Exhibit 1.1
EXECUTION COPY
PUGET SOUND ENERGY, INC.
(a Washington corporation)
5.757% Senior Notes due October 1,
2039
PURCHASE AGREEMENT
Dated: September 8, 2009
PUGET SOUND ENERGY, INC.
(a Washington corporation)
$350,000,000
5.757% Senior Notes due October 1,
2039
PURCHASE AGREEMENT
September 8, 2009
J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Banc of America Securities LLC
One Bryant Park
New York, New York 10036
RBS Securities Inc.
600 Washington Boulevard
Stamford, Connecticut 06901
SunTrust Robinson Humphrey, Inc.
303 Peachtree Street, 24 th Floor
Atlanta, Georgia 30308
As Representatives of the several
Underwriters
Ladies and Gentlemen:
Puget Sound Energy, Inc., a
Washington corporation (the “Company”), confirms its
agreement with J.P. Morgan Securities Inc. (“J.P.
Morgan”), Banc of America Securities LLC (“Banc of
America”), RBS Securities Inc. (“RBS”) and
SunTrust Robinson Humphrey, Inc. (“SunTrust”) and
each of the other Underwriters named in Schedule A hereto
(collectively, the “Underwriters,” which term shall
also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom J.P. Morgan, Banc of America, RBS
and SunTrust are acting as representatives (in such capacity, the
“Representatives”), with respect to the issue and sale
by the Company and the purchase by the Underwriters, acting
severally and not jointly, of the respective principal amounts set
forth in said Schedule A of $350,000,000 aggregate principal
amount of the Company’s 5.757% Senior Notes, Due
October 1, 2039 (the
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“Securities”). The Securities
are to be issued as a separate series of notes under the senior
note indenture dated as of December 1, 1997, as supplemented
by a fourth supplemental indenture dated as of May 1, 2003
(the “Indenture”) between the Company and U.S. Bank
National Association, as senior note trustee (the
“Trustee”). Until the Substitution Date (as
defined in the Indenture), the Securities will be secured by a
series of the Company’s first mortgage bonds (the
“Pledged Bonds”) issued pursuant to the Company’s
electric utility mortgage.
The Company understands that the
Underwriters propose to make a public offering of the Securities as
soon as the Representatives deem advisable after this Agreement has
been executed and delivered and the Indenture has been qualified
under the Trust Indenture Act of 1939, as amended (the “1939
Act”).
The Company has filed with the
Securities and Exchange Commission (the “Commission”)
an automatic shelf registration statement, as defined in
Rule 405 (“Rule 405”) of the rules and
regulations (the “1933 Act Regulations”) of the
Commission under the Securities Act of 1933, as amended (the
“1933 Act”), on Form S-3 (No. 333-157960),
including a related Base Prospectus contained therein (the
“Base Prospectus”), covering the registration of the
Securities under the 1933 Act. For purposes of this
Agreement, all references to the Registration Statement, any
preliminary prospectus (which term, as used herein, shall include
the Final Preliminary Prospectus), or the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system
(“EDGAR”).
All references in this Agreement to
financial statements and schedules and other information which is
“contained,” “included” or
“stated” in the Registration Statement, any preliminary
prospectus or the Prospectus (or other references of like import)
shall be deemed to mean and include all such financial statements
and schedules and other information which is incorporated by
reference in the Registration Statement, any preliminary prospectus
or the Prospectus, as the case may be. All references herein
to the Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Securities Exchange Act of
1934, as amended, (the “1934 Act”) on or before the
Effective Date of the Registration Statement or the issue date of,
any preliminary prospectus or the Prospectus, as the case may be;
and any reference herein to the terms “amend,”
“amendment” or “supplement” with respect to
the Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include the filing of
any document under the 1934 Act after the Effective Date of the
Registration Statement or the issue date of any preliminary
prospectus or the Prospectus, as the case may be, deemed to be
incorporated therein by reference.
Certain terms used herein are
defined in Section 20 hereof.
SECTION 1.
Representations and Warranties .
(a)
Representations and Warranties by the Company . The
Company represents and warrants to each Underwriter as of the date
hereof and as of the Closing Time referred to in
Section 2(b) hereof, and agrees with each Underwriter, as
follows:
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(i)
Compliance with Registration Requirements .
(A)
The Company meets the requirements for use of Form S-3 under
the 1933 Act. The Registration Statement became effective
upon filing and any post-effective amendment thereto has become
effective under the 1933 Act. No stop order suspending the
effectiveness, or any written or oral notice to the Company
objecting to the use of the Registration Statement or any
post-effective amendment thereto has been issued by the Commission
under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with.
