon required for the valid issuance and sale of the Debentures by the
Company in accordance with the provisions of this Agreement shall have been
obtained.
(g) Prior to the Closing Date and subsequent to the date of this
Agreement, the Company shall not have sustained a substantial loss by fire,
flood, accident or other calamity which, whether or not such loss shall have
been insured, nor shall any regulatory authority having jurisdiction over the
Company have made any materially adverse determination not described in the
Prospectus which, in any of the above events, in your judgment renders it
inadvisable to proceed with the delivery of the Debentures.
(h) The Company shall have furnished to you, in form and
substance satisfactory to you and to counsel for the Underwriters, such other
certificates and opinions as you may reasonably request with respect to the
matters contemplated herein.
(i) Subsequent to the date of this Agreement, (i) trading on the
New York Stock Exchange shall not have been suspended or limited by the New
York Stock Exchange, Inc. or by order of the Commission or any other
governmental authority having jurisdiction nor shall a general banking
moratorium have been declared by Federal or New York authorities; (ii) there
shall not have been any suspension of trading of any securities of the Company
on any exchange or in the over-the-counter market; (iii) there shall not have
been an outbreak or escalation of hostilities between the United States and
any foreign power, or of any other insurrection or armed conflict involving or
affecting the United States, or any substantial national or international
calamity or emergency, if in your judgment, the effect of any such outbreak,
escalation, insurrection, conflict, calamity or emergency makes it impractical
or inadvisable to proceed with completion of the delivery of the Debentures;
(iv) the rating assigned by any nationally recognized securities rating agency
to any debt securities or preferred stock of the Company
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shall not have been
lowered; or (v) except as set forth in the Prospectus first filed pursuant to
Rule 424 under the Act after the date hereof, there shall not have been any
material adverse change in the condition or prospects of the Company and its
subsidiaries as a whole, financial or otherwise which, in any case, in your
judgment, renders it inadvisable to proceed with delivery of the Debentures.
All such opinions, certificates, letters and documents shall be deemed
to be in compliance with the provisions hereof only if they are in all
material respects satisfactory to you and your counsel.
In case any of the conditions specified above in this Section 5 shall not
have been fulfilled at the Closing Date, you may waive the compliance by the
Company with any such condition, by mailing or delivering written notice
thereof to the Company.
If any condition of the Underwriters' obligations hereunder to be
satisfied on or prior to the Closing Date is not so satisfied, you may
terminate this Agreement without liability on the part of any Underwriter or
of the Company, except for the expenses to be paid or reimbursed by the
Company pursuant to Section 6(h) hereof and except for any liability under
Section 8 hereof.
6. COVENANTS BY THE COMPANY. In further consideration of the
agreements by the Underwriters herein contained, the Company covenants as
follows:
(a) To file no amendment to the Registration Statement and, prior
to the completion of the offering of the Debentures to make no supplement
to the Prospectus, including the initial supplement to the Prospectus
which is filed pursuant to Rule 424 under the Act referred to in Section
1(a) hereof, of which you have not been advised and furnished with a copy
or to which you have promptly and reasonably objected, and to advise you
as soon as the Company is advised thereof, and to confirm the advice in
writing, (i) of any request of the Commission for amendment or
supplementation of the Registration Statement or Prospectus or for
additional information relating thereto and (ii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or any amendment to the Registration Statement, or
of the initiation or threat of initiation of any proceedings for such
purpose. The Company will use its best efforts to prevent the issuance
of any such stop order or to obtain as soon as possible the lifting
thereof, if issued. The Company will advise you promptly of any order or
communication of any public authority addressed to the Company suspending
or threatening to suspend qualification of the Debentures for sale in any
state. The Company will file promptly all reports and any definitive
proxy or information statements required to be filed by the Company with
the Commission pursuant to 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 and sale of the Debentures.
(b) To deliver without charge to each of you a signed copy of the
Registration Statement as filed and all amendments thereto with exhibits,
and to deliver without charge to each of you and any other Underwriter
such reasonable number of copies as you may request of the Registration
Statement and all amendments thereto excluding exhibits.
(c) Prior to 10:00 a.m., New York City time, on the New York
Business day next succeeding the date of this Agreement and from time to
time, to deliver without charge to you, during such period as in the
opinion of counsel for the Underwriters a prospectus is required by law
to be delivered in connection with sales, so many copies of the
Prospectus in New York City (as supplemented or amended if the Company
shall have prepared any supplement or amendment thereto) as you may
reasonably request.
