EXHIBIT 1(a)
UNDERWRITING AGREEMENT
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NORTHWEST NATURAL GAS COMPANY
First Mortgage Bonds, ____ Series due ____
Price to the Company: _______ of the Principal Amount
Interest Commencement Date: ______, 199_
_______, 199_
To the Underwriters named in Schedule I hereto
Dear Sirs:
Northwest Natural Gas Company, an Oregon corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to you the aggregate principal amount of its First Mortgage
Bonds set forth opposite your respective names in Schedule I hereto (the
"Securities"), at the price to the Company set forth above. The Securities
will be issued under the Company's Mortgage and Deed of Trust, dated as of
July 1, 1946, as heretofore supplemented and as to be supplemented by the
Supplemental Indenture identified in Schedule I hereto (the "Supplemental
Indenture"), such Mortgage and Deed of Trust as supplemented and to be so
supplemented being hereinafter referred to as the "Indenture".
1. Representations and Warranties of the Company. The Company
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represents and warrants to, and agrees with, each of you that:
(a) A registration statement with respect to the Securities
has been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the
"Act"), and the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the rules and regulations (the "Rules
and Regulations") of the Securities and Exchange Commission (the
"Commission") under the Act, has been filed with the Commission
and has become effective. Copies of the registration statement,
together with all amendments, if any, and of the prospectus
contained therein, in the form in which it became effective,
including the documents incorporated in such prospectus by
reference, have heretofore been delivered to you. The
registration statement in the form in which it became effective,
including all exhibits thereto, is referred to hereinafter as the
"Registration Statement". The prospectus, including the
documents incorporated therein by reference, contained in the
Registration Statement is referred to hereinafter as the
"Prospectus"; provided, that, when, on or after the date hereof,
the Prospectus shall be supplemented with respect to the
Securities (the "Prospectus Supplement") or shall be completed
pursuant to Rule 430A (the "Completed Prospectus"), in a filing
with the Commission pursuant to Rule 424(b) under the Act,
"Prospectus", for all purposes of this Agreement, except this
Section 1, shall mean the Prospectus as so supplemented or
completed;
(b) No stop order with respect to the Registration
Statement has been issued by the Commission under the Act and no
proceeding therefor of which the Company has received notice has
been instituted; the Registration Statement, at the time it
became effective, conformed in all material respects to the
requirements of the Act, the Trust Indenture Act and the Rules
and Regulations; on the date hereof, neither the Registration
Statement (excluding the Statements of Eligibility of the
Trustee(s) under the Indenture) nor the Prospectus contains an
untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; and each document incorporated by
reference in the Prospectus and filed pursuant to the Securities
Exchange Act of 1934 (the "Exchange Act") conformed when so filed
in all material respects to the requirements of the Exchange Act
and the applicable rules and regulations thereunder;
(c) Since the respective dates as of which information is
given in the Prospectus, there has not been any material adverse
change in the business, property or financial condition of the
Company, and there has not been any material transaction entered
into by the Company other than transactions in the ordinary
course of business and transactions referred to in, or
contemplated by, the Prospectus; and the Company does not have
any material contingent obligation which is not disclosed in the
Prospectus;
(d) The consummation by the Company of the transactions
herein contemplated and the fulfillment of the terms hereof will
not result in a breach of any of the terms or provisions of, or
constitute a default under, any statute, indenture, mortgage,
deed of trust or other agreement or instrument to which the
Company is a party or by which it is bound or to which any of the
property of the Company is subject, or any order, rule or
regulation applicable to the Company of any court or governmental
agency or body having jurisdiction over the Company or any of its
properties; no approval, authorization, consent or order of any
public board or body is legally required for the issuance and
sale of the Securities by the Company hereunder, except such as
may be issued by the Public Utility Commission of Oregon and the
Washington Utilities and Transportation Commission or be required
under the Act or state securities laws;
(e) The financial statements, together with related notes,
incorporated by reference in the Prospectus present fairly the
financial position and the results of operations of the Company
on the bases set forth in such statements and related notes at
the dates or for the periods to which they apply; and such
statements and related notes have been prepared in accordance
with generally accepted principles of accounting, consistently
applied throughout the periods involved, except as otherwise
stated therein;
(f) The Company is a validly organized and existing
corporation in good standing under the laws of the State of
Oregon, and is qualified to do business and is in good standing
as a foreign corporation in the State of Washington, with power
(corporate and other) to own its properties and conduct its
business as described in the Prospectus and each of the Company's
subsidiaries has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the
jurisdiction of its incorporation with full power and authority
to own or lease its properties and conduct its business, and is
duly qualified to do business and is in good standing in each
jurisdiction in which the character of the business conducted by
it or the location of the properties owned or leased by it makes
such qualification necessary;
(g) The Indenture and the Securities have been duly and
validly authorized; and, when the Securities shall have been
delivered against payment therefor as provided herein, the
Indenture and the Securities will be legal, valid and binding
obligations of the Company, enforceable in accordance with their
terms, except as limited by bankruptcy, insolvency and other laws
affecting the enforcement of mortgagees' and other creditors'
rights, the Indenture will be qualified under the Trust Indenture
Act, and the Indenture and the Securities will conform to the
descriptions thereof contained in the Prospectus; and
(h) Other than as set forth in the Prospectus, there are no
legal, governmental or administrative proceedings pending to
which the Company is a party or of which any property of the
Company is the subject, the outcome of which, in the opinion of
the Company, would singly or in the aggregate have a material
adverse effect on the business, property or financial position of
the Company; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others.
2. Purchase and Sale. Subject to the terms and conditions
herein -----------------
set forth, the Company agrees to sell to each of you, and each of you
agrees, severally and not jointly, to purchase from the Company, at the
Price to the Company set forth on the first page hereof plus accrued
interest, if any, thereon from the Interest Commencement Date set forth on
the first page hereof to the Time of Delivery (as hereinafter defined), the
Securities in the amounts set forth opposite your respective names in
Schedule I hereto.
3. Offering. Subject to the terms and conditions herein set
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forth, you will make an offering of the Securities upon the terms and
conditions set forth in the Prospectus.
4. Payment and Delivery. Delivery of the Securities and
payment ----------------------
therefor, in Federal or other immediately available funds [New York
Clearing House funds] payable to the order of the Company, shall be made at
the offices of Messrs. Reid & Priest, 40 West 57th Street, New York, New
York at 10:00 A.M., New York City time, on the fifth business day after the
date hereof, or at such other place, time and date as shall be agreed upon
in writing by the Company and you. The hour and date of the delivery and
payment are herein called the "Time of Delivery".
The Securities shall be delivered to you for your respective
accounts in fully registered form and in such authorized denominations and
registered in such names as you may reasonably request in writing not later
than 2:00 P.M., New York City time, on the second business day after the
date hereof, or to the extent not so requested, registered in your
respective names in such authorized denominations as the Company shall
determine. The Company agrees to make the Securities available to you for
checking purposes not later than 2:00 P.M., New York City time, on the last
full business day preceding the Time of Delivery, at the office of Bankers
Trust Company, or at such other place, time or date as may be agreed upon
between the Company and you.