The Company may have filed with the Commission, as part of an
amendment to the Registration Statement or pursuant to
Rule 424(b), one or more preliminary prospectus supplements
relating to the Securities, each of which has previously been
furnished to you. The Company will file with the Commission a
final prospectus supplement relating to the Securities in
accordance with the provisions of paragraph (b) of
Rule 424 (“Rule 424(b)”) of the 1933 Act
Regulations. As filed, such final prospectus supplement shall
contain all information required by the 1933 Act and the 1933 Act
Regulations, and, except to the extent the Representatives shall
agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time
or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes
(beyond that contained in the Base Prospectus and any preliminary
prospectus) as the Company has advised you, prior to the Execution
Time, will be included or made therein. The Registration
Statement, at the Execution Time, meets the requirements set forth
in Rule 415(a)(1)(x).
(B)
On each Effective Date, the Registration Statement did, and when
the Prospectus is first filed in accordance with
Rule 424(b) and at the Closing Time (as defined herein),
the Prospectus (and any supplement thereto) will, comply in all
material respects with the applicable requirements of the 1933 Act
and the 1933 Act Regulations, the 1934 Act and the and the
rules and regulations of the Commission under the 1934 Act
(the “1934 Act Regulations”) and the 1939 Act and the
rules and regulations of the Commission under the 1939 Act
(the “1939 Act Regulations”); on each Effective Date
and at the Execution Time, the Registration Statement did not and
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading; on each
Effective Date and at the Closing Time the Indenture did and will
comply in all material respects with the applicable requirements of
the 1939 Act and the rules thereunder; and on the date of any
filing pursuant to Rule 424(b) and at the Closing Time,
the Prospectus (together with any supplement thereto) will not
include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. The representations and warranties in this
subsection shall not apply (x) to statements in or omissions
from the Registration Statement or Prospectus made in reliance upon
and in conformity with written information furnished to the Company
by any Underwriter through the Representatives expressly for use in
the Registration Statement (or any amendment
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thereto) or in
the Prospectus (or any amendment or supplement thereto) or
(y) to that part of the Registration Statement that
constitutes the Statement of Eligibility (Form T-1) under the
1939 Act of the Trustee.
(C)
(i) the Disclosure Package and (ii) each, if any,
electronic roadshow when taken as a whole with the Disclosure
Package, at the Applicable Time do 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 light of the circumstances
under which they were made, not misleading. The preceding
sentence does not apply to statements in or omissions from the
Disclosure Package or any electronic roadshow based upon and in
conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use
therein.
(D)
(i) At the time of filing the Registration Statement,
(ii) at the time of the most recent amendment thereto for the
purposes of complying with Section 10(a)(3) of the Act
(whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Sections 13 or 15(d) of
the 1934 Act or form of prospectus), (iii) at the time the
Company or any person acting on its behalf (within the meaning, for
this clause only, of section (c) of Rule 163
(“Rule 163”) of the 1933 Act Regulations) made any
offer relating to the Securities in reliance on the exemption in
Rule 163, and (iv) at the Execution Time (with such date
being used as the determination date for purposes of this clause
(iv)) the Company was or is (as the case may be) a Well-Known
Seasoned Issuer. The Company agrees to pay the fees required
by the Commission relating to the Securities within the time
required by Rule 456(b)(1) of the 1933 Act Regulations
without regard to the proviso therein and otherwise in accordance
with Rules 456(b) and 457(r) of the 1933 Act
Regulations.
(E)
(i) At the earliest time after the filing of the Registration
Statement that the Company or another offering participant made a
bona fide offer (within the meaning of
Rule 164(h)(2) (“Rule 164(h)(2)”) of the
1933 Act Regulations) of the Securities and (ii) as of the
Execution Time (with such date being used as the determination date
for purposes of this clause (ii)) the Company was not and is not an
Ineligible Issuer (as defined in Rule 405), without taking
account of any determination by the Commission pursuant to
Rule 405 that it is not necessary that the Company be
considered an Ineligible Issuer.