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(d) To prepare forthwith and deliver without charge to each of
you and to the dealers (whose names and addresses you will furnish to the
Company for such purpose) to whom Debentures may have been sold by or on
behalf of any of the Underwriters, and upon your request to any other
dealers, for such period as in the opinion of counsel for the
Underwriters a prospectus is required by law to be delivered in
connection with sales, such amendments or supplements to the Prospectus
that the statements in the Prospectus as so amended or supplemented will
not be misleading in the light of the circumstances under which they are
made if any event shall occur as a result of which it is necessary so to
amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances under which they are made, not
misleading; and to prepare and furnish to you upon your request, in such
quantities as you may reasonably request, copies of any prospectus or
prospectuses as may be necessary to permit compliance with Section
10(a)(3) of the Act.
(e) To use its best efforts upon your request to qualify the
Debentures for offer and sale under the securities or Blue Sky laws of
such jurisdictions as you may designate, and to pay the costs and fees
incident thereto and to the preparation by counsel for the Underwriters
of memoranda as to the status of the Debentures under the securities or
Blue Sky laws of certain jurisdictions and as to the eligibility of the
Debentures for investment under certain state laws; provided that the
Company shall not be required for this purpose to qualify as a foreign
corporation in any state or to consent to service of process in any
jurisdiction otherwise than in connection with the offer and sale of the
Debentures.
(f) To furnish to you with reasonable promptness during a period
of five years from the date hereof (i) audited annual balance sheets and
audited annual statements of income and retained earnings of the Company
and its subsidiaries consolidated, (ii) quarterly statements of income
for each of the first three fiscal quarters of the Company and its
subsidiaries consolidated (which need not be audited), (iii) a copy of
each report of the Company mailed to stockholders or filed with the
Commission, and (iv) such other information concerning the Company as you
may reasonably request.
(g) To prepare earnings statements, which need not be audited,
that will satisfy the requirements of Section 11(a) of the Act, covering
(i) a twelve-month period beginning not later than fourteen months after
the beginning of the fiscal quarter next commencing after the effective
date of the Registration Statement or if such fiscal quarter is the first
fiscal quarter in a fiscal year, fifteen months after the beginning of
such fiscal quarter and (ii) a twelve-month period beginning not later
than the first day of the Company's fiscal quarter next following the
date of this Agreement and make such earnings statements generally
available to the Company's security holders as soon as practicable.
(h) To pay all costs and expenses incident to the performance of
its obligations under this Agreement, including all expenses incident to
the preparation of certificates representing the Debentures and their
issuance and delivery, the fees and expenses of the Company's counsel and
accountants, the costs and expenses incident to the preparation, printing
and filing of the Registration Statement (including all exhibits
thereto), this Agreement and the cost of furnishing to the Underwriters
copies of the Registration Statement and the Prospectus. The Company
shall also pay any fee charged by a rating agency in connection with its
rating of the Debentures and any fees payable in connection with the
listing of the Debentures on an exchange. The Company shall not, however,
be required to pay for any of your expenses or those of any of the other
Underwriters other than as hereinabove set forth except as provided in
Section 8 hereof.
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(i) To use all reasonable efforts to comply with, or cause to be
complied with, the conditions precedent to the several obligations of the
Underwriters specified in Section 5 hereof.
(j) To refrain from and after the date hereof to the Closing
Date, without your prior consent, from offering or selling, or entering
into any agreement to sell, any debt securities of the Company with a
maturity of more than one year, including additional Debentures of the
Company.
7. INDEMNIFICATION. (a) The Company agrees to indemnify and hold
harmless each of the Underwriters and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act, from and against any
and all losses, claims, damages, liabilities or expenses (including the
reasonable costs of investigation) to which, jointly or severally, such
Underwriter or such controlling person may become subject under the Act, or
otherwise, insofar as any such loss, claim, damage, lability or expense (or
actions with respect thereto) arises out of or is based on any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arises out of or is based on the omission or the alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages, liabilities or expenses arise out of or are based upon any
such untrue statement or omission or alleged untrue statement or omission made
in reliance upon information furnished herein or in writing to the Company by
any of you or by any other Underwriter through you, expressly for use therein.
(b) Each Underwriter agrees to indemnify and hold harmless the
Company, its directors, its officers who signed the Registration Statement and
each person, if any, who controls the Company within the meaning of Section 15
of the Act from and against any and all losses, claims, damages, liabilities
or expenses (including the reasonable costs of investigation) to which,
jointly or severally, the Company or such controlling person may become
subject under the Act, or otherwise, insofar as any such loss, claim, damage,
liability or expense (or actions with respect thereto) arises out of or is
based on any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arises out of or is based on the omission or the
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, which
untrue statement or omission or alleged untrue statement or omission was made
in reliance upon information furnished herein or in writing to the Company by
any of you or by any other Underwriter through you, expressly for use therein.