If any one or more of you shall default on your obligation or
obligations to purchase and pay for the Securities which you have agreed
herein to purchase and pay for (such of you which shall have so defaulted
being referred to herein as the "Defaulting Underwriter"), the Company
shall immediately give written notice thereof to each of you which shall
not have so defaulted (the "Non-defaulting Underwriters") or, if one or
more of you shall have executed this Agreement as the representative or
representatives of the Underwriters named in Schedule I hereto, to such
representative or representatives, and the Non-Defaulting Underwriters
shall have the right, within 24 hours after the receipt of such notice by
the Non-defaulting Underwriters or their representative or representatives,
to determine to purchase or to procure one or more others, members of the
National Association of Securities Dealers, Inc. ("NASD") and satisfactory
to the Company, to purchase, upon the terms herein set forth, the amount of
the Securities which the Defaulting Underwriter so agreed to purchase. If
the Non-defaulting Underwriters shall determine to exercise such right,
they shall give notice to the Company of such determination within 24 hours
after their receipt of notice from the Company of such default, and,
thereupon, the Time of Delivery shall be postponed for such period, not
exceeding three business days, as the Company shall determine, in order
that the required changes in the Registration Statement, the Prospectus and
any other documents or arrangements may be effected. If, in the event of
such a default, the Non-defaulting Underwriters shall fail to give such
notice or, within such 24-hour period, shall give notice to the Company
that the Non-defaulting Underwriters will not exercise such right, this
Agreement may be terminated by the Company, upon notice given to the Non-
defaulting Underwriters (or their representative or representatives),
within a further period of 24 hours. If the Company shall not elect to so
terminate this Agreement, it shall have the right:
(a) to require the Non-defaulting Underwriters to purchase
and pay for the respective amounts of the Securities which they
have severally agreed to purchase hereunder and, in addition, to
purchase and pay for (in proportion to their respective
commitments hereunder except as may be otherwise determined by
the Non-defaulting Underwriters) the amount of the Securities
which the Defaulting Underwriter shall have failed to purchase up
to 10% of the respective amounts of the Securities which the Non-
defaulting Underwriters have otherwise agreed to purchase, and/or
(b) to procure one or more others, members of the NASD, to
purchase, upon the terms herein set forth, the amount of the
Securities which the Defaulting Underwriter agreed to purchase or
that portion thereof which the Non-defaulting Underwriters shall
not be obligated to purchase pursuant to the foregoing clause
(a).
In the event the Company shall exercise its rights under (a) and/or (b)
above, the Company shall give notice thereof to the Non-defaulting
Underwriters (or their representative or representatives) within such
further period of 24 hours, and, thereupon, the Time of Delivery shall be
postponed for such period, not exceeding three business days, as the
Company shall determine, in order that the required changes in the
Registration Statement, the Prospectus and any other documents or
arrangements may be effected.
Any action taken by the Company under this Section 4 shall not
relieve any Defaulting Underwriter from liability in respect of its
obligations under this Agreement. Termination by the Company under this
Section 4 shall be without liability on the part of the Company or any Non-
defaulting Underwriter; provided, however, that such termination shall not
affect the payment obligations set forth in Section 5 hereof.
5. Covenants of the Company. The Company agrees with each of
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you that it will:
(a) Promptly deliver to you a copy of the Registration
Statement and of all amendments thereto (in each case including
copies of all documents (other than exhibits) incorporated
therein by reference and all exhibits filed therewith), either
signed or certified by an officer of the Company, and including a
copy of each consent and opinion included therein or filed as an
exhibit thereto, either signed or certified by an officer of the
Company, and as many unsigned copies of the Registration
Statement and such amendments, as you may reasonably request.
The Company also will deliver to you as soon as practicable after
the date of this Agreement and thereafter from time to time,
during such period of time as a prospectus relating to the
Securities is required to be delivered under the Act, as many
copies of the Prospectus, including any amendments or supplements
thereto, as you may reasonably request for the purposes of the
Act.
(b) Promptly advise you (i) when any amendment of the
Registration Statement shall have become effective, (ii) of any
request by the Commission for any amendment of the Registration
Statement or the Prospectus, and (iii) of the issuance of any
stop order under the Act with respect to the Registration
Statement or the institution of any proceedings therefor of which
the Company shall have received notice. The Company will use its
best efforts to prevent the issuance of any such stop order and
to secure the prompt removal thereof, if issued. The Company
will not file any amendment to the Registration Statement or
supplement to the Prospectus unless the Company has furnished to
you a copy for your review prior to filing.
(c) Pay all expenses and taxes (excluding any transfer
taxes) in connection with (i) the preparation and filing by it of
the Registration Statement and the Prospectus, (ii) the
preparation and delivery of this Agreement and the Supplemental
Indenture, (iii) all corporate and regulatory actions precedent
to the issuance and delivery of the Securities, (iv) the issuance
and delivery of the Securities, (v) except as provided in Section
5(d) hereof, the printing and delivery to you of reasonable
quantities of the Registration Statement, the Prospectus and any
amendment or supplement, (vi) the fees and expenses of the
Trustees and any transfer agent and registrar, and (vii) the
qualification of the Securities for offering and sale under state
securities laws, including the fees, not to exceed $5,000, and
disbursements of your counsel in connection with such
qualification and in connection with blue sky and legal
investment surveys.
(d) During such period of time (not exceeding nine months)
after the effective date of this Agreement as you may be required
by law to deliver a prospectus, if either the Company shall
become aware or you shall advise the Company in writing of the
occurrence of any event which should be set forth in a supplement
to or an amendment of the Prospectus in order to make the
Prospectus not misleading in the light of then existing
circumstances, the Company will forthwith, at its expense,
prepare and furnish to you a reasonable number of copies of a
supplement or an amendment to the Prospectus which will
supplement or amend the Prospectus so that as so supplemented or
amended it will not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to
make the statements therein, in the light of then existing
circumstances, not misleading. In case any of you shall be
required to deliver a prospectus after the expiration of nine
months from the date of this Agreement, the Company, upon your
request, will furnish to you, at your expense, a reasonable
quantity of a supplemented or amended prospectus, or supplements
or amendments to the Prospectus complying with Section 10(a) of
the Act.
(e) Make generally available to its security holders, as
soon as practicable, an earning statement (which need not be
audited) covering a period of 12 months beginning on the first
day of the Company's fiscal quarter next succeeding the effective
date of the Registration Statement.
(f) Furnish such proper information as may be lawfully
required and otherwise cooperate in qualifying the Securities for
offer and sale under the securities or blue sky laws of such
jurisdictions as you may designate, and file and make in each
year such statements or reports as are or may be reasonably
required by the laws of such jurisdictions; provided, however,
that the Company shall not be required to qualify as a foreign
corporation or dealer in securities, or to file any consents to
service of process under the laws of any jurisdiction, or to meet
other requirements deemed by the Company to be unduly burdensome.