(F)
Each issuer free writing prospectus, as defined in Rule 433
(“Rule 433”) of the 1933 Act Regulations (each an
“Issuer Free Writing Prospectus”), including the final
term sheet prepared and filed pursuant to
Section 3(b) hereto, does not include any information
that conflicts with the information contained in the Registration
Statement, including any document incorporated therein and any
prospectus supplement deemed to be a part thereof that has not been
superseded or modified. Each Issuer Free Writing Prospectus,
when taken as a whole with the Disclosure Package, at the
Applicable Time does 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 light of the circumstances under which
they were made, not misleading. The foregoing sentence does
not apply to statements in or omissions from any Issuer
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Free Writing
Prospectus based upon and in conformity with written information
furnished to the Company by any Underwriter through the
Representatives specifically for use therein.
(ii)
Incorporated Documents . The documents incorporated or
deemed to be incorporated by reference in the Registration
Statement, any preliminary prospectus and the Prospectus, at the
time they were or hereafter are filed with the Commission, complied
and will comply in all material respects with the requirements of
the 1934 Act and 1934 Act Regulations.
(iii)
Independent Registered Public Accounting Firm .
PricewaterhouseCoopers LLP, which has certified the financial
statements and supporting schedules filed with the Commission and
incorporated by reference in the Registration Statement, and which
has audited the Company’s internal control over financial
reporting, is an independent public accounting firm as required by
the 1933 Act and the 1933 Act Regulations and to the best of our
knowledge, is registered as such.
(iv)
Financial Statements . The financial statements
included in the Registration Statement, any preliminary prospectus
and the Prospectus, together with the related schedules and notes,
present fairly the financial position of the Company and its
consolidated subsidiaries at the dates indicated and the statement
of operations, stockholders’ equity and cash flows of the
Company and its consolidated subsidiaries for the periods
specified; said financial statements have been prepared in
conformity with generally accepted accounting principles
(“GAAP”) applied on a consistent basis throughout the
periods involved. The supporting schedules, if any, included
in the Registration Statement, any preliminary prospectus and the
Prospectus present fairly in accordance with GAAP the information
required to be stated therein. The selected financial data
and the summary financial information, if any, included in the
Registration Statement, any preliminary prospectus and the
Prospectus present fairly the information shown therein and have
been compiled on a basis consistent with that of the audited
financial statements included in the Registration Statement.
Any pro forma financial statements and the related notes thereto
included in the Registration Statement, any preliminary prospectus
and the Prospectus present fairly the information shown therein,
have been prepared in accordance with the Commission’s
rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to
therein.
(v)
No Material Adverse Change in Business . Since the
respective dates as of which information is given in the
Registration Statement, the Disclosure Package and the Prospectus,
except as otherwise stated in the Disclosure Package and the
Prospectus, (A) there has been no material adverse change in
the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business (a “Material Adverse
Effect”) and (B) there have been no transactions entered
into by the Company or any of its subsidiaries, other than those in
the ordinary course of business,
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which are
material with respect to the Company and its subsidiaries
considered as one enterprise. Except as has been previously
disclosed to counsel for the Representatives in writing or via
email prior to the date hereof, since June 30, 2009, there has
been no dividend or distribution of any kind declared, paid or made
by the Company on any class of its capital stock.
(vi)
Good Standing of the Company . The Company has been
duly organized and is validly existing as a corporation under the
laws of the State of Washington and has corporate power and
authority to own, lease and operate its properties and to conduct
its business as described in the Disclosure Package and the
Prospectus and to enter into and perform its obligations under this
Agreement; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect.
(vii)
Significant Subsidiaries . The Company has no
“significant subsidiaries” (as such term is defined in
Rule 1-02 of Regulation S-X).
(viii)
Authorization of Agreement . This Agreement has been
duly authorized, executed and delivered by the Company.
(ix)
Authorization of the Indenture . The Indenture has
been duly authorized by the Company and duly qualified under the
1939 Act and, when duly executed and delivered by the Company, and
assuming due execution by the Trustee, will constitute a valid and
binding agreement of the Company, enforceable against the Company
in accordance with its terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors’ rights generally and except as enforcement thereof
is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at
law).
(x)
Authorization of the Securities . The Securities have
been duly authorized and, at the Closing Time, will have been duly
executed by the Company and, when authenticated, issued and
delivered in the manner provided for in the Indenture and delivered
against payment of the purchase price therefor as provided in this
Agreement, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors’ rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law), and will be in the
form contemplated by, and entitled to the benefits of, the
Indenture.
