SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) February 28, 2001
IDACORP, Inc.
(Exact name of registrant as specified in its charter)
Idaho 1-14465 82-0505802
(State or other (Commission (I.R.S. Employer
jurisdiction of incorporation) File Number) Identification No.)
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1221 West Idaho Street
Boise, Idaho 83702-5627
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (208) 388-2200
IDACORP, Inc.
Form 8-K
Items 1 through 6 and 8 and 9 are inapplicable and have been omitted herefrom.
1. Selling Agency Agreement dated February 28, 2001.
4.1 Indenture for Senior Debt Securities dated as of February 1, 2001
4.2 First Supplemental Indenture to Indenture for Senior Debt Securities, dated as of February 1, 2001.
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
IDACORP, Inc.
By: /s/ J. LaMont Keen
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J. LaMont Keen
Senior Vice President - Administration and
Chief Financial Officer
By: /s/ Darrel T. Anderson
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Darrel T. Anderson
Vice President - Finance and Treasurer
Dated: February 28, 2001
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IDACORP, Inc.
Medium-Term Notes, Series A
Due From Nine Months to Forty Years
From Date of Issue
Selling Agency Agreement
February 28, 2001
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Dear Sirs:
IDACORP, Inc., an Idaho corporation (the "Company"), confirms its agreement
with you with respect to the issue and sale by the Company of up to $300,000,000
aggregate principal amount of its Medium-Term Notes, Series A, Due from Nine
Months to Forty Years from Date of Issue (the "Notes"). The Notes will be issued
under the Indenture for Senior Debt Securities, dated as of February 1, 2001,
between the Company and Bankers Trust Company, (the "Trustee"), as trustee, as
supplemented and amended by the First Supplemental Indenture thereto (the
"Supplemental Indenture"). The Indenture for Senior Debt Securities as it has
been and may be supplemented as of any specified date is hereinafter referred to
as the "Indenture." Unless otherwise specifically provided for and set forth in
a Pricing Supplement (as defined below), the Notes will be issued in minimum
denominations of $1,000 and in denominations exceeding such amount by integral
multiples of $1,000, will be issued only in fully registered form and will have
the interest rates, maturities and, if applicable, other terms set forth in such
Pricing Supplement. The Notes will be issued, and the terms thereof established,
in accordance with the Indenture and the Medium-Term Notes Administrative
Procedures attached hereto as Exhibit A, as they may be amended from time to
time (the "Procedures") (unless a Terms Agreement (as defined in Section 2(b))
modifies or otherwise supersedes such Procedures with respect to Notes issued
pursuant to such Terms Agreement). The Procedures may be amended only by written
agreement of the Company and you after notice to the Trustee. For the purposes
of this Agreement, the term "Agent" shall refer to you acting solely in the
capacity as agent for the Company pursuant to Section 2(a) and not as principal,
the term "Purchaser" shall refer to you acting solely as principal pursuant to
Section 2(b) and not as agent, and the term "you" shall refer to you whether at
any time you are acting in both such capacities or in either such capacity.
1. Representations and Warranties. The Company represents and warrants to, and agrees with, you as set forth below in this Section 1. Certain terms used in this Section 1 are defined in paragraph (e) hereof.
(a) The Company meets the requirements for use of Form S-3 under the Securities Act of 1933, as amended (the "Act") and has filed with the Securities and Exchange Commission (the "Commission") a registration statement on such form (File Number 333-64737), including a basic prospectus, which as amended by Amendment No.1 thereto has become effective, for the registration under the Act of $300,000,000 aggregate amount of its common stock, without par value, preferred stock, without par value, which may be represented by depository shares, and unsecured debt securities (the "Securities"), including the Notes. Such registration statement, as amended at the date of this Agreement, meets the requirements set forth in Rule 415(a)(1)(ix) or (x) under the Act and complies in all other material respects with said Rule. The Company has filed or will file with the Commission pursuant to the applicable paragraph of Rule 424(b) under the Act a supplement to the form of prospectus included in such registration statement relating to the Notes and the plan of distribution thereof (the "Prospectus Supplement"). In connection with the sale of Notes the Company proposes to file with the Commission pursuant to the applicable paragraph of Rule 424(b) under the Act further supplements to the Prospectus Supplement (each a "Pricing Supplement") specifying the interest rates, maturity dates and, if appropriate, other similar terms of the Notes sold pursuant hereto or the offering thereof.
(b)(i) As of the Execution Time and on the Effective Date, the Registration Statement complied and (ii) on each date any supplement to the Prospectus (as defined herein) relating to the Notes is filed with the Commission, as of the date of a Terms Agreement and at the date of delivery by the Company of any Notes sold hereunder (a "Closing Date"), the Prospectus, as supplemented as of any such time, and the Indenture will comply in all material respects with the applicable requirements of the Act, the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and the Securities Exchange Act of 1934, as amended (the "Exchange Act") and the respective rules thereunder; (iii) as of the Execution Time and on the Effective Date, the Registration Statement, as amended as of either such time, did 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; (iv) on each date any supplement to the Prospectus relating to the Notes is filed with the Commission, as of the date of a Terms Agreement and on any Closing Date, the Prospectus, as supplemented as of any such
time, will not contain 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; and (v) on any Closing Date no stop order suspending the effectiveness of the Registration Statement shall be in effect nor shall there have been instituted or threatened any proceeding for such purpose; provided, however, that the Company makes no representations or warranties as to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility of the Trustee (Form T-1), or amendments thereto, under the Trust Indenture Act or (ii) the information contained in or omitted from the Registration Statement or the Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Company by you specifically for inclusion in the Registration Statement or the Prospectus (or any supplement thereto).
(c) As of the time any Notes are issued and sold hereunder, the Indenture will constitute a legal, valid and binding instrument enforceable against the Company in accordance with its terms and such Notes will have been duly authorized, executed, authenticated and, when paid for by the purchasers thereof, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture.
(d) As of the time any Notes are issued and sold, the issue and sale of the Notes and the compliance by the Company with all of the provisions of the Notes, the Indenture, and this Agreement, and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such action result in any violation of the provisions of the Restated Articles of Incorporation or By-laws of the Company or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its properties; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement or the Indenture, except such orders as have been, or will have been prior to any Closing Date, obtained under the Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the sale and distribution of the Notes by the Agent.
(e) The terms which follow, when used in this Agreement, shall have the meanings indicated. The term "the Effective Date" shall mean each date that the Registration Statement and any post-effective amendment or amendments thereto became or become effective and each date after the date hereof on which the Company's most recent Annual Report on Form 10-K is filed. "Execution Time" shall mean the date and time that this Agreement is executed and delivered by the parties hereto. "Basic Prospectus" shall mean the form of basic prospectus relating to the Securities contained in the Registration Statement at the Effective Date. "Prospectus" shall mean the Basic Prospectus as supplemented by the Prospectus Supplement and any applicable Pricing Supplement. "Registration Statement" shall mean the registration statement referred to in paragraph (a) above, including incorporated documents, exhibits and financial statements, as amended at the Execution Time. "Rule 415" and "Rule 424", refer to such rules under the Act. Any reference herein to the Registration Statement, the Basic Prospectus, the Prospectus Supplement 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 Exchange Act on or before the Effective Date of the Registration Statement or the issue date of the Basic Prospectus, the Prospectus Supplement 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, the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of the Basic Prospectus, the Prospectus Supplement or the Prospectus, as the case may be, deemed to be incorporated therein by reference.
2. Appointment of Agent; Solicitation by the Agent of Offers to Purchase; Sales of Notes to a Purchaser. (a) Subject to the terms and conditions set forth herein and to the reservation by the Company of the right to sell Securities directly on its own behalf, the Company hereby authorizes the Agent to act as its agent to solicit offers for the purchase of all or part of the Notes from the Company.
On the basis of the representations and warranties, and subject to the terms and conditions set forth herein, the Agent agrees, as agent of the Company, when requested by the Company to use its reasonable best efforts to solicit offers to purchase the Notes from the Company upon the terms and conditions set forth in the Prospectus (and any supplement thereto) and in the
Procedures. The Agent shall make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase Notes has been
solicited by the Agent and accepted by the Company, but the Agent shall not,
except as otherwise provided in this Agreement, be obligated to disclose the
identity of any purchaser or have any liability to the Company in the event any
such purchase is not consummated for any reason. Except as provided in Section
2(b), under no circumstances will the Agent be obligated to purchase any Notes
for its own account. It is understood and agreed, however, that if approved by
the Company the Agent may purchase Notes as principal pursuant to Section 2(b).
The Agent agrees that in carrying out the transactions contemplated by the Agreement, it will observe and comply with all securities or blue sky laws, regulations, rules and ordinances in any jurisdiction in which the Notes may be offered, sold or delivered applicable to it as Agent hereunder. The Agent agrees not to cause any advertisement of the Notes to be published in any newspaper or periodical or posted in any public place and not to publicly issue any circular relating to the Notes other than the Prospectus, except in any case with the prior express consent of the Company.
The Company reserves the right, in its sole discretion, to instruct the Agent to suspend at any time, for any period of time or permanently, the solicitation of offers to purchase Notes. Upon receipt of instructions from the Company, the Agent will forthwith suspend solicitation of offers to purchase Notes from the Company until such time as the Company has advised it that such solicitation may be resumed.
The Company agrees to pay the Agent a commission, for the Agent's services in acting as an agent and not for a purchase by the Agent as principal, on the Closing Date with respect to each sale of Notes by the Company as a result of a solicitation made by the Agent, in an amount equal to that percentage specified in Schedule I hereto of the aggregate principal amount of the Notes sold by the Company. Such commission shall be payable as specified in the Procedures.
The Company may from time to time offer Securities or Notes for sale otherwise than through the Agent and from time to time may appoint additional agents to sell the Notes; provided, however, that so long as this Agreement shall be in effect, the Company shall not solicit or accept offers to purchase Notes through any agent other than the Agent, except that the Company may accept offers to purchase Notes through an agent other than the Agent if the Company gives the Agent reasonable prior notice of such acceptance and any such agent enters into an agreement with the Company on terms which are substantially similar to those contained in or incorporated in this Agreement.
If the Company shall default in its obligations to deliver Notes to a purchaser whose offer it has accepted, the Company shall indemnify and hold you harmless against any loss, claim or damage arising from or as a result of such default by the Company.
(b) Subject to the terms and conditions stated herein, whenever the Company and you determine that the Company shall sell Notes directly to you as principal, each such sale of Notes shall be made in accordance with the terms of this Agreement and a supplemental agreement relating to such sale. Each such supplemental agreement is herein referred to as a "Terms Agreement". Each Terms Agreement shall describe the Notes to be purchased by the Purchaser pursuant thereto and shall specify the aggregate principal amount of such Notes, the price to be paid to the Company for such Notes, the maturity date of such Notes, the rate at which interest will be paid on such Notes, the dates on which interest will be paid on such Notes and the record date with respect to each such payment of interest, the Closing Date for the purchase of such Notes, the place of delivery of the Notes and payment therefor, the method of payment and any requirements for the delivery of opinions of counsel, certificates from the Company or its officers or a letter from the Company's independent public accountants as described in Section 6(b). Any such Terms Agreement may also specify the period of time referred to in Section 4(1) and certain terms of the reoffering of the Notes. Any Terms Agreement shall be substantially in the form attached hereto as Exhibit B and may take the form of an exchange of any standard form of written telecommunication between the Purchaser and the Company. The Purchaser's commitment to purchase Notes shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth.
Delivery of the certificates for Notes sold to the Purchaser pursuant to a Terms Agreement shall be made not later than the Closing Date agreed to in such Terms Agreement, against payment of funds to the Company in the net amount due to the Company for such Notes by the method and in the form set forth in the Procedures unless otherwise agreed to between the Company and the Purchaser in such Terms Agreement.