(g) During the period beginning on the date of this
Agreement and continuing to and including the 45th day following
the Time of Delivery, not to offer, sell, continue to sell or
otherwise dispose of any other of its securities of the same
class as the Securities without your prior consent.
All fees and disbursements of your counsel (exclusive of fees and
expenses of such counsel which are to be paid by the Company as set forth
in subsection (vi) of Section 5(c) hereof) shall be paid by you; provided,
however, that if this Agreement shall be terminated in accordance with the
provisions of Section 6, 7 or 9 hereof, the Company shall reimburse you for
the amount of such fees and disbursements. The Company shall not be
required to pay any amount for any of your expenses except as provided in
the preceding sentence. The Company shall not in any event be liable to
any of you for damages on account of the loss of anticipated profits.
6. Conditions of Your Obligations to Purchase the Securities.
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Your several obligations to purchase and pay for the Securities shall be
subject to the accuracy in all material respects of the representations and
warranties of the Company set forth in Section 1 hereof as of the date
hereof, to the accuracy of the statements of officers of the Company made
in any certificate given pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder to be performed at
or prior to the Time of Delivery, and to the following additional
conditions:
(a) (i) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at the Time of
Delivery; no order of the Commission directed to the adequacy or
accuracy of any document incorporated by reference therein shall
be in effect at such date; and no proceedings for any such
purpose shall be pending before, or threatened by, the Commission
on such date, and you shall have received a certificate dated the
Time of Delivery and signed by an executive officer of the
Company to the effect that no such order is in effect and that no
proceedings for any such purpose are pending before, or to the
knowledge of the Company threatened by, the Commission; (ii)
there shall not have been any change in the capital stock of the
Company nor any material increase in the short-term or long-term
debt of the Company (other than in the ordinary course of
business) from that set forth or contemplated in the Registration
Statement or the Prospectus (or any amendment or supplement
thereto); (iii) there shall not have been, since the respective
dates as of which information is given in the Registration
Statement and the Prospectus (or any amendment or supplement
thereto), except as may otherwise be stated in the Registration
Statement and Prospectus (or any amendment or supplement
thereto), any material adverse change in the business, property,
financial condition or results of operations of the Company and
its subsidiaries taken as a whole; and (iv) the Company and its
subsidiaries shall not have any liabilities or obligations,
direct or contingent (whether or not in the ordinary course of
business), that are material to the Company and its subsidiaries
taken as a whole, other than those reflected in the Registration
Statement or the Prospectus (or any amendment or supplement
thereto).
(b) At the Time of Delivery, there shall be in full force
and effect orders of the Public Utility Commission of Oregon and
the Washington Utilities and Transportation Commission
authorizing the issuance and sale of the Securities on the terms
and conditions herein set forth, and containing no provision
unacceptable to you by reason of the fact that it is materially
adverse to the Company (it being understood that no order in
effect on the date hereof contains any such unacceptable
provision).
(c) At the Time of Delivery, you shall have received from
Bruce B. Samson, Esq., General Counsel of the Company, Reid &
Priest, of counsel to the Company, and Simpson Thacher & Bartlett
(a partnership which includes professional corporations), your
counsel, opinions, dated the Time of Delivery, in substantially
the form and substance prescribed in Exhibits A, B, and C hereto.
(d) At the Time of Delivery, Deloitte & Touche shall have
furnished to you a letter, dated the Time of Delivery, to the
effect that:
(i) They are independent public accountants with
respect to the Company within the meaning of the Act and the
applicable published Rules and Regulations;
(ii) In their opinion, the financial statements
examined by them and incorporated by reference in the
Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the
Exchange Act and the published rules and regulations
thereunder;
(iii) On the basis of limited procedures, not
constituting an examination made in accordance with
generally accepted auditing standards, including a reading
of the latest available interim financial statements of the
Company, if any, a reading of the minute books of the
Company since December 31, 1993, inquiries of officials of
the Company responsible for financial and accounting matters
and such other inquiries and procedures as may be specified
in such letter, nothing came to their attention that caused
them to believe that:
(A)(1) any material modifications should be made to
the unaudited condensed consolidated financial statements
incorporated by reference in the Registration Statement for
them to be in conformity with generally accepted accounting
principles, or (2) the unaudited condensed consolidated
financial statements incorporated by reference in the
Registration Statement do not comply with the applicable
accounting requirements of the Exchange Act as they apply to
Form 10-Q and the related published rules and regulations;
(B) at the date of the latest available interim
balance sheet of the Company and at a subsequent specified
date not more than five days prior to the Time of Delivery,
there has been any change in the capital stock (except for
(I) shares of the Company's Common Stock issued under the
Company's Dividend Reinvestment Plan, 1985 Stock Option Plan
or Employee Stock Purchase Plan, (II) shares of Common Stock
issued upon the conversion of shares of the Company's
Convertible Preference Stock or Convertible Debentures, and
(III) shares of Preferred Stock purchased or redeemed
pursuant to or in anticipation of sinking and purchase funds
with respect to the Company's Preferred Stock), or any
increase in the long-term debt of the Company, or any
decrease in net assets, in each case as compared with
amounts shown in the balance sheet as of the date of the
latest financial statements incorporated by reference in the
Registration Statement, except in each case for changes,
increases or decreases which the Registration Statement
discloses have occurred or may occur, which were occasioned
by the declaration of dividends or which are described in
such letter; or
(C) for the 12-month period for which the latest
unaudited financial statements are available, there were any
decreases, as compared with the latest 12-month period for
which financial statements are incorporated by reference in
the Prospectus, in operating revenues, net income and
earnings available for common stock, except in each case for
decreases which the Registration Statement discloses have
occurred or may occur, which were occasioned by the
declaration of dividends or which are described in such
letter; and
(iv) They have performed certain other specified
procedures with respect to certain amounts and percentages
set forth in the Registration Statement or in the documents
incorporated by reference therein, as have been requested by
your counsel and approved by the Company, and have found
them to be in agreement with the records of the Company and
the computations to be arithmetically correct.
(e) At the Time of Delivery, you shall have received a
certificate, dated the Time of Delivery and signed by an
executive officer of the Company, to the effect that (i) the
Company's representations and warranties set forth in Section 1
hereof are true and correct at and as of the Time of Delivery
with the same effect as if made at and as of the Time of
Delivery; provided, that, (A) if any post-effective amendment to
the Registration Statement shall have been filed subsequent to
the date hereof, the Registration Statement referred to in
Section 1(b) hereof shall be deemed, for the purposes of such
certificate, to include such amendment, (B) if the Prospectus
Supplement shall have been filed pursuant to Rule 424 under the
Act, the Prospectus referred to in Sections 1(b), (c), (e), (f)
and (g) hereof shall be deemed, for the purposes of such
certificate, to be the Prospectus as so supplemented or
completed, and (C) the Company's representations and warranties
with respect to the accuracy and sufficiency of the Prospectus
shall not apply to any statements or omissions in the Prospectus
Supplement or the Completed Prospectus made in reliance upon and
in conformity with the information furnished in writing to the
Company, by or on behalf of you, specifically for use therein,
and (ii) the Company has performed all of its obligations
hereunder to be performed at or prior to the Time of Delivery,
(iii) if the Company shall have been required to file the
Prospectus Supplement or the Completed Prospectus, as the case
may be, with the Commission pursuant to Rule 424(b) under the
Act, the Company has done so, and (iv) the orders described in
Section 6(b) hereof are in full force and effect.