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(xi)
Description of the Securities and the Indenture . The
Securities, the Pledged Bonds and the Indenture will conform in all
material respects to the respective statements relating thereto
contained in the Registration Statement, the Disclosure Package and
the Prospectus and will be in substantially the respective forms
filed or incorporated by reference, as the case may be, as exhibits
to the Registration Statement. The information in any
preliminary prospectus relating to the offering of the Securities
and in the Prospectus under “Description of the Senior
Notes” or any caption purporting to cover such matters, in
the Registration Statement under Item 15 and in the Company’s
Annual Report on Form 10-K for the year ended
December 31, 2008, under “Regulation and
Rates” and “Legal Proceedings,” to the extent
that it constitutes matters of law, summaries of legal matters, the
Company’s charter and bylaws or legal proceedings, or legal
conclusions, is correct in all material respects.
(xii)
Absence of Defaults and Conflicts . Neither the
Company nor any of its subsidiaries is in violation of its charter
or by-laws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which it or
any of them may be bound, or to which any of the property or assets
of the Company or any subsidiary is subject (collectively,
“Agreements and Instruments”) except for such defaults
that would not reasonably be expected to result in a Material
Adverse Effect; and the execution, delivery and performance of this
Agreement, the Indenture, the Securities and the Pledged Bonds and
the consummation of the transactions contemplated herein and in the
Registration Statement, the Disclosure Package and the Prospectus
(including the issuance and sale of the Securities and the use of
the proceeds from the sale of the Securities as described in any
preliminary prospectus and the Prospectus under the caption
“Use of Proceeds”) and compliance by the Company with
its obligations hereunder and under the Indenture, the Securities
and the Pledged Bonds have been duly authorized by all necessary
corporate action and do not and will not, whether with or without
the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or
any subsidiary pursuant to, the Agreements and Instruments (except
for such conflicts, breaches, defaults or Repayment Events or
liens, charges or encumbrances that would not reasonably be
expected to result in a Material Adverse Effect), nor will such
action result in (x) any violation of the provisions of the
charter or by-laws of the Company or any subsidiary or (y) any
applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any
subsidiary or any of their assets, properties or operations (except
for such violations in the case of clause (y) that would not
reasonably be expected to result in a Material Adverse
Effect). As used herein, a “Repayment Event”
means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting
on such holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by
the Company or any subsidiary.
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(xiii)
Absence of Labor Dispute . No labor dispute with the
employees of the Company or any subsidiary exists or, to the
knowledge of the Company, is imminent, and the Company is not aware
of any existing or imminent labor disturbance by the employees of
any of its or any subsidiary’s principal suppliers,
manufacturers, customers or contractors, which, in either case,
would reasonably be expected to result in a Material Adverse
Effect.
(xiv)
Absence of Proceedings . There is no action, suit,
proceeding, inquiry or investigation (collectively
“Proceedings”) before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or,
to the knowledge of the Company, threatened, against or affecting
the Company or any subsidiary, which is required to be disclosed in
the Registration Statement (other than as disclosed therein), or,
except for Proceedings described in the Final Preliminary
Prospectus and the Prospectus, (A) which might result in a
Material Adverse Effect, or (B) which might materially and
adversely affect the consummation of the transactions contemplated
in this Agreement or the performance by the Company of its
obligations hereunder, or under the terms of the Indenture, the
Securities, or the Pledged Bonds.
(xv)
Accuracy of Exhibits . All descriptions in the
Registration Statement, any preliminary prospectus relating to the
offering of the Securities, the Disclosure Package and the
Prospectus of contracts and other documents to which the Company or
its subsidiaries are a party are accurate in all material respects;
there are no franchises, contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be
described or referred to in the Registration Statement, any
preliminary prospectus relating to the offering of the Securities,
the Prospectus, or to be filed as exhibits thereto other than those
described or referred to therein or filed or incorporated by
reference as exhibits thereto.
(xvi)
Absence of Manipulation . Neither the Company nor, to
the knowledge of the Company, any affiliate of the Company has
taken, nor will the Company or, to the knowledge of the Company,
any affiliate take, directly or indirectly, any action which is
designed to or which has constituted or which would be expected to
cause or result in stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the
Securities.
(xvii)
Absence of Further Requirements . Other than notice
filings with the Washington Utilities and Transportation Commission
(the “Utilities Commission”) pursuant to RCW80.08.040
with respect to the Securities and the Pledged Bonds, no filing
with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by
the Company of its obligations hereunder, in connection with the
offering, issuance or sale of the Securities hereunder or the
consummation of the transactions contemplated by this Agreement or
for the due execution, delivery or performance of the Indenture by
the Company, except such as have been already obtained or as may be
required under the 1933 Act or the 1933 Act Regulations or state
securities laws and except for the qualification of the Indenture
under the 1939 Act.