(c) The Company agrees that upon the commencement of any action
against it, any of its directors or officers who signed the Registration
Statement, or any person controlling it as aforesaid, and each Underwriter
agrees that upon the commencement of any action against it or any person
controlling it as aforesaid, in respect of which indemnity may be sought on
account of any indemnity agreement contained herein, it will promptly give
written notice of the commencement thereof to the party or parties against
whom indemnity shall be sought, but the omission so to notify such
indemnifying party or parties of any such action shall not relieve such
indemnifying party or parties from any liability which it or they may have to
the indemnified party or parties otherwise than on account of such indemnity
agreement. In case such notice of any such action shall be so given, such
indemnifying party or parties shall be entitled to participate at its or their
own expense in the defense or, if it or they so elect, to assume the defense
of such action with counsel chosen by such indemnifying party or parties and
satisfactory to the indemnified party or parties who shall be defendant or
defendants in such action, unless such indemnified party or parties reasonably
object to such assumption on the ground that there may be legal defenses
available to it or them which are different from or in addition to those
available to such indemnifying party or parties. If the indemnifying party or
parties shall not assume the defense of such action, such indemnifying party
or parties will reimburse such indemnified party or parties for the
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reasonable
fees and expenses of any counsel retained by them. If the indemnifying party
or parties shall elect to assume the defense and the indemnified party or
parties shall not have so objected thereto, such indemnified party or parties
shall bear the fees and expenses of any additional counsel retained by them.
In no event shall the indemnifying party or parties be liable for the fees and
expenses of more than one 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.
(d) If the indemnification provided for in this Section 7 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 Debentures to which such
loss, claim, damage or liability (or action in respect thereof) relates. 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
such offering (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by the Underwriters.
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) where determined by pro rata allocation 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 and
payable by an indemnified party as the result of the losses, claims, damages
or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any 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) The agreements of the Company and of the Underwriters
contained in this Section 7 and the representations and warranties of the
Company set forth in this Agreement shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement pursuant to any
provision hereof or otherwise, (ii) any investigation made by or on behalf of
any Underwriter or controlling person or by or on behalf of the Company, its
directors or any officer who signed the Registration Statement, or any
controlling person, and (iii) acceptance and payment hereunder for any
Debentures.
8. TERMINATION. If an Underwriter shall fail (other than for a reason
sufficient to justify the termination of this Agreement) to purchase on the
Closing Date the principal amount of Debentures agreed to be purchased by such
Underwriter, you may find one or more substitute underwriters to purchase such
Debentures, make such other arrangements as you or they may deem advisable or
the remaining Underwriters may agree to purchase such Debentures, in such
proportions as may be approved by you
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(or those of you who shall not have so
failed) in each case upon the terms herein set forth. If no such arrangements
have been made within 24 hours after the Closing Date and
(a) the aggregate principal amount of Debentures to be purchased
by the defaulting Underwriter shall not exceed 10% of the aggregate
principal amount of Debentures, each of the non-defaulting Underwriters
shall be obligated to purchase such Debentures on the terms herein set
forth in proportion to their respective obligations hereunder, or
(b) the aggregate principal amount of Debentures to be purchased
by the defaulting Underwriter shall exceed 10% of the aggregate principal
amount of the Debentures, the Company shall be entitled to an additional
period of 24 hours within which to find one or more substitute
underwriters satisfactory to you (or to those of you who shall not have
so failed) to purchase such Debentures upon the terms set forth herein.
A substitute underwriter hereunder shall become an Underwriter for all
purposes of this Agreement.
In any such case, either you (or those of you who shall not have so
failed) or the Company shall have the right to postpone the Closing Date for a
period of not more than five business days in order that necessary changes and
arrangements may be effected by you and the Company. If neither the non-
defaulting Underwriter nor the Company shall make arrangements pursuant to
this Section 8 within the period stated for the purchase of the Debentures
which such defaulting Underwriter agreed to purchase, this Agreement shall
terminate without liability on the part of the non-defaulting Underwriter to
the Company and without liability on the part of the Company, except, in both
cases, as provided in Section 7 and, in the event you (or to those of you who
shall not have so failed) could have otherwise terminated this Agreement
because of any failure on the part of the Company to comply with the terms or
fulfill any conditions of this Agreement, as provided in Section 6(h) hereof
and hereafter in this Section 8. The provisions of this Section 8 shall not in
any way affect the liability of any defaulting Underwriter to the Company or
the non-defaulting Underwriter arising out of such default.