Unless otherwise agreed to between the Company and the Purchaser in a Terms Agreement, any Note sold to a Purchaser (i) shall be purchased by such Purchaser at a price equal to 100% of the principal amount thereof less a percentage equal to the commission applicable to an agency sale of a Note of identical maturity and (ii) may be resold by such Purchaser at varying prices related to prevailing market prices determined at the time of resale or, if set forth in the applicable Terms Agreement and Pricing Supplement, at a fixed public offering price. In connection with any resale of Notes purchased, a Purchaser may
use a selling or dealer group and may reallow to any broker or dealer any portion of the discount or commission payable pursuant hereto. Any resale at a discount may not exceed the amount set forth in the Pricing Supplement relating to such Notes.
3. Offering and Sale of Notes. The Agent and the Company agree to perform the respective duties and obligations specifically provided to be performed by them in the Procedures.
4. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Notes (including
by way of resale by a Purchaser of Notes), the Company will not file any
amendment to the Registration Statement or supplement to the Prospectus
(except for (i) periodic or current reports filed under the Exchange Act,
(ii) a supplement relating to any offering of Notes providing solely for
the specification of or a change in the maturity dates, interest rates,
issuance prices or other similar terms of any Notes or (iii) an amendment
or a supplement relating to an offering of Securities other than the Notes)
unless the Company has furnished you through your counsel a copy for your
review prior to filing and given you a reasonable opportunity to comment on
any such proposed amendment or supplement. Subject to the foregoing
sentence, the Company will cause each supplement to the Prospectus to be
filed with the Commission pursuant to the applicable paragraph of Rule
424(b) within the time period prescribed and will provide evidence
satisfactory to you of such filing. The Company will promptly advise you
(i) when the Prospectus, and any supplement thereto, shall have been filed
with the Commission pursuant to Rule 424(b), (ii) when, prior to
termination of any offering of Notes, any amendment of the Registration
Statement (except periodic or current reports filed under the Exchange Act)
shall have been filed or become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement or supplement to
the Prospectus or for any additional information, (iv) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (v) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Notes for sale
in any jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the issuance
of any such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then
supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend the Registration Statement or to supplement the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will (i) notify you to suspend solicitation of offers to purchase Notes (and, if so notified by the Company, you shall forthwith suspend such solicitation and cease using the Prospectus as then supplemented), (ii) prepare and file with the Commission, subject to the first sentence of paragraph (a) of this Section 4, an amendment or supplement which will correct such statement or omission or effect such compliance and (iii) supply any supplemented Prospectus to you in such quantities as you may reasonably request. If such amendment or supplement is satisfactory in all respects to you, you will, upon the filing of such amendment or supplement with the Commission and upon the effectiveness of an amendment to the Registration Statement, if such an amendment is required, resume your obligation to solicit offers to purchase Notes hereunder.
(c) The Company, during the period when a prospectus relating to the
Notes is required to be delivered under the Act, will file promptly all
documents required to be filed with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act and will furnish to you
copies of such documents.
(d) As soon as practicable, the Company will make generally available
to its security holders and to you an earnings statement or statements of
the Company and its subsidiaries which will satisfy the provisions of
Section 11(a) of the Act and Rule 158 under the Act.
(e) The Company will furnish to you and your counsel, without charge, copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus may be required by the Act, as many copies of the Prospectus and any supplement thereto as you may reasonably request.
(f) The Company will use its best efforts to arrange for the qualification of the Notes for sale under the laws of such jurisdictions as you may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Notes, except that the Company shall not be required to qualify as a foreign corporation or dealer in securities or to execute a general consent to service of process in any jurisdiction.
(g) The Company shall, whether or not any sale of the Notes is consummated, (i) pay all expenses incident to the performance of its obligations under this Agreement and any Terms Agreement, including the fees and disbursements of its accountants and counsel, the cost of printing or other production and delivery of the Registration Statement, the Prospectus, all amendments thereof and supplements thereto, the Supplemental Indenture, this Agreement, any Terms Agreement and all other documents relating to the offering, the cost of preparing, printing, packaging and delivering the Notes, the fees and disbursements of your counsel incurred in compliance with Section 4(f) (such fees not to exceed $10,000), the fees and disbursements of the Trustee and the fees of any agency that rates the Notes, (ii) reimburse you as requested for all out-of-pocket expenses (including pre-approved advertising expenses), if any, incurred by you in connection with the implementation of this program and (iii) pay the reasonable fees and expenses of your counsel incurred in connection with the implementation of this program.
(h) Each acceptance by the Company of an offer to purchase Notes will be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance, as though made at and as of such time, and a covenant that such representations and warranties will be true and correct at the Closing Date relating to such acceptance, as though made at and as of such time (it being understood that for purposes of the foregoing affirmation and covenant such representations and warranties shall relate to the Registration Statement and Prospectus as amended or supplemented at each such time). Each such acceptance by the Company of an offer for the purchase of Notes shall be deemed to constitute an additional representation, warranty and agreement by the Company that, as of the Closing Date for the sale of such Notes, after giving effect to the issuance of such Notes, of any other Notes to be issued on or prior to such Closing Date and of any other Securities to be issued and sold by the Company on or prior to such Closing Date, the aggregate amount of Securities (including any Notes) which have been issued and sold by the Company will not exceed the amount of Securities registered pursuant to the Registration Statement. The Company will inform you promptly upon your request of the aggregate amount of Securities registered under the Registration Statement which remain unsold.
(i) Each time that the Registration Statement or the Prospectus is amended or supplemented (other than by an amendment or supplement (i) relating to any offering of Securities other than the Notes, (ii) providing solely for the specification of or a change in the maturity dates, the
interest rates, the issuance prices or other similar terms of any Notes sold pursuant hereto or a change in the principal amount of Securities remaining to be sold or (iii) in the form of an 8-K filed with the Commission solely for the purpose of filing exhibits pursuant to Item 601 of Regulation S-K), the Company will deliver or cause to be delivered promptly to you a certificate of the Company, signed by the Chairman of the Board or the President or the principal financial or accounting officer of the Company, dated the date of the effectiveness of such amendment or the date of the filing of such supplement, in form reasonably satisfactory to you, of the same tenor as the certificate referred to in Section 5(d) but modified to relate to the last day of the fiscal quarter for which financial statements of the Company were last filed with the Commission and to the Registration Statement and the Prospectus as amended and supplemented to the time of the effectiveness of such amendment or the filing of such supplement.
(j) Each time that the Registration Statement or the Prospectus is amended or supplemented (other than by an amendment or supplement (i) relating to any offering of Securities other than the Notes, (ii) providing solely for the specification of or a change in the maturity dates, the interest rates, the issuance prices or other similar terms of any Notes sold pursuant hereto or a change in the principal amount of Securities remaining to be sold or (iii) in the form of an 8-K filed with the Commission solely for the purpose of filing exhibits pursuant to Item 601 of Regulation S-K or (iv) setting forth or incorporating by reference financial statements or other information as of and for a fiscal quarter, unless, in the case of clause (iv) above, in your reasonable judgment, such financial statements or other information are of such a nature that an opinion of counsel should be furnished), the Company shall furnish or cause to be furnished promptly to you a written opinion of counsel for the Company, dated the date of the effectiveness of such amendment or the date of the filing of such supplement, in form satisfactory to you, of the same tenor as the opinion referred to in Section 5(b) but modified to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of the effectiveness of such amendment or the filing of such supplement or, in lieu of such opinion, counsel last furnishing such an opinion to you may furnish you with a letter to the effect that you may rely on such last opinion to the same extent as though it were dated the date of such letter authorizing reliance (except that statements in such last opinion will be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of the effectiveness of such amendment or the filing of such supplement).
(k) Each time that the Registration Statement or the Prospectus is amended or supplemented to include or incorporate amended or supplemental financial information, the Company shall cause its independent public accountants promptly to furnish you a letter, dated five business days after the date of the effectiveness of such amendment or the date of the filing of such supplement, in form satisfactory to you, of the same tenor as the letter referred to in Section 5(e) with such changes as may be necessary to reflect the amended and supplemental financial information included or incorporated by reference in the Registration Statement and the Prospectus, as amended or supplemented to the date of such letter; provided, however, that, if the Registration Statement or the Prospectus is amended or supplemented solely to include or incorporate by reference financial information as of and for a fiscal quarter, the Company's independent public accountants may limit the scope of such letter, which shall be satisfactory in form to you, to the unaudited financial statements, the related "Management's Discussion and Analysis of Financial Condition and Results of Operations" and any other information of an accounting, financial or statistical nature included in such amendment or supplement, unless, in your reasonable judgment, such letter should cover other information or changes in specified financial statement line items.
(l) During the period, if any, specified in any Terms Agreement, the Company shall not, without the prior consent of the Purchaser thereunder, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any debt securities issued by the Company (other than the Notes being sold pursuant to such Terms Agreement).
(m) Notwithstanding the foregoing, it is agreed that if, at any time and from time to time during the term of this Agreement, the Company should deliver to the Agent notification of its decision to suspend any sale of Notes hereunder, then during the period of any such suspension or suspensions the Company shall be relieved of its obligation to provide to the Agent the certificate, opinions and letter required pursuant to Sections 4(i), 4(j) and 4(k) hereof. However, whenever such a suspension is lifted, the Company shall be required to deliver to the Agent, prior to the resumption of any sale of Notes hereunder, the most recent certificate, opinions and letter which would have been required except for the suspension.
(n) The Company confirms as of the Execution Time and on the Effective Date, and each acceptance by the Company of an offer to purchase Notes will be deemed an affirmation, that the Company is not subject to the provisions of Section
517.075 of the Florida Securities and Investor Protection Act.
(o) During the term of this Agreement, the Company shall furnish to
the Agent (i) copies of all annual, quarterly and other reports furnished
to shareholders of the Company, (ii) copies of all annual, quarterly and
current reports (without exhibits but including documents incorporated
therein by reference) of the Company filed with the Commission under the
Exchange Act, (iii) copies of all announcements made to the general
financial community and (iv) notice of (x) any decrease in the rating or
(y) credit watch with negative implications, in either case of the Notes or
any other debt securities of the Company, by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g)
under the Act).
(p) The Company agrees that any person who has agreed to purchase and pay for any Note pursuant to a solicitation by the Agent shall have the right to refuse to purchase such Note if, subsequent to the agreement to purchase such Note, any change, condition or development specified in any of Sections 8(b)(iii), (iv) or (v) shall have occurred (with the judgment of the Agent which presented the offer to purchase such Note being substituted for any judgment of a Purchaser required therein) the effect of which is, in the judgment of the Agent which presented the offer to purchase such Note, so material and adverse as to make it impractical or inadvisable to proceed with the sale and delivery of such Note (it being understood that under no circumstance shall the Agent have any duty or obligation to the Company or to any such person to exercise the judgment permitted to be exercised under this Section 4(p)).
5. Conditions to the Obligations of the Agent. The obligations of the Agent to solicit offers to purchase the Notes shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, on the Effective Date, when any supplement to the Prospectus relating to the Notes is filed with the Commission and as of each Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) If filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Agent the opinions of LeBoeuf, Lamb, Greene & MacRae, L.L.P., counsel to the Company and Robert W. Stahman, Esq., General Counsel for the Company, dated the Execution Time substantially in the forms of Exhibits D and E hereto.
(c) The Agent shall have received from Sullivan & Cromwell, its counsel, such opinion or opinions, dated the Execution Time, with respect to the incorporation of the Company, the validity of the Indenture and the Notes, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Agent may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. In rendering their opinions, Sullivan & Cromwell may rely upon the opinion described above of Robert W. Stahman, Esq., General Counsel for the Company, as to all matters of Idaho law.
(d) The Company shall have furnished to the Agent a certificate of the Company, signed by the Chairman of the Board or the President or the principal financial or accounting officer of the Company, dated the Execution Time, to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the date hereof with the same effect as if made on the date hereof and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied as a condition to the obligation of the Agent to solicit offers to purchase the Notes;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent audited financial statements included in or incorporated by reference in the Prospectus, there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries considered as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Prospectus.