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(xviii)
Possession of
Licenses and Permits . The Company and its
subsidiaries possess such permits, licenses, approvals, consents
and other authorizations (collectively, “Governmental
Licenses”) issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies, including, without
limitation, the Utilities Commission and cities and towns within
the service territory of the Company, necessary to conduct the
business now operated by them and for the Company to own and
operate its electric plant and its gas plant; the Company and its
subsidiaries are in compliance with the terms and conditions of all
such Governmental Licenses, except where the failure so to comply
would not, singly or in the aggregate, result in a Material Adverse
Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full
force and effect would not, singly or in the aggregate, result in a
Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse
Effect.
(xix)
Title to
Property . The Company and its
subsidiaries have good and marketable title to all real property
owned by the Company and its subsidiaries and good title to all
other properties owned by them, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims, restrictions
or encumbrances of any kind except such as (a) are described
in the Disclosure Package and the Prospectus, (b) do not,
singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be
made of such property by the Company or any of its subsidiaries or
(c) could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect; and all of the leases
and subleases material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the
Company or any of its subsidiaries holds properties described in
the Disclosure Package and the Prospectus, are in full force and
effect, and neither the Company nor any subsidiary has any notice
of any material claim of any sort that has been asserted by anyone
adverse to the rights of the Company or any subsidiary under any of
the leases or subleases mentioned above, or affecting or
questioning the rights of the Company or such subsidiary to the
continued possession of the leased or subleased premises under any
such lease or sublease.
(xx)
Investment
Company Act . The Company is not,
and upon the issuance and sale of the Securities as herein
contemplated and the application of the net proceeds therefrom as
described in the Disclosure Package and the Prospectus will not be,
an “investment company” or a company
“controlled” by an “investment company”
which is required to be registered under the Investment Company Act
of 1940, as amended (the “1940 Act”).
(xxi)
Environmental
Laws . Except as described
in the Disclosure Package and the Prospectus and except as would
not, singly or in the aggregate, result in a Material Adverse
Effect, (A) neither the Company nor any of its subsidiaries is
in violation of any federal, state, local or foreign statute, law,
rule, regulation, ordinance, code, policy or rule of common
law or any judicial or administrative interpretation thereof,
including any
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judicial or
administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment
(including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products, asbestos-containing materials or
mold (collectively, “Hazardous Materials”) or to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials
(collectively, “Environmental Laws”), (B) the
Company and its subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and are
each in compliance with their requirements, (C) there are no
pending or, to the knowledge of the Company, threatened
administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its subsidiaries
and (D) there are no events or circumstances that would
reasonably be expected to form the basis of an order for clean-up
or remediation, or an action, suit or proceeding by any private
party or governmental body or agency, against or affecting the
Company or any of its subsidiaries relating to Hazardous Materials
or any Environmental Laws.
(xxii)
Utilities
Commission . The Company will
make, or has made, notice filings with the Utilities Commission
pursuant to RCW 80.08.040 with respect to the Securities and the
Pledged Bonds.
(xxiii)
Certain Loans,
Advances and Guarantees . There are no
outstanding loans, advances (except normal advances for business
expenses in the ordinary course of business) or guarantees of
indebtedness by the Company to or for the benefit of any of the
officers or directors of the Company or any of their respective
family members.
(xxiv)
Sarbanes-Oxley
Act . The Company is in
compliance in all material respects with all the applicable
provisions of the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated thereunder that are currently in effect and
require compliance on or before the date hereof.
(xxv)
Internal
Accounting Controls . The Company and its
consolidated subsidiaries maintain a system of internal control
over financial reporting (as defined in Rules 13a-15 and
15d-15 of the 1934 Act Regulations) sufficient to provide
reasonable assurances that (A) transactions are executed in
accordance with management’s general or specific
authorization; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets; (C) access to assets is permitted
only in accordance with management’s general or specific
authorization; and (D) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.
(xxvi)
Disclosure
Controls and Procedures . To the extent
required by the 1934 Act Regulations, the Company’s
“disclosure controls and procedures” (as defined
in
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Rules 13a-15
and 15d-15 of the 1934 Act Regulations) are reasonably designed to
ensure that all information (both financial and non-financial)
required to be disclosed by the Company in the reports that it
files or submits under the 1934 Act is recorded, processed,
summarized and reported within the time periods specified in the
1934 Act and the 1934 Act Regulations, and that all such
information is accumulated and communicated to the Company’s
management as appropriate to allow timely decisions regarding
required disclosure and to make the certifications of the principal
executive officer and principal financial officer of the Company
required under the 1934 Act with respect to such
reports.