If the purchase of the Debentures by the Underwriters is not consummated
for any reason other than solely because of the termination of this Agreement
pursuant to Section 8 or the occurrence of any event specified in clause (i),
(ii) or (iii) of Section 5(i), the Company will reimburse the Underwriters for
all out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Debentures.
The Company shall be entitled to act and rely upon any request, consent,
notice or agreement made or given by you.
9. NOTICES. Except as otherwise provided herein, all communications
hereunder shall be in writing, and, if sent to any of the Underwriters, shall
be mailed, delivered or telecopied and confirmed
to you, at c/o Goldman, Sachs & Co., 85 Broad Street, New York, New York
10004, attention of Registration Department, or, if sent to the Company, shall
be mailed, delivered or telegraphed and confirmed to it at 121 S.W. Salmon
Street, Portland, Oregon 97204, attention of Chief Financial Officer or at
such other address as the Company shall furnish to you in writing.
NY02/212938.2
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10. SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the successors of the several Underwriters and shall inure to the
benefit of and be binding upon the successors of the Company. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person or corporation other than the parties hereto and their
respective successors and the officers and directors and controlling persons
referred to in Section 7 hereof any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained; this
Agreement and all conditions and provisions hereof being intended to be and
being for the sole and exclusive benefit of the parties hereto and their
respective successors and said officers and directors and controlling persons
and for the benefit of no other person or corporation. The term "successors"
shall not include any purchaser of Debentures merely because of such purchase.
11. NEW YORK LAW TO GOVERN. This Agreement shall be construed in
accordance with the laws of the State of New York.
12. EFFECTIVENESS. If the foregoing is in accordance with your
understanding of our agreement, kindly sign and return to us the enclosed
duplicates hereof, whereupon it will become a binding agreement between the
Company and the several Underwriters in accordance with its terms.
13. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute one in the same instrument
Very truly yours,
PORTLAND GENERAL ELECTRIC COMPANY
By ___/s/ Joseph M. Hirko____________
Name: Joseph M. Hirko
Title: Vice President and
Chief Financial Officer
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
GOLDMAN, SACHS & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
SMITH BARNEY INC.
By: ____/s/ GOLDMAN, SACHS & CO.___________
GOLDMAN, SACHS & CO.
On behalf of the Underwriters
NY02/212938.2
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SCHEDULE A
UNDERWRITER PRINCIPAL AMOUNT
Goldman, Sachs & Co. $17,167,500
Merrill Lynch, Pierce, Fenner & Smith Incorporated 17,166,250
Smith Barney Inc. 17,166,250
Robert W. Baird & Co. Incorporated 500,000
J.C. Bradford & Co. 500,000
Alex. Brown & Sons Incorporated 1,125,000
Crowell, Weedon & Co. 500,000
Dain Bosworth Incorporated 500,000
Dillon, Read & Co. Inc. 1,125,000
Doft & Co., Inc. 500,000
A.G. Edwards & Sons, Inc. 1,125,000
Everen Securities, Inc. 1,125,000
Fahnestock & Co. Inc. 500,000
Interstate/Johnson Lane Corporation 500,000
Janney Montgomery Scott Inc. 500,000
Kennedy, Cabot & Co. 500,000
Legg Mason Wood Walker, Incorporated 500,000
McDonald & Company Securities, Inc. 500,000
McGinn, Smith & Co., Inc. 500,000
Morgan Keegan & Company, Inc. 500,000
The Ohio Company 500,000
Olde Discount Corporation 500,000
Oppenheimer & Co., Inc. 1,125,000
Pacific Crest Securities 500,000
PaineWebber Incorporated 1,125,000
Piper Jaffray Inc. 500,000
Prudential Securities Incorporated 1,125,000
Ragen MacKenzie Incorporated 500,000
Rauscher Pierce Refsnes, Inc. 500,000
Redwood Securities Group, Inc. 500,000
The Robinson-Humphrey Company, Inc. 500,000
Roney & Co. 500,000
SBC Capital Markets Inc. 1,125,000
Sutro & Co. Incorporated 500,000
Trilon International Inc. 500,000
Tucker Anthony Incorporated 500,000
U.S. Clearing Corp. 500,000
Van Kasper & Company 500,000
Wedbush Morgan Securities 500,000
Wheat, First Securities, Inc. 500,000
Total ................................................. $75,000,000
NY02/212938.2
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