(f) All legal proceedings to be taken in connection with
the issuance and sale of the Securities shall be satisfactory in
form and substance to your counsel.
(g) There shall not have been any announcement by any
"nationally recognized statistical rating organization", as defined
for purposes of Rule 436(g) under the Act, that (i) it is downgrading
its rating assigned to the First Mortgage Bonds or Preferred or
Preference Stock of the Company, or (ii) it is reviewing its
rating assigned to, or placing on credit watch, the First Mortgage
Bonds or Preferred or Preference Stock with a view to possible
downgrading, or with negative implications, or direction not
determined.
(h) Subsequent to the date of this Agreement, there shall not
have occurred (i) any material change in or affecting the business,
properties, financial condition or results of operations of the
Company and its subsidiaries taken as a whole not contemplated by the
Prospectus or any amendment or supplement thereto (including the
documents incorporated by reference therein at the date thereof),
which in your opinion, would materially and adversely affect the
market for the Securities, or (ii) any event or development relating
to or involving the Company or any officer or director of the Company
which makes any statement made in the Prospectus (including the
documents incorporated therein by reference at the date thereof)
untrue or which, in the opinion of the Company and its counsel or you
and your counsel, requires the making of any addition to or change in
the Prospectus or any amendment or supplement thereto in order to
state a material fact required by the Act to be stated therein or
necessary in order to make the statements therein not misleading, if
amending or supplementing the Prospectus to reflect such event or
development would, in your opinion, adversely affect the market for
the Securities.
In case any of the conditions specified above in this Section 6
shall not have been fulfilled at the Time of Delivery, this Agreement may
be terminated by one or more of you which have agreed to purchase, in the
aggregate, 50% or more of the Securities, upon notice thereof to the
Company. Any such termination shall be without liability of any party to
any other party, except as otherwise provided in Section 5 hereof.
7. Conditions of Company's Obligation. The obligation of the
----------------------------------
Company to deliver the Securities at the Time of Delivery shall be subject
to the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at the Time of
Delivery; no order of the Commission directed to the adequacy or
accuracy of any document incorporated by reference therein shall
be in effect at such date; and no proceedings for any such
purpose shall be pending before, or threatened by, the Commission
on such date.
(b) At the Time of Delivery, there shall be in full force
and effect orders of the Public Utility Commission of Oregon and
the Washington Utilities and Transportation Commission
authorizing the issuance and sale of the Securities on the terms
and conditions herein set forth, and containing no provisions
unacceptable to the Company by reason of the fact that it is
materially adverse to the Company (it being understood that no
order in effect on the date hereof contains any such unacceptable
provision).
In case any of the conditions specified above in this Section 7
shall not have been fulfilled at the Time of Delivery, this Agreement may
be terminated by the Company, upon notice thereof to you. Any such
termination shall be without liability of any party to any other party,
except as otherwise provided in Section 5 hereof.
8. Indemnifications. (a) The Company agrees to indemnify and
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hold harmless each of you and each person who controls any of you within
the meaning of Section 15 of the Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or any other statute or
common law, and to reimburse each of you and each such controlling person
for any legal or other expenses (including, to the extent hereinafter
provided, reasonable counsel fees) incurred by you or them in connection
with investigating any such losses, claims, damages or liabilities or in
connection with defending any actions, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or Prospectus as amended or
supplemented (if any amendments or supplements thereto shall have been
furnished) or 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; provided, however, that the indemnity agreement
contained in this subsection (a) shall not apply to any such losses, claims,
damages, liabilities, expenses or actions arising out of, or based upon,
any such untrue statement or alleged untrue statement, or any such omission
or alleged omission, if such statement or omission was made in reliance
upon written information furnished to the Company by or on behalf of any of
you specifically for use in connection with the preparation of the
Registration Statement, the Prospectus or any amendment or supplement to
either thereof or arising out of or based upon statements in or omissions
from that part of the Registration Statement which shall constitute the
Statements of Eligibility under the Trust Indenture Act of 1939 of the
Trustees under the Indenture; and provided, further, that the indemnity
agreement contained in this paragraph shall not inure to the benefit of any
of you (or of any of your controlling persons) on account of any losses,
claims, damages, liabilities, expenses or actions arising from the sale of
any of the Securities to any person if a copy of the Prospectus, as
amended or supplemented (if any amendments or supplements thereto shall
have been furnished), excluding any document incorporated by reference
therein, shall not have been sent or given to such person with or prior to
the written confirmation of the sale involved, unless such failure is the
result of non-compliance by the Company with Section 5(a) hereof. The
indemnity agreement of the Company contained in this Section 8(a) and the
representations and warranties of the Company contained in Section 1 hereof
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any of you or any such controlling
person, and shall survive the delivery of the Securities. The indemnity
agreement of the Company contained in this Section 8(a) shall be in
addition to any liability which the Company may otherwise have to an
indemnified party hereunder.
(b) Each of you, severally, agrees to indemnify and hold
harmless the Company, its directors, each of its officers who shall have
signed the Registration Statement and each person who controls the Company
within the meaning of Section 15 of the Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of
them may become subject under the Act, the Exchange Act or any other
statute or common law, and to reimburse each of them for any legal or other
expenses (including, to the extent hereinafter provided, reasonable counsel
fees) incurred by them in connection with investigating any such losses,
claims, damages or liabilities or in connection with defending any action,
insofar as such losses, claims, damages, liabilities, expenses or actions
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or
Prospectus as amended or supplemented (if any amendments or supplements
thereto shall have been furnished) or 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, if such statement or omission
was made in reliance upon written information furnished to the Company by
or on behalf of any of you specifically for use in connection with the
preparation of the Registration Statement, the Prospectus or any amendment
or supplement to either thereof. Your respective indemnity agreements
contained in this Section 8(b) and the representations and warranties of
each of you which shall have signed this Agreement contained in Section 12
hereof shall remain operative and in full force and effect, regardless of
any investigation made by or on behalf of the Company or any such director,
officer or controlling person, and shall survive the delivery of the
Securities. The indemnity agreement of each of you contained in this
Section 8(b) shall be in addition to any liability which you may otherwise
have to an indemnified party hereunder.