(e) At the Execution Time, Deloitte & Touche shall have furnished to the Agent a letter or letters (which may refer to letters previously delivered to the Agent), dated
as of the Execution Time to the effect set forth in Exhibit C hereto.
(f) Prior to the Execution Time, the Company shall have furnished to the Agent such further information, documents and certificates as the Agent may reasonably request.
If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Agent and its counsel, this Agreement and all obligations of the Agent hereunder may be cancelled at any time by the Agent. Notice of such cancellation shall be given to the Company in writing or by telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall be delivered at the office of LeBoeuf, Lamb, Greene & MacRae, L.L.P., counsel for the Company, on the date hereof.
6. Conditions to the Obligations of a Purchaser. The obligations of a Purchaser to purchase any Notes will be subject to the accuracy of the representations and warranties on the part of the Company herein as of the date of the related Terms Agreement and as of the Closing Date for such Notes, to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed and to the following additional conditions precedent:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) To the extent agreed to between the Company and the Purchaser in a
Terms Agreement, the Purchaser shall have received, appropriately updated,
(i) a certificate of the Company, dated as of the Closing Date, to the
effect set forth in Section 5(d) (except that references to the Prospectus
shall be to the Prospectus as supplemented as of the date of such Terms
Agreement), (ii) the opinions of LeBoeuf, Lamb, Greene & MacRae, L.L.P.,
and Robert W. Stahman, Esq., counsel for the Company, dated as of the
Closing Date, to the effect referred to in Section 5(b), (iii) the
opinion(s) of Sullivan & Cromwell, counsel for the Purchaser, dated as of
the Closing Date, to the effect referred to in Section 5(c), and (iv) the
letter of Deloitte & Touche, independent accountants for the Company, dated
as
of the Closing Date, to the effect referred to in Section 5(e).
(c) Prior to the Closing Date, the Company shall have furnished to the Purchaser such further information, certificates and documents as the Purchaser may reasonably request.
If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement and the applicable Terms Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement or such Terms Agreement and required to be delivered to the Purchaser pursuant to the terms hereof and thereof shall not be in all material respects reasonably satisfactory in form and substance to the Purchaser and its counsel, such Terms Agreement and all obligations of the Purchaser thereunder and with respect to the Notes subject thereto may be cancelled at, or at any time prior to, the respective Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company in writing or by telephone or telegraph confirmed in writing.
7. Indemnification. (a) The Company will indemnify and hold you harmless against any losses, claims, damages or liabilities, joint or several, to which you may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any preliminary prospectus, any preliminary prospectus supplement, the Registration Statement, the Prospectus, or any amendment or supplement thereto, and any other prospectus relating to the Notes, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; and will reimburse you for any legal or other expenses reasonably incurred by you in connection with investigating or defending against such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary prospectus, any preliminary prospectus supplement, the Registration Statement, the Prospectus, or such amendment or supplement and any other prospectus relating to the Notes, in reliance upon and in conformity with information furnished in writing to the Company by you or on your behalf for inclusion therein or arising out of, or based upon, statements in or omissions from Exhibit 25.1 to the Registration Statement which shall constitute the Statement of Eligibility of the Trustee on Form T-1, or amendments thereto, under the Indenture and provided
further that the Company shall not be liable to you under the indemnity agreement in this subsection on account of any such loss, claim, damage or liability of yours arising from the sale of the Notes to any person, if at or prior to the written confirmation of such sale a copy of the Prospectus (exclusive of the documents incorporated by reference therein), or of the Prospectus as then amended or supplemented (exclusive of the documents incorporated by reference therein) shall not have been given or sent to such person by you or on your behalf. This indemnity agreement shall be in addition to any liability which the Company may otherwise have.
The foregoing indemnity agreement shall, upon the same terms and conditions, extend to and inure to the benefit of each person, if any, who controls you within the meaning of the Act.
(b) You will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any preliminary prospectus, any preliminary prospectus supplement, the Registration Statement, the Prospectus, or any amendment or supplement thereto, and any other prospectus relating to the Notes, or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in a preliminary prospectus, any preliminary prospectus supplement, the Registration Statement, the Prospectus, or such amendment or supplement, and any other Prospectus relating to the Notes, in reliance upon and in conformity with information furnished in writing to the Company by you or on your behalf for inclusion therein; and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending against any such loss, claim, damage, liability or action as such expenses are incurred. This indemnity agreement shall be in addition to any liability which you may otherwise have.
The foregoing indemnity agreement shall, upon the same terms and conditions, extend to and inure to the benefit of each director of the Company, each of its officers who has signed the Registration Statement and each person, if any, who controls the Company within the meaning of the Act.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the
commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection. In case any such action shall be brought against any indemnified party, and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate in, and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 7 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and you on the other from the offering of the Notes to which such loss, claim, damage or liability (or actions in respect thereof) relates and also the relative fault of the Company on the one hand and you on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and you on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total discounts and commissions received by you. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or you on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and you agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (d), you shall not be required to contribute any amount in excess of the amount by which the total price at which the Notes sold by or through you to the public exceeds the amount of any damages which you have otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Your obligations in this subsection (d) to contribute are several in proportion to the respective purchases made by or through you to which such loss, claim, damage or liability (or action in respect thereof) relates and are not joint.
8. Termination. (a) This Agreement will continue in effect until terminated as provided in this Section 8. This Agreement may be terminated either by the Company as to the Agent or by you insofar as this Agreement relates to the Agent, by giving written notice of such termination to the Agent or the Company, as the case may be. This Agreement shall so terminate at the close of business on the first business day following the receipt of such notice by the party to whom such notice is given. In the event of such termination, no party shall have any liability to the other party hereto, except as provided in the fourth paragraph of Section 2(a), Section 4(g), Section 7 and Section 9.
(b) Each Terms Agreement shall be subject to termination in the absolute discretion of the Purchaser, by written notice given to the Company prior to delivery of any payment for any Note to be purchased thereunder, if subsequent to the agreement to purchase such Note and prior to such payment time (i) there shall have occurred any change in or affecting the business or properties of the Company and its subsidiaries taken as a whole the effect of which is, in the judgment of the Purchaser, so material and adverse as to make it impracticable or inadvisable to enforce contracts for the sale of such Note, (ii) there shall have been any decrease in the rating of any of the Company's debt securities by Moody's Investors Service Inc., Standard & Poor's Corporation or Fitch IBCA the effect of which
is, in the judgment of the Purchaser, so material and adverse as to make it
impracticable or inadvisable to enforce contracts for the sale of such Notes,
(iii) trading in securities generally on the New York Stock Exchange shall have
been suspended or limited or minimum prices shall have been established on such
Exchange, (iv) a banking moratorium shall have been declared by either Federal
or New York State authorities or (v) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war or other calamity or crisis the effect of which on financial
markets of the United States is such as to make it, in the judgment of the
Purchaser, impracticable or inadvisable to enforce contracts for the sale of
such Notes as contemplated by the Prospectus.
9. Survival of Certain Provisions. The respective representations, warranties, indemnities and other statements of the Company or its officers and of you set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of you or the Company or any of the persons referred to in Section 7 hereof, and will survive delivery of and payment for the Notes. The provisions of Sections 4(g) and 7 hereof shall survive the termination or cancellation of this Agreement. The provisions of this Agreement applicable to any purchase of a Note for which an agreement to purchase exists prior to the termination hereof shall survive any termination of this Agreement. If at the time of termination of this Agreement any Purchaser shall own any Notes with the intention of selling them, the provisions of Section 4 shall remain in effect until such Notes are sold by the Purchaser.
10. Notices. All communications hereunder will be in writing and effective only on receipt, and, if sent to you, will be mailed, delivered or telegraphed and confirmed to you, at the address specified in Schedule I hereto; or, if sent to the Company, will be mailed, delivered or telegraphed and confirmed to it at 1221 W. Idaho Street, Boise, Idaho 83702-5627, attention of the Secretary.
11. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto, their respective successors, the controlling persons referred to in Section 7 hereof and no other person will have any right or obligation hereunder.
12. Applicable Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York.
13. Counterparts. This Agreement may be executed by any one or more of the parties hereto and thereto in any number of counterparts, each of which shall be deemed to be an original,
but all such respective counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and you.
Very truly yours,
IDACORP, Inc.
By: /s/ J. LaMont Keen
_________________________
J. LaMont Keen
Senior Vice President -
Administration and Chief
Financial Officer
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The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
Goldman, Sachs & Co.
/s/ Goldman, Sachs & Co. ___________________________ |
SCHEDULE I
The Company agrees to pay the Agent a commission equal to the following percentage of the principal amount of each Note sold on an agency basis by the Agent:
Term Commission Rate
9 months to less than 12 months 0.125%
12 months to less than 18 months 0.150
18 months to less than 2 years 0.200
2 years to less than 3 years 0.250
3 years to less than 4 years 0.350
4 years to less than 5 years 0.450
5 years to less than 6 years 0.500
6 years to less than 7 years 0.550
7 years to less than 10 years 0.600
10 years to less than 15 years 0.625
15 years to less than 20 years 0.700
20 years to less than 30 years 0.750
30 years to less than 40 years 0.825
40 years or more 0.900
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Unless otherwise specified in the applicable Terms Agreement, the discount or commission payable to a Purchaser shall be determined on the basis of the commission schedule set forth above.
Notices to Goldman, Sachs & Co. shall be directed to it at 85 Broad Street, New York, NY 10004
Attention of Ben Smilchensky
29th floor
Tel: 212-902-1482
Fax: 212-902-0658
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EXHIBIT A
IDACORP, Inc.
Medium-Term Notes, Series A, Administrative Procedures
Book-Entry Form
The Medium-Term Notes, Series A, Due from Nine Months to Forty Years from Date of Issue (the "Notes") of IDACORP, Inc. (the "Company") are to be offered on a continuing basis. Goldman, Sachs & Co. as agent (the "Agent"), has agreed to use its reasonable best efforts to solicit purchases of Notes issued in fully registered form. The Agent will not be obligated to purchase Notes for its own account. The Notes are being sold pursuant to a Selling Agency Agreement between the Company and the agent named therein dated the date hereof (the "Agency Agreement"). The Notes have been registered with the Securities and Exchange Commission (the "Commission"). The Notes will be issued under the Company's Indenture for Senior Debt Securities, dated as of February 1, 2001 between the Company and Bankers Trust Company (the "Trustee"), as trustee, as supplemented, pursuant to the First Supplemental Indenture dated as of February 1, 2001 (the "Indenture").
The Agency Agreement provides that Notes may also be purchased by the Agent acting solely as principal and not as agent. In the event of any such purchase, the functions of both the Agent and the beneficial owner under the administrative procedures set forth below shall be performed by the Agent acting solely as principal, unless otherwise agreed to between the Company and the Agent acting as principal.
Each Note will be represented by a Global Security (as defined hereinafter) delivered to Bankers Trust Company ("Bankers Trust") as agent for The Depository Trust Company ("DTC"), and recorded in the book-entry system maintained by DTC (a "Book-Entry Note"). An owner of a Book-Entry Note will not be entitled to receive a certificate representing such Note.
The procedures to be followed during, and the specific terms of, the solicitation of orders by the Agent and the sale as a result thereof by the Company are explained below. Administrative and record-keeping responsibilities will be handled for the Company by its Finance Department. The Company will advise the Agent and the Trustee in writing of those persons handling administrative responsibilities with whom the Agent and the Trustee are to communicate regarding orders to purchase Notes and the details of their delivery.