(xxvii)
The Pledged
Bonds . The Pledged Bonds
have been duly authorized by the Company for offer, sale, issuance
and delivery pursuant to this Agreement, validly secure the
Securities and, when issued, authenticated and delivered in the
manner provided for in the applicable mortgage and delivered
against payment of the consideration therefor, will constitute
valid and legally binding obligations of the Company, enforceable
against the Company in accordance with their terms, subject to
applicable bankruptcy, insolvency or similar laws affecting
creditors’ rights generally and general principles of
equity.
(b)
Officer’s
Certificates . Any certificate
signed by any officer of the Company or any of its subsidiaries
delivered to the Representatives or to counsel for the Underwriters
shall be deemed a representation and warranty by the Company to
each Underwriter as to the matters covered thereby.
SECTION 2.
Sale and
Delivery to Underwriters; Closing .
(a)
Securities
. On the
basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, severally and not jointly, and
each Underwriter, severally and not jointly, agrees to purchase
from the Company, at the price set forth in Schedule B, the
aggregate principal amount of Securities set forth in Schedule A
opposite the name of such Underwriter, plus any additional
principal amount of Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10
hereof.
(b)
Payment
. Payment
of the purchase price for, and delivery of certificates for, the
Securities shall be made at the offices of Skadden, Arps, Slate,
Meagher & Flom LLP, 4 Times Square, New York, New York
10036-6522, or at such other place as shall be agreed upon by the
Representatives and the Company, at 9:00 A.M. (Eastern time)
on the third (3 rd ) business day after the date
hereof (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten business
days after such date as shall be agreed upon by the Representatives
and the Company (such time and date of payment and delivery being
herein called the “Closing Time”).
Payment shall be made to the Company
by wire transfer of immediately available funds to a bank account
designated by the Company, against delivery to the Representatives
for the respective accounts of the Underwriters of certificates for
the Securities to be purchased by them. It is understood that
each Underwriter has authorized the Representatives, for its
account, to
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accept delivery of, receipt for, and make
payment of the purchase price for, the Securities which it has
agreed to purchase. J.P. Morgan, Banc of America, RBS and
SunTrust individually and not as Representatives of the
Underwriters, may (but shall not be obligated to) make payment of
the purchase price for the Securities to be purchased by any
Underwriter whose funds have not been received by the Closing Time,
but such payment shall not relieve such Underwriter from its
obligations hereunder. !
(c)
Denominations;
Registration . Certificates for the
Securities shall be in such denominations ($1,000 or integral
multiples thereof) and registered in such names as the
Representatives may request in writing at least one full business
day before the Closing Time.
SECTION 3.
Covenants of
the Company . The Company covenants
with each Underwriter as follows:
(a)
Compliance
with Securities Regulations and Commission Requests
. The
Company will cause the Prospectus, properly completed, and any
supplement thereto to be filed in a form approved by the
Representatives with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. During the period when
the Prospectus is required to be delivered under the 1933 Act in
connection with the offer and sale of the Securities (including in
circumstances where such requirement may be satisfied pursuant to
Rule 172 (“Rule 172”) of the 1933 Act
Regulations), the Company, subject to Section 3(c), will
notify the Representatives immediately, and confirm the notice in
writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to
the Prospectus or any amended Prospectus shall have been filed,
(ii) of the receipt of any comments from the Commission,
(iii) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the
Prospectus or any document incorporated by reference therein or for
additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the
use of any preliminary prospectus, the Disclosure Package or the
Prospectus or of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such
purposes. The Company will use its commercially reasonable
efforts to prevent the issuance of any such stop order or the
occurrence of any such suspension or objection by the Commission to
the use of the Registration Statement and, upon such issuance,
occurrence or notice of objection, to obtain as soon as possible
the withdrawal of such stop order or relief from such occurrence or
objection, including, if necessary, by filing an amendment to the
Registration Statement or a new registration statement and using
its best efforts to have such amendment or new registration
statement declared effective as soon as practicable.
(b)
Final Term
Sheet . The Company will
prepare a final term sheet, containing solely a description of
final terms of the Securities and the offering thereof, in a form
approved by you and attached as Exhibit B hereto and will
timely file such term sheet pursuant to Rule 433(d) of
the 1933 Act Regulations.
(c)
Disclosure
Package . If, at any time prior
to the filing of the Prospectus, any event occurs as a result of
which the Disclosure Package would include any untrue statement of
a
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material fact or
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