(c) Each of the Company and you, severally, agrees that, upon
the receipt of notice of the commencement of any action against it, any of
its directors or officers, 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 a notice of the
commencement thereof to the party or parties against whom indemnity shall
be sought hereunder, 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 otherwise than on account of such indemnity agreement. In case such
notice of any such action shall be so given, such indemnifying party shall
be entitled to participate at its own expense in the defense or, if it so
elects, to assume (in conjunction with any other indemnifying parties) the
defense of such action, in which event such defense shall be conducted by
counsel chosen by such indemnifying party or parties. If the indemnifying
party shall elect to assume the defense of such action, any indemnified
party or parties who shall be defendant or defendants in such action shall
have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such
counsel retained by it or them shall be at the expense of such indemnified
party or parties unless (i) the employment of such counsel has been
specifically authorized in writing by the indemnifying party or parties or
(ii) counsel chosen by the indemnifying party or parties as aforesaid shall
not be satisfactory to the indemnified party or parties or shall for any
reason be unable to act for or continue to act for such indemnified party
or parties; provided, however, that in any case or cases to which the
foregoing clause (ii) shall apply, the indemnifying party or parties shall
not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys for all such
indemnified parties, which firm shall be chosen by the indemnified party or
parties and satisfactory to the indemnifying party or parties. If the
indemnifying party shall elect not to assume the defense of such action,
such indemnifying party will reimburse such indemnified party or parties
for the reasonable fees and expenses of any counsel retained by them.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in Sections 8(a) or
(b) hereof shall be due in accordance with its terms but for any reason
shall be unavailable or insufficient to hold any indemnified party
thereunder harmless in respect of any losses, claims, damages or
liabilities referred to therein, the Company and each of you severally
shall contribute to the aggregate losses, claims, damages and liabilities
to which the Company and one or more of you may be subject, as a result of
such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand
and each of you on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities as well as
any other equitable considerations including, with respect only to any
losses, claims, damages of liabilities referred to in Section 8(a) hereof,
relative benefit. 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 you, on
the other, and the parties' relative intent, knowledge and access to
information and opportunity to correct or prevent such statement or
omission. The relative benefits received by the Company on the one hand
and you on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Securities (before deducting
expenses) received by the Company bear to the total underwriting discounts
and commissions received by you with respect to the offering of the
Securities. Notwithstanding the foregoing, 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 Company and you agree that it would not
be just and equitable if contribution pursuant to this Section 8(d) were
determined (i) by any method of allocation which does not take account of
the equitable considerations referred to above in this Section 8(d), or
(ii) with respect only to any losses, claims, damages or liabilities
referred to in Section 8(a) hereof, by pro rata allocation (even if you
were treated as one entity for such purpose). The amount paid or payable
by a party entitled to contribution as a result of the losses, claims,
damages or liabilities referred to above in this Section 8(d) shall be
deemed to include any legal or other expenses reasonably incurred by such
party in connection with investigating or defending any such action or
claim. For purposes of this Section 8(d), each person, if any, who
controls any of you within the meaning of Section 15 of the Act shall have
the same rights to contribution as you, and each director, officer of the
Company who shall have signed the Registration Statement and person who
controls the Company within the meaning of Section 15 of the Act shall have
the same rights to contribution as the Company, subject, in each case, to
the fourth sentence of this Section 8(d).
9.(a) Termination. This Agreement may be terminated at any time
-----------
prior to the Time of Delivery, in your absolute discretion, upon notice
thereof to the Company, if prior to the Time of Delivery (i) trading in
securities on the New York Stock Exchange, American Stock Exchange or
National Association of Securities Dealers Automated Quotation System shall
have been suspended, (ii) a general moratorium on commercial banking
activities in New York or Oregon shall have been declared by either Federal
or state authorities, or (iii) there shall have occurred any outbreak or
escalation of hostilities or other domestic or international calamity,
crisis or change in political, financial or economic conditions, the effect
of which on the financial markets of the United States is such as to make
it impracticable or inadvisable to commence or continue the offering of the
Securities at the offering price to the public set forth on the cover page
of the Prospectus (or any amendment or supplement thereto) or to enforce
contracts for the sale of the Securities by you. This Agreement may also
be terminated at any time prior to the Time of Delivery upon notice thereof
to the Company if, in the judgment of one or more of you which have agreed
to purchase 50% or more of the Securities, the subject matter of any
amendment or supplement to the Registration Statement or the Prospectus
renders it either inadvisable to proceed with the public offering of the
Securities or inadvisable to proceed with the delivery of the Securities to
be purchased hereunder. Any termination of this Agreement pursuant to this
Section 9 shall be without liability of any party to any other party,
except as otherwise provided in Section 5 hereof.
(b) Notwithstanding any termination of this Agreement pursuant
to this Section 9, the provisions of Section 8 hereof shall remain in
effect.
10. Notices. All statements, requests, notices and agreements
-------
hereunder shall be in writing or by telephone if confirmed in writing
within 24 hours, and if to you, shall be sufficient in all respects if
delivered or sent by registered mail either to you at your address given on
the last page hereof or, if this Agreement shall have been executed on your
behalf by a representative as provided in Section 13 hereof, to your
representative at its address given on the last page hereof; and if to the
Company shall be sufficient in all respects if delivered or sent by
registered mail to Northwest Natural Gas Company, One Pacific Square, 220
N.W. Second Avenue, Portland, Oregon 97209, Attention: Treasurer and
Controller; provided, however, that any notice to any of you pursuant to
Section 8(c) hereof shall be delivered or sent by registered mail to such
party at its principal executive offices.
11. Information for Use in Prospectuses. The information
-----------------------------------
specified in Schedule I hereto shall be deemed to have been furnished in
writing to the Company by you specifically for use therein.
12. Representations and Warranties of Representatives of the
--------------------------------------------------------
Underwriters. Each of the undersigned, if any, which has signed this
------------
Agreement as representative of the Several Underwriters represents and
warrants to the Company that it has full power and authority (a) to enter
into this Agreement on behalf of each of the Underwriters listed in
Schedule I hereto, and (b) to act on behalf of each of them with respect to
the performance of this Agreement. In all dealings hereunder, the Company
shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of all of you made or given either by all of the
undersigned representatives jointly or by any of the undersigned
representatives individually.
13. Miscellaneous. (a) This Agreement shall be binding upon,
and -------------
inure solely to the benefit of, you, the Company and, to the extent
provided in Section 8 hereof, the directors and officers of the Company and
each person who controls the Company or any of you, 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 of you shall be
deemed a successor or assign by reason merely of such purchase.
(b) This Agreement shall be construed in accordance with the
laws of the State of New York.
(c) 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.
(d) This Agreement has been prepared upon the assumption that
there will be more than one Underwriter purchasing the Securities.
Consequently, if there should be only one Underwriter named in Schedule I
hereto, this Agreement shall be read in that light.
If the foregoing is in accordance with your understanding, please
sign and return to us the counterparts hereof enclosed, and upon the
acceptance hereof by you, this letter and such acceptance hereof shall
constitute a binding agreement between you and the Company.