Administrative procedures and specific terms of the offering are explained below. Book-Entry Notes will be issued in accordance with the administrative procedures set forth below, as adjusted in accordance with changes in DTC's operating requirements. Unless otherwise defined herein, terms defined in the Indenture and the Notes shall be used herein as therein
defined. Only fixed rate Notes may be issued. To the extent the procedures set forth below conflict with the provisions of the Notes, the Indenture, DTC's operating requirements or the Agency Agreement, the relevant provisions of the Notes, the Indenture, DTC's operating requirements and the Agency Agreement shall control.
Administrative Procedures for Book-Entry Notes
In connection with the qualification of the Book-Entry Notes for eligibility in the book-entry system maintained by DTC, Bankers Trust will perform the custodial, document control and administrative functions described below, in accordance with its respective obligations under a Letter of Representations from the Company and Bankers Trust to DTC dated as of February 1, 2001 and a Medium-Term Note Certificate Agreement between Bankers Trust and DTC, dated as of October 21, 1988, and its obligations as a participant in DTC, including DTC's Same-Day Funds Settlement system ("SDFS").
Issuance: On any date of settlement (as defined under "Settlement"
below) for one or more Book-Entry Notes, the Company will
issue a single global security in fully registered form
without coupons (a "Global Security") representing up to
$300,000,000 principal amount of all such Book-Entry Notes
that have the same Issue Date, original issue discount
provisions, if any, Interest Payment Dates, Regular Record
Dates, redemption, repayment and extension provisions, if
any, Maturity Date, and interest rate (collectively, the
"Terms"). Each Global Security will be dated and issued as
of the date of its authentication by the Trustee. Each
Global Security will bear an original issue date, which will
be (i) with respect to an original Global Security (or any
portion thereof), the original issue date specified in such
Global Security and (ii) following a consolidation of Global
Securities, with respect to the Global Security resulting
from such consolidation, the most recent Interest Payment
Date to which interest has been paid or duly provided for on
the predecessor Global Securities, regardless of the date of
authentication of such resulting Global Security. No Global
Security will represent any securities in certificated form.
Identification The Company has arranged with the CUSIP Service Bureau of
Numbers: Standard & Poor's Corporation (the "CUSIP Service Bureau")
for the reservation of a series of CUSIP numbers, which
series consists of approximately 900
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CUSIP numbers and relates to Global Securities representing
Book-Entry Notes and book-entry medium-term notes issued by
the Company with other series designations. Bankers Trust,
the Company and DTC have obtained from the CUSIP Service
Bureau a written list of such reserved CUSIP numbers.
Bankers Trust will assign CUSIP numbers to Global Securities
as described below under Settlement Procedure "B". DTC will
notify the CUSIP Service Bureau periodically of the CUSIP
numbers that Bankers Trust has assigned to Global
Securities. Bankers Trust will notify the Company at any
time when fewer than 100 of the reserved CUSIP numbers
remain unassigned to Global Securities, and, if it deems
necessary, the Company will reserve additional CUSIP numbers
for assignment to Global Securities. Upon obtaining such
additional CUSIP numbers, Bankers Trust or the Company shall
deliver a list of such additional CUSIP numbers to DTC.
Registration: Global Securities will be issued only in fully registered
form without coupons. Each Global Security will be
registered in the name of Cede & Co., as nominee for DTC, or
such other name as may be requested by DTC, on the bond
register for the Notes maintained under the Indenture. The
beneficial owner of a Book-Entry Note (or one or more
indirect participants in DTC designated by such owner) will
designate one or more participants in DTC (with respect to
such Book-Entry Note, the "Participants") to act as agent or
agents for such owner in connection with the book-entry
system maintained by DTC, and DTC will record in book-entry
form, in accordance with instructions provided by such
Participants, a credit balance with respect to such
beneficial owner in such Book-Entry Note in the account of
such Participants. The ownership interest of such beneficial
owner (or such participant) in such Book-Entry Note will be
recorded through the records of such Participants or through
the separate records of such Participants and one or more
indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will be accomplished by book
entries made by DTC and, in turn, by Participants (and in
certain cases, one or more indirect participants in DTC)
acting on behalf of beneficial transferors and transferees
of such Note.
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Exchanges: After the first Interest Payment Date on individual issues
of the Notes, Bankers Trust may deliver to DTC's
Reorganization Department, Interactive Data Control and the
CUSIP Service Bureau at any time a written notice of
consolidation (a copy of which shall be attached to the
resulting Global Security described below) specifying (i)
the CUSIP numbers of two or more outstanding Global
Securities that represent Book-Entry Notes having the same
Terms and for which interest has been paid to the same date,
(ii) a date, occurring at least thirty days after such
written notice is delivered and at least thirty days before
the next Interest Payment Date for such Book-Entry Notes, on
which such Global Securities shall be exchanged for a single
replacement Global Security and (iii) a new CUSIP number to
be assigned to such replacement Global Security. Upon
receipt of such a notice, DTC will send to its participants
(including Bankers Trust) a written reorganization notice to
the effect that such exchange will occur on such date. Prior
to the specified exchange date, Bankers Trust will deliver
to the CUSIP Service Bureau a written reorganization notice
setting forth such exchange date and such new CUSIP number
and stating that, as of such exchange date, the CUSIP
numbers of the Global Securities to be exchanged will no
longer be valid. On the specified exchange date, Bankers
Trust will exchange such Global Securities for a single
Global Security bearing the new CUSIP number and the CUSIP
numbers of the exchanged Global Securities will, in
accordance with CUSIP Service Bureau procedures, be
cancelled and not immediately reassigned.
Maturities: Each Book-Entry Note will mature on a date not less than
nine months nor more than forty years after the Issue Date
for such Note.
Denominations: Book-Entry Notes will be issued in principal amounts of
$1,000 or any amount in excess thereof that is an integral
multiple of $1,000.
Interest: General. Interest, if any, on each Book-Entry Note will
accrue from the Original Interest Accrual Date for the first
interest period or the last date to which interest has been
paid, if any, for each subsequent interest period, on the
Global Security representing such Book-Entry Note, and will
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be calculated and paid in the manner described in such
Book-Entry Note and in the Prospectus (as defined in the
Agency Agreement), as supplemented by the applicable Pricing
Supplement. Unless otherwise specified therein, each payment
of interest on a Book-Entry Note will include interest
accrued to but excluding the Interest Payment Date or to but
excluding Maturity (other than a Maturity of a Book-Entry
Note occurring on the 31st day of a month, in which case
such payment of interest will include interest accrued to
but excluding the 30th day of such month). Interest payable
at the Maturity of a Book-Entry Note will be payable to the
Person to whom the principal of such Note is payable.
Standard & Poor's Corporation will use the information
received in the pending deposit message described under
Settlement Procedure "C" below in order to include the
amount of any interest payable and certain other information
regarding the related Global Security in the appropriate
(daily or weekly) bond report published by Standard & Poor's
Corporation.
Regular Record Dates. Unless otherwise specified pursuant to
Settlement Procedure "A" below, the Regular Record Dates
with respect to the Interest Payment Dates set forth below
shall be March 15 and September 15.
Interest Payment Dates. Unless otherwise specified pursuant
to Settlement Procedure "A" below, interest payments on
Book-Entry Notes will be made semiannually on April 1 and
October 1 of each year and at Maturity; provided, however,
that if an Interest Payment Date for a Book-Entry Note is
not a Business Day, the payment due on such day shall be
made on the next succeeding Business Day and no interest
shall accrue on such payment for the period from and after
such Interest Payment Date; provided further, that in the
case of a Book-Entry Note issued between a Regular Record
Date and an Interest Payment Date, the first interest
payment will be made on the Interest Payment Date following
the next succeeding Regular Record Date.
Calculation of Interest on Book-Entry Notes (including interest for partial
Interest: periods) will be calculated on the basis of a 360-day year
of twelve 30-day months.
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Payment of Payment of Interest Only. Promptly after each Regular Record
Principal and Date, Bankers Trust will deliver to the Company and DTC's
Interest: Dividend Department a written notice setting forth, by CUSIP
number, the amount of interest to be paid on each Global
Security on the following Interest Payment Date (other than
an Interest Payment Date coinciding with Maturity) and the
total of such amounts. DTC will confirm the amount payable
on each Global Security on such Interest Payment Date by
reference to the appropriate (daily or weekly) bond reports
published by Standard & Poor's Corporation. The Company will
pay to Bankers Trust, as paying agent, the total amount of
interest due on such Interest Payment Date (other than at
Maturity), and Bankers Trust will pay such amount to DTC, at
the times and in the manner set forth below under "Manner of
Payment".
Payments at Maturity. On or about the first Business Day of
each month, Bankers Trust will deliver to the Company and
DTC a written list of principal and interest to be paid on
each Global Security maturing in the following month.
Bankers Trust, the Company and DTC will confirm the amounts
of such principal and interest payments with respect to each
such Global Security on or about the fifth Business Day
preceding the Maturity of such Global Security. On or before
Maturity, the Company will pay to Bankers Trust, as paying
agent, the principal amount of such Global Security,
together with interest due at such Maturity. Bankers Trust
will pay such amount to DTC at the times and in the manner
set forth below under "Manner of Payment". If any maturity
of a Global Security representing Book-Entry Notes is not a
Business Day, the payment due on such day shall be made on
the next succeeding Business Day and no interest shall
accrue on such payment for the period from and after such
Maturity. Promptly after payment to DTC of the principal and
interest due at Maturity of such Global Security, the
Trustee will cancel such Global Security in accordance with
the Indenture and so advise the Company. On the first
Business Day of each month, Bankers Trust will deliver to
the Company a written statement indicating the total
principal amount of Outstanding Global Securities as of the
immediately preceding Business Day. If the Maturity of a
Book-Entry Note is not a Business Day, the payment due on
such day
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shall be made on the next succeeding Business Day and no interest shall accrue on such payment for the period from and after such Maturity.
Manner of Payment. The total amount of any principal and interest due on Global Securities on any Interest Payment Date or at Maturity shall be paid by the Company to Bankers Trust in immediately available funds on such date. The Company will make such payment on such Global Securities by instructing Bankers Trust to withdraw funds from an account (Account # 381544) maintained by the Company at Bankers Trust or by wire transfer to Bankers Trust. The Company will confirm any such instructions in writing to Bankers Trust. Prior to 10 A.M. (New York City time) on the date of Maturity or as soon as possible thereafter, Bankers Trust will pay by separate wire transfer (using Fedwire message entry instructions in a form previously specified by DTC) to an account at the Federal Reserve Bank of New York previously specified by DTC, in funds available for immediate use by DTC, each payment of principal (together with interest thereon) due on a Global Security on such date. On each Interest Payment Date (other than at Maturity), interest payments shall be made to DTC, in funds available for immediate use by DTC, in accordance with existing arrangements between Bankers Trust and DTC. On each such date, DTC will pay, in accordance with its SDFS operating procedures then in effect, such amounts in funds available for immediate use to the respective Participants in whose names the Book-Entry Notes represented by such Global Securities are recorded in the book-entry system maintained by DTC. Neither the Company nor Bankers Trust shall have any direct responsibility or liability for the payment by DTC to such Participants of the principal of and interest on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes required under applicable law to be withheld from any interest payment on a Book-Entry Note will be determined and withheld by the Participant, indirect participant in DTC or other Person responsible for forwarding pay ments and materials directly to the beneficial owner of such Note.
Procedures upon Company Notice to Trustee Regarding Exercise of Optional
Company's Redemption. At least 35 days prior to the date on which it
Exercise of intends to redeem a Book-Entry Note, the Company will notify
Optional the Trustee that it is exercising such option with respect
Redemption: to such Book-Entry Note on such date.
Trustee Notice to DTC Regarding Company's Exercise of
Optional Redemption. After receipt of notice that the
Company is exercising its option to redeem a Book-Entry
Note, the Trustee will, at least 30 days before the
redemption date for such Book-Entry Note, deliver to DTC a
notice identifying such Book-Entry Note by CUSIP number and
informing DTC of the Company's exercise of such option with
respect to such Book-Entry Note.
Deposit of Redemption Price. On or before any redemption
date, the Company shall deposit with such Trustee an amount
of money sufficient to pay the redemption price, plus
interest accrued to such redemption date, for all the
Book-Entry Notes or portions thereof which are to be repaid
on such redemption date. Such Trustee will use such money to
repay such Book-Entry Notes pursuant to the terms set forth
in such Notes.
Procedure for The Company and the Agent will discuss from time to time the
Rate Setting aggregate principal amount of, the issuance price of, and
and Posting: the interest rates to be borne by, Book-Entry Notes that may
be sold as a result of the solicitation of orders by the
Agent. If the Company decides to set prices of, and rates
borne by, any Book-Entry Notes in respect of which the Agent
is to solicit orders (the setting of such prices and rates
to be referred to herein as "posting") or if the Company
decides to change prices or rates previously posted by it,
it will promptly advise the Agent of the prices and rates to
be posted.
Acceptance and Unless otherwise instructed by the Company, the Agent will
Rejection of advise the Company promptly by telephone of all orders to
Orders: purchase Book-Entry Notes received by the Agent, other than
those rejected by it in whole or in part in the reasonable
exercise of its discretion. Unless otherwise agreed by the
Company and the Agent, the Company has the sole right to
accept orders to purchase Book-Entry Notes
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and may reject any such orders in whole or in part.
Preparations of If any order to purchase a Book-Entry Note is accepted by or
Pricing on behalf of the Company, the Company will prepare a pricing
Supplement: supplement (a "Pricing Supplement") reflecting the
applicable interest rates and other terms of such Book-Entry
Note and will arrange to have such Pricing Supplement filed
with the Commission in accordance with the applicable
paragraph of Rule 424(b) under the Act and will supply at
least ten copies thereof (and additional copies if
requested) to the Agent which presented the order (the
"Presenting Agent"). The Presenting Agent will cause a
Prospectus and Pricing Supplement to be delivered to the
purchaser of such Book-Entry Note.
In each instance that a Pricing Supplement is prepared, the
Presenting Agent will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated Pricing
Supplements (other than those retained for files) will be
destroyed.
Suspension of The Company reserves the right, in its sole discretion, to
Solicitation; instruct the Agent to suspend at any time, for any period of
Amendment or time or permanently, the solicitation of orders to purchase
Supplement: Book-Entry Notes. Upon receipt of such instructions, the
Agent will forthwith suspend solicitation until such time as
the Company has advised it that such solicitation may be
resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any orders
outstanding for settlement, the Company will promptly advise
the Agent and Bankers Trust whether such orders may be
settled and whether copies of the Prospectus as in effect at
the time of the suspension, together with the appropriate
Pricing Supplement, may be delivered in connection with the
settlement of such orders. The Company will have the sole
responsibility for such decision and for any arrangements
that may be made in the event that the Company determines
that such orders may not be settled or that copies of such
Prospectus may not be so delivered.
If the Company decides to amend or supplement the
Registration Statement (as defined in the
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Agency Agreement) or the Prospectus, it will promptly advise
the Agent and furnish the Agent with the proposed amendment
or supplement and with such certificates and opinions as are
required, all to the extent required by and in accordance
with the terms of the Agency Agreement. Subject to the
provisions of the Agency Agreement, the Company may file
with the Commission any such supplement to the Prospectus
relating to the Notes. The Company will provide the Agent
and Bankers Trust with copies of any such supplement, and
confirm to the Agent that such supplement has been filed
with the Commission pursuant to the applicable paragraph of
Rule 424(b).
Procedures For When the Company has determined to change the interest rates
Rate Changes: of Book-Entry Notes being offered, it will promptly advise
the Agent and the Agent will forthwith suspend solicitation
of orders. The Agent will telephone the Company with
recommendations as to the changed interest rates. At such
time as the Company has advised the Agent of the new
interest rates, the Agent may resume solicitation of orders.
Until such time only "indications of interest" may be
recorded.
Delivery of A copy of the Prospectus (including the Prospectus
Prospectus: Supplement) and a Pricing Supplement relating to a
Book-Entry Note must accompany or precede the earliest of
any written offer of such Book-Entry Note, confirmation of
the purchase of such Book-Entry Note and payment for such
Book-Entry Note by its purchaser. If notice of a change in
the terms of the Book-Entry Notes is received by the Agent
between the time an order for a Book-Entry Note is placed
and the time written confirmation thereof is sent by the
Presenting Agent to a customer or his agent, such
confirmation shall be accompanied by a Prospectus and
Pricing Supplement setting forth the terms in effect when
the order was placed. Subject to "Suspension of
Solicitation; Amendment or Supplement" above, the Presenting
Agent will deliver a Prospectus and Pricing Supplement as
herein described with respect to each Book-Entry Note sold
by it. The Company will make such delivery if such
Book-Entry Note is sold directly by the Company to a
purchaser (other than the Agent).
Confirmation: For each order to purchase a Book-Entry Note
|
solicited by the Agent and accepted by or on behalf of the
Company, the Presenting Agent will issue a confirmation to
the purchaser, with a copy to the Company, setting forth the
details set forth above and delivery and payment
instructions.
Settlement: The receipt by the Company of immediately available funds in
payment for a Book-Entry Note and the authentication and
issuance of the Global Security representing such Book-
Entry Note shall constitute "settlement" with respect to
such Book-Entry Note. All orders accepted by the Company
will be settled on the third Business Day following the date
of sale of such Book-Entry Note pursuant to the timetable
for settlement set forth below unless the Company and the
purchaser agree to settlement on another day which shall be
no earlier than the next Business Day following the date of
sale.
Settlement Settlement Procedures with regard to each Book-Entry Note
Procedures: sold by the Company through the Agent, as agent, shall be as
follows:
A. The Presenting Agent will advise the Company by
telephone (confirmed in writing) of the following
settlement information:
1. Exact name of the purchaser.
2. Principal amount.
3. Issue Date.
4. Original Interest Accrual Date.
5. Settlement date.
6. Interest rate.
7. Interest Payment Dates, if other than April 1 and
October 1.
8. Regular Record Dates, if other than March 15 and
September 15.
9. Redemption provisions, if any.
10. Maturity date.
11. Purchase Price.
12. Presenting Agent's commission,
|
determined as provided in Section 2 of the Agency Agreement and certification that the purchasers were solicited solely by the Agent.
13. Net proceeds to the Company.
B. Bankers Trust will assign a CUSIP number to the Global Security representing such Book-Entry Note and the Company will advise Bankers Trust by telephone (confirmed in writing at any time on the same date) or electronic transmission of the information set forth in Settlement Procedure "A" above, such CUSIP number and the name of the Presenting Agent. Bankers Trust will also notify the Presenting Agent by telephone of such CUSIP number as soon as practicable. Each such communication by the Company shall constitute a representation and warranty by the Company to Bankers Trust and the Presenting Agent that (i) such Note is then, and at the time of issuance and sale thereof will be, duly authorized for issuance and sale by the Company, (ii) such Note, and the Global Security representing such Note, will conform with the terms of the Indenture for such Note, and (iii) upon authentication and delivery of such Global Security, the aggregate initial offering price of all Notes issued under the Indenture will not exceed $300,000,000 (except for Book-Entry Notes represented by Global Securities authenticated and delivered in exchange for or in lieu of Global Securities pursuant to the Indenture).
C. Bankers Trust will enter a pending deposit message through DTC's Participant Terminal System providing the following settlement information to DTC (which shall route such information to Standard & Poor's Corporation) and the Presenting Agent:
1. The information set forth in Settlement Procedure "A".
2. Initial Interest Payment Date for such Book-Entry Note, number of days by which such date succeeds the related Regular Record Date and amount of interest payable on such Interest Payment Date.
3. CUSIP number of the Global Security representing such Book-Entry Note.
4. Whether such Global Security will represent any other Book-Entry Note (to the extent known at such time).
D. To the extent the Company has not already done so, the Company will deliver to the Trustee a Global Security in a form that has been approved by the Company, the Agent and the Trustee.
E. The Trustee will complete such Book-Entry Note, stamp the appropriate legend, as instructed by DTC, if not already set forth thereon, and authenticate the Global Security representing such Book-Entry Note.
F. DTC will credit such Book-Entry Note to Bankers Trust's participant account at DTC.
G. Bankers Trust will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC to
(i) debit such Book-Entry Note to Bankers Trust's
participant account and credit such Book-Entry Note to
the Presenting Agent's participant account and (ii)
debit the Presenting Agent's settlement account and
credit Bankers Trust's settlement account for an amount
equal to the price of such Book-Entry Note less the
Presenting Agent's commission. The entry of such a
deliver order shall constitute a representation and
warranty by Bankers Trust to DTC that (i) the Global
Security representing such Book-Entry Note has been
issued and authenticated and (ii) Bankers Trust is
holding such Global Security pursuant to the Medium-
Term Note Certificate Agreement between Bankers Trust
and DTC.
H. The Presenting Agent will enter an SDFS deliver order through DTC's Participant Terminal System instructing DTC (i) to debit such Book-Entry Note to the Presenting Agent's participant account and credit such Book-Entry Note to the participant accounts of the Participants with respect to such Book-Entry Note and (ii) to debit the settlement accounts of
such Participants and credit the settlement account of
the Presenting Agent for an amount equal to the price
of such Book-Entry Note.
I. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "G" and "H"
will be settled in accordance with SDFS operating
procedures in effect on the settlement date.
J. Bankers Trust will, upon receipt of funds from the
Presenting Agent in accordance with Settlement
Procedure "G", credit to an account of the Company
(Account # 381544) maintained at Bankers Trust funds
available for immediate use in the amount transferred
to Bankers Trust in accordance with Settlement
Procedure "G".
K. The Presenting Agent will confirm the purchase of such
Book-Entry Note to the purchaser either by transmitting
to the Participants with respect to such Book-Entry
Note a confirmation order or orders through DTC's
institutional delivery system or by mailing a written
confirmation to such purchaser.
Settlement For orders of Book-Entry Notes solicited by the Agent and
Procedures accepted by the Company for settlement on the first Business
Timetable: Day after the sale date, Settlement Procedures "A" through
"K" set forth above shall be completed as soon as possible
but not later than the respective times (New York City time)
set forth below:
Settlement
Procedure Time
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 3:00 P.M. on the day before settlement
E 9:00 A.M. on settlement date
F 10:00 A.M. on settlement date
G-H 2:00 P.M. on settlement date
I 4:45 P.M. on settlement date
J-K 5:00 P.M. on settlement date
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If a sale is to be settled more than one Business Day after the sale date, Settlement
Procedures "A", "B" and "C" shall be completed as soon as practicable but no later than 11:00 A.M. and 12:00 Noon on the first Business Day after the sale date and no later than 2:00 P.M. on the Business Day before the settlement date, respectively. Settlement Procedure "I" is subject to extension in accordance with any extension of Fedwire closing deadlines and in the other events specified in SDFS operating procedures in effect on the settlement date.
If settlement of a Book-Entry Note is rescheduled or cancelled, Bankers Trust will deliver to DTC, through DTC's Participant Terminal System, a cancellation message to such effect by no later than 2:00 P.M. on the Business Day
immediately preceding the scheduled settlement date.