Very truly yours,
NORTHWEST NATURAL GAS COMPANY
By:------------------------------
Title:---------------------------
ACCEPTED at New York, New York,
as of the date first above written.
[UNDERWRITERS]
[ADDRESS]
By: [Name of Representative]
By:______________________________
Authorized Signatory
SCHEDULE I
Amounts of
Securities
Underwriters to be Purchased*
------------ ----------------
Total
===============
Supplemental Indenture pursuant to which the Securities will be issued:
______________________________________________________________________
______ Supplemental Indenture, dated as of __________.
Information deemed furnished pursuant to Section 11 of the Agreement;
--------------------------------------------------------------------
Information with respect to the price to the public of the Securities
set forth on, and the information set forth in the last paragraph of the
cover page of and in the _________ paragraph under the caption
"Underwriting" in, _______________________.
______________
* Principal amount of debt or number of shares of stock.
EXHIBIT A
[LETTERHEAD OF BRUCE B. SAMSON]
____________
[UNDERWRITERS]
Dear Sirs:
With reference to the issuance and sale by Northwest Natural Gas
Company (the "Company") pursuant to the Underwriting Agreement, dated
___________ (the "Agreement"), between the Company and you of
________________ in principal amount of First Mortgage Bonds, _______
Series due ____ (the "Securities"), issued under the Company's Mortgage and
Deed of Trust, dated as of July 1, 1946, as supplemented by _________
indentures supplemental thereto, the latest dated as of _____________, to
Bankers Trust Company and Stanley Burg, as Trustees (such Mortgage, as so
supplemented, being hereinafter called the "Indenture"), please be advised
that, as General Counsel of the Company, I have participated in the
preparation of or reviewed (a) the registration statement relating to the
Securities filed by the Company with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933 (the "Securities Act")
(such registration statement, as it became effective, being hereinafter
called the "Registration Statement" and the prospectus constituting a part
of the Registration Statement, in the form (i) completed or supplemented,
(ii) dated ______________, and (iii) filed with the Commission pursuant to
Rule 424(b) under the Securities Act, including the documents incorporated
therein by reference pursuant to Item 12 of Form S-3 on the date hereof,
being hereinafter called the "Prospectus"); (b) the proceedings before the
Public Utility Commission of Oregon and the Washington Utilities and
Transportation Commission for authority to issue and sell the Securities
and the order or orders entered by those Commissions in respect thereto;
(c) the Restated Articles of Incorporation of the Company, its Bylaws and
the actions taken by its Board of Directors and the Executive Committee
thereof authorizing the issuance and sale of the Securities; (d) the
Indenture; and (e) such other matters as I have deemed to be necessary to
enable me to render the opinions herein expressed. I have not examined the
Securities, except a specimen thereof, and have relied upon a certificate
of Bankers Trust Company as to the authentication thereof.
In my examination of the documents referred to above, I have
assumed the authenticity of all such documents submitted to me as
originals, the genuineness of all signatures, the due authority of the
persons executing such documents and the conformity to the originals of all
documents submitted to me as copies.
I am of the opinion that:
1. The Company is a validly organized and existing corporation
in good standing under the laws of the State of Oregon, is qualified
to do business and is in good standing in the State of Washington, and
has power (corporate and other) to own its properties and conduct its
business as described in the Prospectus.
2. The Company holds valid and subsisting franchises, licenses,
permits and consents, free from burdensome restrictions and adequate
for the conduct of its business as and to the extent set forth in the
Registration Statement.
3. The Indenture has been duly and validly authorized by all
necessary corporate action, has been duly and validly executed and
delivered, and is a valid and binding instrument enforceable in
accordance with its terms, except as limited by bankruptcy,
insolvency, or other laws affecting the enforcement of mortgagees' and
other creditors' rights, and conforms to the description thereof
contained in the Prospectus.
4. The Company has good and sufficient title to all the
properties described in, and as subject to the lien of, the Indenture
and now owned by it subject only to excepted encumbrances as defined
in the Indenture, and to minor defects and irregularities customarily
found in properties of like size and character, which do not
materially impair the use of the property affected thereby in the
operation of the business of the Company; the description in the
Indenture of said properties is adequate to constitute the Indenture a
lien thereon; and the Indenture constitutes a valid, direct first
mortgage lien on such properties, which include substantially all of
the permanent physical properties and franchises of the Company (other
than those expressly excepted), subject only to the exceptions
enumerated above in this paragraph.
5. The Securities have been duly and validly authorized and,
when the Securities shall have been delivered against payment therefor
as provided in the Agreement, they will have been duly and validly
issued and will be legal, valid and binding obligations of the Company
enforceable in accordance with their terms, except as limited by
bankruptcy, insolvency, or other laws affecting the enforcement of
mortgagees' and other creditors' rights and will be entitled to the
benefit of the security afforded by the Indenture.
6. The Securities conform as to legal matters with the
description thereof contained in the Prospectus.
7. The Registration Statement has become, and on the date
hereof is, effective under the Securities Act, and, to the best of my
knowledge, no proceedings for a stop order with respect thereto are
pending under Section 8 of the Securities Act, and no order directed
to the adequacy or accuracy of any document incorporated by reference
in the Registration Statement or Prospectus has been issued by the
Commission.
8. The Public Utility Commission of Oregon and the Washington
Utilities and Transportation Commission have issued orders authorizing
the issuance and sale by the Company of the Securities; the issuance
and sale of the Securities in accordance with the Agreement are in
conformity with the terms of such orders; and no further approval,
authorization, consent or other order of any public board or body
(other than in connection or in compliance with the provisions of the
securities or blue sky laws of any jurisdiction) is legally required
for the issuance and sale of the Securities on the terms and
conditions set forth in the Agreement.
9. The Agreement has been duly and validly authorized, executed
and delivered by or on behalf of the Company.
10. There are no legal, governmental or administrative
proceedings pending to which the Company is a party or of which any
property of the Company is the subject, other than as set forth in the
Prospectus and other than proceedings incident to the kind of business
conducted by the Company, the outcome of which would singly or in the
aggregate have a materially adverse effect on the financial position,
stockholders' equity or results of operations of the Company; and, to
the best of my knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
11. The statements made in the Prospectus as to matters of law
and legal conclusions which, as stated therein, have been set forth
therein on my authority as an expert, have been reviewed by me and are
correct. The descriptions of legal and governmental proceedings
contained in the Prospectus are, to the best of my knowledge, accurate
and fairly present the information required to be shown therein.
12. The consummation of the transactions contemplated in the
Agreement and the fulfillment of the terms thereof will not result in
a breach of any of the terms or provisions of, or constitute a default
under, any statute, indenture, mortgage, deed of trust or other
agreement or instrument known to me to which the Company is a party or
by which it is bound or to which any of the property of the Company is
subject, or the Restated Articles of Incorporation or Bylaws of the
Company or any order, rule or regulation of any court or other
governmental body having jurisdiction over the Company or any of its
property.
Based upon my examination of the Registration Statement and the
Prospectus and my familiarity, as General Counsel of the Company, with its
business and affairs, I have no reason to believe either that the
Registration Statement, as of the date that it became effective, contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, except that, in each case, no opinion or belief
is expressed herein with respect to the financial statements or other
financial data of the Company contained in the Registration Statement or
the Prospectus.
I am a member of the bars of the States of Oregon and Washington
and do not hold myself out as expert on the laws of any other state.
I have read the opinions of even date herewith rendered to you by
Reid & Priest and Simpson Thacher & Bartlett, and I concur in the
conclusions therein expressed, insofar as such conclusions involve
questions of Oregon and Washington law.
Reid & Priest and Simpson Thacher & Bartlett, as to matters
governed by the laws of the State of Oregon or the State of Washington, may
rely upon this opinion as if it were addressed directly to each of them; it
being understood, however, that this opinion may be relied upon by you and
by them only in connection with the issuance and sale of the Securities.
This opinion may not be relied upon by you or by them for any other
purpose, or relied upon by any other person without, in each instance, my
prior written consent.
Very truly yours,
BRUCE B. SAMSON
EXHIBIT B
[REID & PRIEST]
______________
[UNDERWRITERS]
Dear Sirs:
With reference to the issuance and sale by Northwest Natural Gas
Company (the "Company") pursuant to the Underwriting Agreement, dated
______________ (the "Agreement"), between the Company and you of
______________ in principal amount of First Mortgage Bonds, ______ Series
due ____ (the "Securities"), issued under the Company's Mortgage and Deed
of Trust, dated as of July 1, 1946, as supplemented by __________
indentures supplemental thereto, the latest dated as of ____________, to
Bankers Trust Company and Stanley Burg, as Trustees (such Mortgage, as so
supplemented, being hereinafter called the "Indenture"), please be advised
that, as counsel to the Company, we have participated in the preparation of
or reviewed (a) the registration statement relating to the Securities filed
by the Company with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933 (the "Securities Act") (such
registration statement, as it became effective, being hereinafter called
the "Registration Statement" and the prospectus constituting a part of the
Registration Statement, in the form (i) completed or supplemented, (ii)
dated ______________ and (iii) filed with the Commission pursuant to Rule
424(b) under the Securities Act, including the documents incorporated
therein by reference pursuant to Item 12 of Form S-3 on the date hereof,
being hereinafter called the "Prospectus"); (b) the proceedings before the
Public Utility Commission of Oregon and the Washington Utilities and
Transportation Commission for authority to issue and sell the Securities
and the order or orders entered by the Commissions in respect thereto; (c)
the Restated Articles of Incorporation of the Company, its Bylaws and the
actions taken by its Board of Directors and the Executive Committee thereof
authorizing the issuance and sale of the Securities; (d) the Indenture; and
(e) such other matters as we have deemed to be necessary to enable us to
render the opinions herein expressed. We have not examined the Securities,
except a specimen thereof, and have relied upon a certificate of Bankers
Trust Company as to the authentication thereof.
In our examination of the documents referred to above, we have
assumed the authenticity of all such documents submitted to us as
originals, the genuineness of all signatures, the due authority of the
persons executing such documents and the conformity to the originals of all
documents submitted to us as copies.
Based upon the foregoing, we are of the opinion that:
1. The Company is a validly organized and existing corporation
in good standing under the laws of the State of Oregon, and is
qualified to do business and is in good standing in the State of
Washington.
2. The Indenture has been duly and validly authorized by all
necessary corporate action, has been duly and validly executed and
delivered, has been duly qualified under the Trust Indenture Act of
1939, as amended, and is a valid and binding instrument enforceable in
accordance with its terms, except as limited by bankruptcy, insolvency
or other laws affecting enforcement of mortgagees' and other
creditors' rights.
3. The Securities are legal, valid and binding obligations of
the Company enforceable in accordance with their terms, except as
limited by bankruptcy, insolvency or other laws affecting enforcement
of mortgagees' and other creditors' rights and are entitled to the
benefit of the security afforded by the Indenture.
4. The Indenture and the Securities conform as to legal matters
with the descriptions thereof contained in the Prospectus.
5. The Registration Statement has become, and on the date
hereof is, effective under the Securities Act, and, to the best of our
knowledge, no proceedings for a stop order with respect thereto are
pending under Section 8 of the Securities Act, and no order directed
to the adequacy or accuracy of any document incorporated by reference
in the Registration Statement or Prospectus has been issued by the
Commission.
6. The Registration Statement, as of its effective date, and
the Prospectus, as of the time it was filed with the Commission
pursuant to Rule 424(b) complied as to form in all material respects
with the requirements of the Securities Act, the Trust Indenture Act
of 1939, as amended, and the rules and regulations thereunder, and the
documents incorporated by reference in the Prospectus on the date
hereof complied as to form in all material respects with the
requirements of the Securities Exchange Act of 1934 and the rules and
regulations thereunder at the respective times at which such documents
were filed with the Commission, except that we express no opinion with
respect to the financial statements and other financial data contained
in the Registration Statement or the Prospectus.
7. The Public Utility Commission of Oregon and the Washington
Utilities and Transportation Commission have issued orders authorizing
the issuance and sale by the Company of the Securities; the issuance
and sale of the Securities are in conformity with the terms of such
orders; and no further approval, authorization, consent or other order
of any public board or body (other than in connection or in compliance
with the provisions of the securities or blue sky laws of any
jurisdiction) is legally required for the issuance and sale of the
Securities on the terms and conditions set forth in the Agreement.
8. The Agreement has been duly and validly authorized, executed
and delivered by or on behalf of the Company.
In passing upon the form of the Registration Statement and the
Prospectus, we necessarily assume the correctness and completeness of the
statements made therein by the Company and take no responsibility therefor,
except as set forth in paragraph 4 above. In the course of the preparation
by the Company of the Registration Statement, we had conferences with
certain of its officers and employees and with the General Counsel of the
Company. Our examination of the Registration Statement and the Prospectus
and our discussions in the above-mentioned conferences did not disclose to
us any information which gives us reason to believe either that the
Registration Statement, as of the date it became effective, contained any
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, except that, in each case, no opinion or belief
is expressed herein with respect to the financial statements or other
financial data contained in the Registration Statement or the Prospectus.
We are members of the New York Bar and do not hold ourselves out
as experts on the laws of the States of Oregon and Washington. As to all
matters of Oregon and Washington law (including titles to property and
franchises and the lien of the Indenture, upon which we do not pass), we
have relied, with your consent, upon an opinion addressed to you of even
date herewith of Bruce B. Samson, Esq., General Counsel of the Company,
whom we believe to be qualified to pass upon such matters.