Failure to If Bankers Trust fails to enter an SDFS deliver order with
Settle: respect to a Book-Entry Note pursuant to Settlement
Procedure "G", Bankers Trust may deliver to DTC, through
DTC's Participant Terminal System, as soon as practicable, a
withdrawal message instructing DTC to debit such Book-Entry
Note to Bankers Trust's participant account. DTC will
process the withdrawal message, provided that Bankers
Trust's participant account contains a principal amount of
the Global Security representing such Book-Entry Note that
is at least equal to the principal amount to be debited. If
a withdrawal message is processed with respect to all the
Book-Entry Notes represented by a Global Security, the
Trustee will cancel such Global Security in accordance with
the Indenture and so advise the Company and will make
appropriate entries in its records. The CUSIP number
assigned to such Global Security shall, in accordance with
CUSIP Service Bureau procedures, be canceled and not
immediately reassigned. If a withdrawal message is processed
with respect to one or more, but not all, of the Book-Entry
Notes represented by a Global Security, Bankers Trust will
exchange such Book-Entry Note for two Global Securities, one
of which shall represent such Book-Entry Notes and shall be
cancelled immediately after issuance and the other of which
shall represent the other Book-Entry Notes previously
represented by the surrendered Global Security and shall
bear the CUSIP number of the surrendered Global Security.
|
If the purchase price for any Book-Entry Note is not timely
paid to the Participants with respect to such Note by the
beneficial purchaser thereof (or a Person, including an
indirect participant in DTC, acting on behalf of such
purchaser), such Participants and, in turn, the Presenting
Agent may enter SDFS deliver orders through DTC's
Participant Terminal System reversing the orders entered
pursuant to Settlement Procedures "H" and "G", respectively.
The Presenting Agent will notify the Company by telephone of
such failure. Thereafter, Bankers Trust will deliver the
withdrawal message and take the related actions described in
the preceding paragraph.
Notwithstanding the foregoing, upon any failure to settle
with respect to a Book-Entry Note, DTC may take any actions
in accordance with its SDFS operating procedures then in
effect. In the event of a failure to settle with respect to
one or more, but not all, of the Book-Entry Notes to have
been represented by a Global Security, Bankers Trust will
provide, in accordance with Settlement Procedure "E", for
the authentication and issuance of a Global Security
representing the other Book-Entry Notes to have been
represented by such Global Security and will make
appropriate entries in its records.
Bankers Trust Nothing herein shall be deemed to require Bankers Trust to
Not to Risk risk or expend its own funds in connection with any payment
Funds: to the Company, DTC, the Agent or the purchaser, it being
understood by all parties that payment made by Bankers Trust
to the Company, DTC, the Agent or the purchaser shall be
made only to the extent that funds are provided to Bankers
Trust for such purpose.
Authenticity of The Company will cause Bankers Trust to furnish the Agent
Signatures: from time to time with the specimen signatures of each of
Bankers Trust's officers, employees or agents who have been
authorized by Bankers Trust to authenticate Book-Entry
Notes, but the Agent will have no obligation or liability to
the Company or Bankers Trust in respect of the authenticity
of the signature of any officer, employee or agent of the
Company or Bankers Trust on any Book-Entry Note.
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Advertising The Company will determine with the Agent the amount of
Costs: advertising that may be appropriate in soliciting offers to
purchase the Book-Entry Notes. Advertising expenses will be
paid by the Company.
Periodic Periodically, Bankers Trust will send to the Company a
Statements from statement setting forth the principal amount of Book-Entry
Bankers Trust: Notes outstanding as of that date and setting forth a brief
description of any sales of Book-Entry Notes of which the
Company has advised Bankers Trust but which have not yet
been settled.
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EXHIBIT B
IDACORP, Inc.
Medium-Term Notes, Series A
Due from Nine Months
to Forty Years from Date of Issue
TERMS AGREEMENT
IDACORP, Inc.
1221 W. Idaho St.
Boise, Idaho 83702-5627
Attention:
Subject in all respects to the terms and conditions of the Selling Agency Agreement (the "Agreement") dated February 28, 2001, between [Agent], and you, the undersigned agrees to purchase the following Notes of IDACORP, Inc.:
[Add additional terms as may be needed to identify Notes.]
Aggregate Principal Amount: $
Issue Date:
Original Interest Accrual Date:
Interest Rate:
Maturity Date:
Interest Payment Dates:
Regular Record Dates:
Discount or Commission: % of Principal Amount
Purchase Price: % of Principal Amount [plus
accrued interest from
, 20 ]
Settlement Date:
Price to Public:
Purchase Date and Time:
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Place for Delivery of Notes
and Payment Therefor:
Method of Payment: [same day funds]
Redemption Provisions, if any:
Modification, if any, in the requirements to deliver the documents specified in
Section 6(b) of the Agreement:
Period during which additional Notes may not be sold pursuant to Section 4(1) of the Agreement:
Syndicate Provisions:
(Set forth any provisions relating
to underwriters' default and step-
up of amounts to be purchased.)
This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
[Purchaser]
By:____________________
Accepted:
IDACORP, Inc.
By:________________________
Title:
EXHIBIT C
Pursuant to Section 5(e) of the Selling Agency Agreement, the accountants shall furnish a letter to the Agent to the effect that:
(i) They are independent certified public accountants with respect to the Company and its subsidiaries within the meaning of the Act and the applicable rules and regulations thereunder adopted by the SEC;
(ii) In their opinion, the consolidated financial statements and consolidated financial statement schedules audited by them and included or incorporated by reference in the Registration Statement or the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act or the Exchange Act, as applicable, and the related rules and regulations adopted by the SEC, and, if applicable, they have performed the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in SAS No. 71, Interim Financial Information, on the consolidated interim financial statements for the periods specified in such letter, as indicated in their reports thereon, copies of which have been furnished to the Agent;
(iii) The unaudited selected financial information with respect to the consolidated results of operations and financial position of the Company for the five most recent fiscal years included or incorporated by reference in the Prospectus and included or incorporated by reference in item 6 of the Company's Annual Report on Form 10-K for the most recent fiscal year agrees with the corresponding amounts (after restatement where applicable) in the audited consolidated financial statements for the five such fiscal years which were included or incorporated by reference in the Company's Annual Reports on Form 10-K for such fiscal years;
(iv) On the basis of limited procedures, not constituting an audit in accordance with generally accepted auditing standards, consisting of a reading of the unaudited financial statements and other information referred to below, a reading of the latest available interim financial statements of the Company and its subsidiaries, inspection of the minute books of the Company and its subsidiaries since the date of the latest audited financial statements included or incorporated by reference in the Prospectus, inquiries of officials of the Company and its subsidiaries responsible for financial and accounting matters and such other inquiries and procedures as may be specified in such letter, nothing has come to their attention that caused them to believe that:
(A) the unaudited consolidated statements of income, consolidated statements of comprehensive income, consolidated balance sheets, consolidated statements of cash flows and consolidated statements of capitalization included or incorporated by reference in the Company's Quarterly Reports on Form 10-Q incorporated by reference in the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act as it applies to Form 10-Q and the related rules and regulations adopted by the SEC;
(B) any material modifications should be made to the unaudited consolidated financial statements described in (A), included or incorporated by reference in the Prospectus, for them to be in conformity with generally accepted accounting principles;
(C) as of a specified date not more than five days prior to the date of such letter, there have been any changes in the consolidated capital stock (except for shares of Idaho Power Company 4% preferred stock) or any increase in the consolidated long-term debt of the Company and its subsidiaries, or any decreases in consolidated net assets or other items specified by the Agent, in each case as compared with amounts shown in the latest balance sheet included or incorporated by reference in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur, for declarations of dividends, or which are described in such letter; and
(D) for the period from the date of the latest financial statements included or incorporated by reference in the Prospectus to the specified date referred to in Clause (C) there were any decreases in consolidated revenues, net income or earnings on common stock or other items specified by the Agent, or any increases in any items specified by the Agent, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Agent, except in each case for increases or decreases which the Prospectus discloses have occurred or may occur, for declarations of dividends, or which are described in such letter; and
(v) In addition to the audit referred to in their report(s) included or incorporated by reference in the Prospectus and the limited procedures, inspection of minute books, inquiries and other procedures referred to in paragraphs (ii) and (iv) above, they have carried out certain specified procedures, not constituting an audit in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Agent which are derived from the general accounting records of the Company and
its subsidiaries, which appear in the Prospectus (excluding documents incorporated by reference), or in Part II of, or in exhibits and schedules to, the Registration Statement specified by the Agent or in documents incorporated by reference in the Prospectus specified by the Agent, and have compared certain of such amounts, percentages and financial information with the accounting records of the Company and its subsidiaries and have found them to be in agreement, except as described in such letter.
All references in this Exhibit C to the Prospectus shall be deemed to refer to the Prospectus (including the documents incorporated by reference therein) as amended or supplemented (including the documents incorporated by reference therein) in relation to the Notes for purposes of the letter delivered at the Closing Date for such Notes.
EXHIBIT D
February 28, 2001
To the Agent referred to in the Selling Agency Agreement Relating to:
$300,000,000 Principal Amount of Medium-Term Notes, Series A, of IDACORP, Inc.
Ladies and Gentlemen:
With reference to the issuance and sale by IDACORP, Inc., an Idaho corporation (the "Company"), pursuant to the Selling Agency Agreement, dated February 28, 2001 (the "Agency Agreement"), between the Company and you of up to $300,000,000 aggregate principal amount of Medium-Term Notes, Series A (the "Notes"), to be issued under the Company's Indenture for Senior Debt Securities, dated as of February 1, 2001, as supplemented by the First Supplemental Indenture, dated as of February 1, 2001, (said Indenture for Senior Debt Securities, as so supplemented, being hereinafter called the "Indenture"), we advise you that we are counsel to the Company and in that capacity have reviewed or participated in the preparation of (1) the Indenture; (2) the registration statement (File No. 333-64737) and amendment no. 1 thereto relating to the Notes filed with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Act") (said registration statement, as amended to the date of effectiveness, including the documents incorporated by reference therein as of such date pursuant to Item 12 of Form S-3 (the "Incorporated Documents") being hereinafter called the "Registration Statement"); (3) the prospectus, dated November 6, 1998 (the "Base Prospectus"), as supplemented by a prospectus supplement relating to the Notes, dated February 28, 2001 (the "Prospectus Supplement") (such prospectus, as so supplemented, including the incorporated documents, being hereinafter referred to as the "Prospectus"); and (4) the Agency Agreement. Terms not otherwise defined herein shall have the meanings given to them in the Agency Agreement.
We have reviewed such corporate records, certificates and other documents as we have considered necessary or appropriate for purposes of this opinion.
Upon the basis of such review, we are of the opinion that:
(1) The Indenture has been duly authorized, executed and delivered by the Company, is a legal, valid and binding instrument enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization or other laws of general applicability relating to or affecting creditors' rights, and to general principles of equity (whether considered in a proceeding
at law or in equity) and has been qualified under the Trust Indenture Act of 1939, as amended.
(2) The Notes, when issued and paid for as contemplated in the Agency Agreement, will be legal, valid and binding obligations of the Company enforceable in accordance with their terms and are entitled to the benefits afforded by the Indenture, subject to bankruptcy, insolvency, reorganization or other laws of general applicability relating to or affecting creditors' rights and to general principles of equity (whether considered in a proceeding at law or in equity).
(3) The Agency Agreement has been duly authorized, executed and delivered by the Company.
(4) The Registration Statement, as of its effective date, and the Base Prospectus, as supplemented by the Prospectus Supplement, as of the date of the Prospectus Supplement, complied as to form in all material respects with the applicable requirements of the Act and the Securities Exchange Act of 1934, as amended, and the applicable instructions, rules and regulations of the Commission thereunder; the Registration Statement is effective under the Act; and, to the best of our knowledge, no proceedings for a stop order with respect thereto are pending or threatened under Section 8(d) of the Act.
(5) All regulatory consents and approvals required to be obtained by the Company from any governmental body or bodies in connection with the Company's issuance and sale of the Notes in the manner set forth in the Agency Agreement have been obtained and are in effect, it being understood that we express no opinion as to any consents or approvals required to be obtained, or other actions required to be taken, under the securities or blue sky laws of any jurisdiction.