This opinion may be relied upon by you only in connection with
the issuance and sale of the Securities. This opinion may not be relied
upon by you for any other purpose, or relied upon by any other person,
without, in each instance, our prior written consent.
Very truly yours,
REID & PRIEST
EXHIBIT C
[Letterhead of Simpson Thacher & Bartlett (A Partnership
which Includes Professional Corporations)]
______, 1994
[Representatives]
and the other several
Underwriters named in Schedule I
to the Underwriting Agreement
dated ______, 199- with
Northwest Natural Gas Company
[Address]
Dear Sirs:
We have acted as your counsel in connection with the purchase by
you, pursuant to the Underwriting Agreement dated _____, 199_ (the
"Underwriting Agreement") between Northwest Natural Gas Company, an Oregon
corporation (the "Company"), and you of $__________ aggregate principal
amount of First Mortgage Bonds, _____% Series Due ____ (the "Securities"),
of the Company, issued under the Company's Mortgage and Deed of Trust dated
as of July 1, 1946, as supplemented by _______ indentures supplemental
thereto, the latest dated as of _____, 199_ (said Mortgage and Deed of
Trust, as so supplemented, being herein called the "Mortgage"), to Bankers
Trust Company (the "Corporate Trustee") and Stanley Burg (successor
Individual Trustee), as Trustees (the "Trustees").
We have examined the Registration Statement on Form S-3 (File No.
33-______) filed by the Company under the Securities Act of 1933, as
amended (the "Act"), as it became effective under the Act (the
"Registration Statement"); the Company's prospectus dated ______, 1994, as
supplemented by the prospectus supplement dated _____, 199_ (the
"Prospectus"), filed by the Company pursuant to Rule 424(b) of the rules
and regulations of the Securities and Exchange Commission (the
"Commission") under the Act, which pursuant to Form S-3 incorporates by
reference or is deemed to incorporate by reference the Annual Report on
Form 10-K of the Company for the fiscal year ended December 31, 199_, and
____________ (the "Exchange Act Documents"), each as filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); and the
Mortgage. In addition, we have examined, and have relied as to matters of
fact upon, the documents delivered to you at the closing (except the
Securities, of which we have examined a specimen), and upon originals or
copies, certified or otherwise identified to our satisfaction, of such
corporate records, agreements, documents and other instruments and such
certificates or comparable documents or oral statements of public officials
and of officers and representatives of the Company, and have made such
other and further investigations, as we have deemed relevant and necessary
as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such latter documents.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we hereby advise you that in our opinion:
1. The Company has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of the
State of Oregon.
2. The Mortgage has been duly authorized, executed and delivered
by the Company and duly qualified under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and, assuming due
authorization, execution and delivery thereof by the Trustees,
constitutes a valid and legally binding instrument of the Company
enforceable against the Company in accordance with its terms.
3. The Securities have been duly authorized, executed and issued
by the Company and, assuming due authentication thereof by the
Corporate Trustee and upon payment and delivery in accordance with the
Underwriting Agreement, will constitute valid and legally binding
obligations of the Company enforceable against the Company in
accordance with their terms and entitled to the benefits of the
Mortgage.
4. The statements made in the Prospectus under the captions
"Description of the New Bonds" and ________, insofar as they purport
to constitute summaries of the terms of documents referred to therein,
constitute accurate summaries of the terms of such documents in all
material respects.
5. The Underwriting Agreement has been duly authorized, executed
and delivered by the Company.
6. The Public Utility Commission of Oregon and the Washington
Utilities and Transportation Commission have issued orders authorizing
the issuance and sale by the Company of the Securities; the issuance
and sale of the Securities in accordance with the Underwriting
Agreement are in conformity with the terms of such orders; and no
other approval or consent of any Federal, Oregon or Washington
governmental body (except for any approval or consent under state
"blue sky" or securities laws, as to which we express no opinion) is
required for the issuance and sale of the Securities to you on the
terms and conditions set forth in the Underwriting Agreement.
Our opinions set forth in paragraphs 2 and 3 above are subject to
the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing.
All legal proceedings taken by the Company in connection with the
authorization and delivery of the Securities, and the legal opinions dated
the date hereof, rendered to you by Bruce B. Samson, Esq., General Counsel
of the Company, and Reid & Priest, counsel for the Company, are in form
satisfactory to us. Insofar as the opinions expressed herein relate to or
are dependent upon matters governed by the laws of the States of Oregon
and/or Washington, we have relied upon the aforesaid opinion of Bruce B.
Samson, Esq. We express no opinion on matters relating to titles to
property, franchises or the lien of the Mortgage.
We have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration Statement,
the Prospectus or the Exchange Act Documents and take no responsibility
therefor, except as and to the extent set forth in paragraph 4 above. In
the course of the preparation by the Company of the Registration Statement
and the Prospectus (excluding the Exchange Act Documents), we participated
in conferences with certain officers and employees of the Company, with
representatives of Deloitte & Touche and with counsel to the Company. We
did not prepare the Exchange Act Documents or review the Exchange Act
Documents prior to their filing with the Commission. Based upon our
examination of the Registration Statement, the Prospectus and the Exchange
Act Documents, our investigations made in connection with the preparation
of the Registration Statement and the Prospectus (excluding the Exchange
Act Documents) and our participation in the conferences referred to above,
(i) we are of the opinion that the Registration Statement, as of its
effective date, and the Prospectus, as of ____________, 199__, complied as
to form in all material respects with the requirements of the Act, the
Trust Indenture Act and the applicable rules and regulations of the
Commission thereunder and that the Exchange Act Documents complied as to
form when filed in all material respects with the requirements of the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, except that in each case we express no opinion with respect to
the financial statements or other financial or statistical data contained
or incorporated by reference in the Registration Statement, the Prospectus
or the Exchange Act Documents, and (ii) we have no reason to believe that
the Registration Statement [, as of its effective date (including the
Exchange Act Documents on file with the Commission on such effective date,]
[, as of the date of filing of the Annual Report on Form 10-K of the
Company for the fiscal year ended December 31, 199_ (including such Annual
Report for the fiscal year ended December 31, 199_),] contained any untrue
statement of a material fact or omitted to state any material fact required
to be stated therein or necessary in order to make the statements therein
not misleading or that the Prospectus (including the Exchange Act
Documents) contains any untrue statement of a material fact or omits to
state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, except that in each case we express no belief with respect to
the financial statements or other financial or statistical data contained
or incorporated by reference in the Registration Statement, the Prospectus
or the Exchange Act Documents.
We are members of the Bar of the State of New York and we do not
express any opinion herein concerning any law other than the law of the
State of New York and the Federal law of the United States and, to the
extent set forth herein and in reliance solely upon the aforesaid opinion
of Bruce B. Samson, Esq., the laws of the States of Oregon and Washington.
This opinion is rendered to you in connection with the above
described transactions. This opinion may not be relied upon by you for any
other purpose, or relied upon by, or furnished to, any other person, firm
or corporation without our prior written consent.
Very truly yours,