In passing upon the form of the Registration Statement and the form of the Base Prospectus, as supplemented by the Prospectus Supplement, we necessarily assume the correctness and completeness of the representations made to us and the statements made to us or included in the Registration Statement and the Base Prospectus, as supplemented by the Prospectus Supplement, by the Company and take no responsibility therefor. In the course of the preparation by the Company of the Registration Statement and the Base Prospectus, we had conferences with certain of its officers and representatives, with other counsel for the Company and with Deloitte & Touche LLP, the independent certified public accountants who examined certain of the financial statements included or incorporated by reference in the Registration Statement. Our examination of the Registration Statement and the Base Prospectus, as supplemented by the Prospectus Supplement, and our discussions in the above-mentioned conferences did not disclose to us any information which gives us reason to believe that, at the effective date, the Registration Statement 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 Base
Prospectus, as supplemented by the Prospectus Supplement, as of the date of the Prospectus Supplement, contained any untrue statement of a material fact or omitted 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. Also, nothing that has come to our attention in the course of our examination of the Registration Statement or the Prospectus or in our discussions in the above-mentioned conferences that has caused us to believe that the Prospectus, as of the date and time of the delivery of this letter, contained any untrue statement of a material fact or omitted 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. We do not express any opinion or belief as to the financial statements or other financial data contained or incorporated by reference in the Registration Statement or the Prospectus.
We express no opinion as to the law of any jurisdiction other than the law of the State of New York and the federal laws of the United States. As to all matters of Idaho law and as to the matters set forth in paragraph 5 above, we have relied upon an opinion of even date herewith addressed to you by Robert W. Stahman, Esq., General Counsel for the Company.
Very truly yours,
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
EXHIBIT E
February 28, 2001
To the Agent referred to in the Selling Agency Agreement Relating to:
$300,000,000 Principal Amount of Medium-Term Notes, Series A, of IDACORP, Inc.
Ladies and Gentlemen:
In connection with the issuance and sale pursuant to the Selling Agency Agreement, dated February 28, 2001 (the "Agency Agreement"), between IDACORP, Inc., an Idaho corporation (the "Company"), and you of up to $300,000,000 aggregate principal amount of the Company's Medium-Term Notes, Series A (the "Notes"), to be issued under an Indenture for Senior Debt Securities, dated as of February 1, 2001, between the Company and Bankers Trust Company (the "Trustee"), as supplemented by the First Supplemental Indenture, dated as of February 1, 2001, between the Company and the Trustee (collectively, the "Indenture"), I am the Company's General Counsel, and I am familiar with its legal status and that of its property. I am also familiar with the registration statement (File No. 333-64737) and amendment no. 1 thereto filed under the Securities Act of 1933, as amended (the "Act"), with the Securities and Exchange Commission (such registration statement as amended to the date of effectiveness, including the documents incorporated by reference therein as of such date pursuant to Item 12 of Form S-3 (the "Incorporated Documents") being hereinafter referred to as the "Registration Statement"), the prospectus, dated November 6, 1998 (the "Base Prospectus"), as supplemented by a prospectus supplement relating to the Notes, dated February 28, 2001 (the "Prospectus Supplement") (such prospectus, as so supplemented, including the incorporated documents, being hereinafter referred to as the "Prospectus") and the Agency Agreement. Terms not otherwise defined herein shall have the meanings given to them in the Agency Agreement.
I have made such examination of corporate and other records and documents and of matters of law as in my opinion are necessary or desirable for the purpose of this opinion, and based thereon, I am of the opinion that:
(1) The Company has been duly incorporated and is validly existing and in good standing under the laws of the State of Idaho, and has full power and authority to own its properties and conduct its business in all material respects as described in the Prospectus as amended or supplemented;
(2) To the best of my knowledge and other than as set forth in the Prospectus as amended or supplemented, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which would individually or in the aggregate have a material adverse effect on the consolidated financial position or results of operations of the Company and its subsidiaries considered as a whole; and, to the best of my knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(3) The Agency Agreement has been duly authorized, executed and delivered by the Company;
(4) The Notes, when issued and paid for as contemplated in the Agency Agreement, will be legal, valid and binding obligations of the Company, enforceable in accordance with their terms and are entitled to the benefits afforded by the Indenture, subject to bankruptcy, insolvency, reorganization or other laws of general applicability relating to or affecting creditors' rights and to general principles of equity (whether considered in a proceeding at law or in equity); and the Notes and the Indenture conform to the descriptions thereof in the Prospectus as amended or supplemented;
(5) The Indenture has been duly authorized, executed and delivered by the Company and is a legal, valid and binding instrument, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization or other laws of general applicability relating to or affecting creditors' rights and to general principles of equity (whether considered in a proceeding at law or in equity).
(6) The issue and sale of the Notes and the compliance by the Company with all of the provisions of the Notes, the Indenture and the Agency Agreement with respect to the Notes and the consummation of the transactions therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions result in any violation of the provisions of the Articles of Incorporation, as amended or By-laws, as amended, of the Company or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its properties;
(7) The Registration Statement, as of its effective date, and the Base Prospectus, as supplemented by the Prospectus Supplement, as of the date of the Prospectus Supplement, complied as to form in all material respects with the requirements of the Act and the Securities Exchange Act of 1934, as amended, and the applicable instructions, rules and
regulations of the Securities and Exchange Commission thereunder; the Registration Statement is effective under the Act; and, to the best of my knowledge, no proceedings for a stop order with respect thereto are pending or threatened under Section 8(d) of the Act; and
(8) All regulatory consents and approvals required to be obtained by the Company from any governmental body or bodies in connection with the Company's issuance and sale of the Notes in the manner set forth in the Agency Agreement have been obtained and are in effect, it being understood that I express no opinion as to any consents or approvals required to be obtained, or other actions required to be taken, under state securities or Blue Sky laws of any jurisdiction.
I have no reason to believe that the Registration Statement, at the effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Base Prospectus, as supplemented by the Prospectus Supplement, as of the date of the Prospectus Supplement, contained any untrue statement of a material fact or omitted 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; it being understood that I express no opinion or belief as to the financial statements or other financial data contained or incorporated by reference in the Registration Statement or the Prospectus. Also, nothing that has come to my attention in the course of my examination of the Registration Statement or the Prospectus that has caused me to believe that the Prospectus, as of the date and time of the delivery of this letter, contained any untrue statement of a material fact or omitted 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.
Very truly yours,
Robert W. Stahman
IDACORP, INC.
TO
BANKERS TRUST COMPANY,
Trustee
INDENTURE
Dated as of February 1, 2001
SENIOR DEBT SECURITIES
IDACORP, INC.
*Reconciliation and tie between Trust Indenture Act of 1939, as amended by the Trust Reform Act of 1990, and Indenture, dated as of February 1, 2001.
Section of the Trust Indenture Act of 1939 Section of Indenture --------------------------- -------------------- 310(a)(1), (2) and (5).............................. 7.9 310(a)(3) and (4)................................... Inapplicable 310(b).............................................. 7.8 and 7.10(a)and(b) 311(a).............................................. 7.13(a) and (c)(1) and (2) 311(b).............................................. 7.13(b) 312(a).............................................. 5.1 and 5.2(a) 312(b).............................................. 5.2(b) 312(c).............................................. 5.2(c) 313(a).............................................. 5.4(a) 313(b)(1)........................................... Inapplicable 313(b)(2)........................................... 5.4(b) 313(c).............................................. 5.4(c) 313(d).............................................. 5.4(d) 314(a).............................................. 4.6 and 5.3 314(b).............................................. Inapplicable 314(c)(1) and (2)................................... 13.6 314(c)(3)........................................... Inapplicable 314(d).............................................. Inapplicable 314(e).............................................. 13.6 315(a), (c) and (d)................................. 7.1 315(b).............................................. 6.11 315(e).............................................. 6.12 316(a)(1)........................................... 6.9 316(a)(2)........................................... Inapplicable 316(a) (last sentence).............................. 8.4 316(b).............................................. 6.7 316(c).............................................. 8.1 317(a).............................................. 6.2 317(b).............................................. 4.4 318(a).............................................. 13.9 -------- |
* This reconciliation and tie shall not, for any purpose, be deemed to be part of the Indenture or to have any bearing upon the interpretation of any of its terms or provisions.
TABLE OF CONTENTS*
PAGE
Parties.......................................................................1
Recitals......................................................................1
ARTICLE I.
DEFINITIONS
SECTION 1.1. Certain Terms Defined...........................................1
Authenticating Agent.........................................2
Authorized Newspaper.........................................2
Board of Directors...........................................2
Board Resolution.............................................2
Business Day.................................................2
Commission...................................................2
Company......................................................2
Corporate Trust Office.......................................2
Depository...................................................3
Dollar ($)...................................................3
Event of Default.............................................3
Generally Accepted Accounting Principles.....................3
Global Security..............................................3
Government Obligations.......................................3
Holder, Registered Holder and Securityholder.................4
include......................................................4
Indenture....................................................4
interest.....................................................4
Interest Payment Date........................................4
Issuer or Company............................................4
Issuer Order and Issuer Request..............................4
Maturity.....................................................4
Officers' Certificate........................................4
Opinion of Counsel...........................................5
Original Issue Discount Security.............................5
Outstanding..................................................5
Overdue Rate.................................................6
Paying Agent.................................................6
Person.......................................................6
Place of Payment.............................................6
Predecessor Security.........................................6
Redemption Date..............................................6
Redemption Price.............................................6
Registered Holder............................................6
--------
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* This Table of Contents shall not, for any purpose, be deemed to be part of the Indenture or to have any bearing upon the interpretation of any of its terms or provisions.
PAGE
Responsible Officer..........................................6
Securities Act...............................................7
Securities Register and Securities
Registrar....................................................7
Security or Securities.......................................7
Stated Maturity..............................................7
Trust Indenture Act..........................................7
Trustee......................................................7
vice president...............................................7
SECTION 1.2. Other Defined Terms.............................................7
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ARTICLE II.
SECURITY FORMS
SECTION 2.1. Forms Generally ................................................8
SECTION 2.2. Form of Trustee's Certificate of
Authentication...............................................8
SECTION 2.3. Form of Trustee's Certificate of
Authentication by an Authenticating Agent....................9
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SECTION 2.4. Securities Issuable in the Form of Global Securities...................................................9
ARTICLE III.
THE SECURITIES
SECTION 3.1. Amount Unlimited; Issuable in Series...........................12
SECTION 3.2. Form and Denominations.........................................14
SECTION 3.3. Authentication, Dating and Delivery of
Securities...................................................14
SECTION 3.4. Execution of Securities........................................17
SECTION 3.5. Certificate of Authentication..................................17
SECTION 3.6. Registration, Registration of Transfer and
Exchange.....................................................17
SECTION 3.7. Mutilated, Destroyed, Lost and Stolen
Securities...................................................19
SECTION 3.8. Payment of Interest; Interest Rights
Preserved....................................................20
SECTION 3.9. Cancellation of Securities; Destruction
Thereof......................................................21
SECTION 3.10. Temporary Securities...........................................21
SECTION 3.11. Computation of Interest........................................22
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ARTICLE IV.
COVENANTS OF THE ISSUER
SECTION 4.1. Payment of Securities...........................................23
SECTION 4.2. Offices or Agency...............................................23
SECTION 4.3. Appointment to Fill a Vacancy in Office of
Trustee......................................................24
PAGE
SECTION 4.4. Paying Agents ................................................24 SECTION 4.5. Maintenance of Corporate Existence..............................25 SECTION 4.6. Certificates to Trustee.........................................25 |
ARTICLE V.
SECURITYHOLDER LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 5.1. Issuer to Furnish Trustee Information as to
Names and Addresses of Securityholders.......................26
SECTION 5.2. Preservation and Disclosure of Securityholder
Lists........................................................26
SECTION 5.3. Reports by the Issuer...........................................28
SECTION 5.4. Reports by the Trustee..........................................29
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ARTICLE VI.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.1. Event of Default Defined; Acceleration of
Maturity; Waiver of Default..................................32
SECTION 6.2. Collection of Indebtedness by Trustee;
Trustee May Prove Debt.......................................35
SECTION 6.3. Application of Proceeds.........................................37
SECTION 6.4. Suits for Enforcement...........................................38
SECTION 6.5. Restoration of Rights on Abandonment of
Proceedings..................................................38
SECTION 6.6. Limitations on Suits by Securityholders.........................39
SECTION 6.7. Unconditional Right of Securityholders to
Institute Certain Suits......................................39
SECTION 6.8. Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default...............................40
SECTION 6.9. Control by Holders of Securities................................40
SECTION 6.10. Waiver of Past Defaults.........................................41
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SECTION 6.11. Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances............................41
SECTION 6.12. Right of Court to Require Filing of
Undertaking to Pay Costs.....................................42
ARTICLE VII.
CONCERNING THE TRUSTEE
SECTION 7.1. Duties and Responsibilities of the Trustee;
During Default; Prior to Default.............................43
SECTION 7.2. Certain Rights of the Trustee...................................44
SECTION 7.3. Trustee Not Responsible for Recitals,
Disposition of Securities or Application
of Proceeds Thereof..........................................45
PAGE
SECTION 7.4. Trustee and Agents May Hold Securities;
Collections, etc.............................................45
SECTION 7.5. Moneys Held by Trustee..........................................46
SECTION 7.6. Compensation and Indemnification of Trustee
and Its Prior Claim..........................................46
SECTION 7.7. Right of Trustee to Rely on Officers'
Certificate, etc.............................................46
SECTION 7.8. Qualification of Trustee; Conflicting
Interests....................................................47
SECTION 7.9. Persons Eligible for Appointment as Trustee.....................47
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SECTION 7.10. Resignation and Removal; Appointment of
Successor Trustee............................................48
SECTION 7.11. Acceptance of Appointment by Successor
Trustee......................................................49
SECTION 7.12. Merger, Conversion, Consolidation or
Succession to Business of Trustee............................50
SECTION 7.13. Preferential Collection of Claims Against
the Issuer...................................................50
SECTION 7.14. Authenticating Agent............................................55
ARTICLE VIII.
CONCERNING THE HOLDERS OF SECURITIES
SECTION 8.1. Action by Holders...............................................57
SECTION 8.2. Proof of Execution of Instruments by Holders
of Securities................................................57
SECTION 8.3. Holders to be Treated as Owners.................................58
SECTION 8.4. Securities Owned by Issuer Deemed Not
Outstanding..................................................58
SECTION 8.5. Right of Revocation of Action Taken.............................59
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ARTICLE IX.
HOLDERS' MEETINGS
SECTION 9.1. Purposes of Meetings............................................60 SECTION 9.2. Call of Meetings by Trustee.....................................60 SECTION 9.3. Call of Meetings by Issuer or Holders...........................60 SECTION 9.4. Qualifications for Voting.......................................61 SECTION 9.5. Regulations ................................................61 SECTION 9.6. Voting ................................................62 SECTION 9.7. No Delay of Rights by Reason of Meeting.........................62 |
ARTICLE X.
SUPPLEMENTAL INDENTURES
SECTION 10.1. Supplemental Indentures Without Consent of
Securityholders..............................................63
SECTION 10.2. Supplemental Indentures With Consent of
Securityholders..............................................65
PAGE
SECTION 10.3. Notice of Supplemental Indenture................................66 SECTION 10.4. Effect of Supplemental Indenture................................66 SECTION 10.5. Documents To Be Given to Trustee................................66 |
SECTION 10.6. Notation on Securities in Respect of Supplemental Indentures......................................66
ARTICLE XI.
CONSOLIDATION, MERGER OR SALE
SECTION 11.1. Issuer May Consolidate, Merge or Sell on
Certain Terms................................................68
SECTION 11.2. Conditions to Consolidation or Merger, etc......................68
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SECTION 11.3. Documents and Opinion To Be Furnished to the Trustee......................................................69
ARTICLE XII.
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 12.1. Satisfaction and Discharge of Securities of
Any Series...................................................70
SECTION 12.2. Satisfaction and Discharge of Indenture.........................71
SECTION 12.3. Application of Trust Money......................................72
SECTION 12.4. Repayment of Moneys Held by Paying Agent........................72
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SECTION 12.5. Return of Unclaimed Moneys Held by Trustee and Paying Agent.............................................72
ARTICLE XIII.
MISCELLANEOUS PROVISIONS
SECTION 13.1. Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual
Liability....................................................74
SECTION 13.2. Provisions of Indenture for the Sole Benefit
of Parties and Securityholders...............................74
SECTION 13.3. Successors and Assigns of Issuer Bound by
Indenture....................................................74
SECTION 13.4. Notices to Holders; Waiver......................................74
SECTION 13.5. Addresses for Notices...........................................75
SECTION 13.6. Officers' Certificates and Opinions of
Counsel; Statements to Be Contained
Therein......................................................75
SECTION 13.7. Separability Clause.............................................76
SECTION 13.8. Legal Holidays .................................................76
SECTION 13.9. Conflict of Any Provision of Indenture with
Trust Indenture Act..........................................77
SECTION 13.10. Governing Law .................................................77
SECTION 13.11. Counterparts .................................................77
SECTION 13.12. Effect of Headings.............................................77
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PAGE
ARTICLE XIV.
REDEMPTION OF SECURITIES
SECTION 14.1. Applicability of Article........................................78
SECTION 14.2. Notice of Redemption; Selection of
Securities...................................................78
SECTION 14.3. Payment of Securities Called for Redemption.....................79
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ARTICLE XV.
SINKING FUNDS
SECTION 15.1. Applicability of Article........................................81
SECTION 15.2. Satisfaction of Mandatory Sinking Fund
Payment with Securities......................................81
SECTION 15.3. Redemption of Securities for Sinking Fund.......................81
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INDENTURE, dated as of February 1, 2001, between IDACORP, INC., an Idaho corporation (hereinafter, subject to Article XI, called the "Issuer" or the "Company"), having its principal office at 1221 West Idaho Street, Boise, Idaho 83702- 5627, and BANKERS TRUST COMPANY, a New York banking corporation, as Trustee (hereinafter, subject to Article VII, called the "Trustee").
Recitals of the Issuer
The Issuer has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its notes, debentures or other evidences of its unsecured indebtedness (hereinafter generally called the "Securities"), to be issued in one or more series, authenticated and delivered, as in this Indenture provided.
All things necessary have been done to make this Indenture a valid agreement of the Issuer, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Persons acquiring the same, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders (as defined in Section 1.1.) of the Securities or of the Securities of any series, without any priority of any one Security or series over any other, except as otherwise expressly provided herein, as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1. Certain Terms Defined. The following terms (except as otherwise expressly provided or unless the context otherwise clearly requires) for all purposes of this Indenture, including any indenture supplemental hereto, have the respective meanings specified in this Section. All other terms used in this Indenture that are defined in the Trust Indenture Act or the definitions of which in the Securities Act of 1933 are referred to in the Trust Indenture Act or that are defined by rule of the Commission under the Trust Indenture Act (except as herein otherwise expressly provided or unless the context otherwise clearly requires) have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act or in said Commission rule under the Trust Indenture Act as in force at the date on which this Indenture was originally executed (subject to Sections 10.1 and 10.2). The words "herein", "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision. All references herein to "Articles" or other subdivisions are to the corresponding Articles or other subdivisions of this Indenture. The terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular.
"Authenticating Agent" means, with respect to any series of Securities, any authenticating agent appointed by the Trustee, with respect to that series of Securities, pursuant to Section 7.14.
"Authorized Newspaper" means a newspaper printed in the English language, customarily published at least once a day, and customarily published for at least five days in each calendar week, and of general circulation in The City of New York. Whenever successive publications are required or authorized to be made in Authorized Newspapers, the successive publications may be made (unless otherwise expressly provided herein) in the same or different newspapers meeting the foregoing requirements and in each case on any Business Day.
"Board of Directors" means either the Board of Directors of the Issuer or any committee of such Board of Directors duly authorized to act on behalf of the Board of Directors.
"Board Resolution" means a copy of a resolution certified by the Secretary or any Assistant Secretary of the Issuer to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
"Business Day" means any day, other than a Saturday or Sunday, which is not a day on which banking or trust institutions are authorized or required by law or regulation to be closed in The City of New York.
"Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, or if at any time after the date on which this Indenture was originally executed such Commission is not existing and performing the duties assigned to it under the Trust Indenture Act on such date of original execution, then the body performing such duties at such time.
"Company": See "Issuer".
"Corporate Trust Office" means the principal office of the Trustee at which at any particular time its corporate trust business shall be administered, which office, on the date of original execution of this Indenture, is located at Four Albany Street, New York, New York 10006, Attention: Manager, Public Utilities.
"Depository" means, with respect to the Securities of any series which, in
accordance with the determination of the Issuer, will be issued in whole or in
part in the form of one or more Global Securities, The Depository Trust Company,
New York, New York, another clearing agency or any successor registered under
the Securities Exchange Act of 1934, or other applicable statute or regulation,
which, in each case, shall be designated by the Issuer pursuant to either
Section 2.4 or 3.1. If at any time there is more than one such Person,
"Depository" as used with respect to the Securities of any such series means the
Depository with respect to the Securities of that series.
"Dollar" ("$") means the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
"Event of Default" means any event or condition specified as such in
Section 6.1 which shall have continued for the period of time, if any, therein
designated.
"Generally Accepted Accounting Principles" means such accounting practice and principles as, in the opinion of the independent accountants regularly retained by the Issuer, conform at the time to accounting principles generally accepted by the certified public accounting profession and applied on a consistent basis (except for changes in application in which such accountants concur). Any accounting terms not defined in this Indenture shall have the respective meanings given to them under Generally Accepted Accounting Principles consistent with those applied in the preparation of the Issuer's financial statements or other financial statements required thereunder.
"Global Security" means, with respect to all or any part of any series of Securities, a Security executed by the Issuer and authenticated and delivered by the Trustee to the Depository or pursuant to the Depository's instruction, all in accordance with this Indenture and pursuant to an Issuer Order, which shall be registered in the name of the Depository or its nominee and the ownership of which will be registered in a "book-entry" or other system maintained by the Depository.
"Government Obligations" means securities which are (i) direct obligations
of the United States government or (ii) obligations of an agency or
instrumentality of the United States government the payment of which is
unconditionally guaranteed by the United States government, which, in either
case, are not callable or redeemable at the option of the issuer thereof, and
such term also includes a depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act of 1933) as custodian with respect to any
such securities or
specific payment of interest on or principal of any such securities held by such custodian for the account of the holder of such depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the securities or the specific payment of interest on or principal of the securities evidenced by such depository receipt.
"Holder", "Registered Holder" and "Securityholder" mean, with respect to a Security, the Person in whose name at the time such Security is registered in the Securities Register (which terms, in the case of a Global Security, mean the Depository, notwithstanding that the Depository maintains a "book-entry" or other system for identification of ownership in respect of such Global Security).
The term "include" (and other forms of such term) means "include, without limitation".
"Indenture" means this instrument as originally executed and delivered or, if amended or supplemented as herein provided, as so amended or supplemented, and includes the forms and terms of particular series of Securities established as contemplated hereunder.
The term "interest" means, with respect to non- interest-bearing Securities, interest payable after Maturity.
"Interest Payment Date" means the Stated Maturity of an installment of interest on the Securities of any series.
"Issuer" or "Company" means (except as otherwise provided in Section 7.13) IDACORP, Inc., an Idaho corporation, and, subject to Article XI, its successors and assigns.
"Issuer Order" and "Issuer Request" mean a written order and a written request, respectively, signed in the name of the Issuer by the president, any vice president or the treasurer, and by any assistant treasurer, the secretary or any assistant secretary of the Issuer, and delivered to the Trustee.
"Maturity" means, with respect to any Security, the date on which the principal of such Security becomes due and payable as therein or herein provided, whether at the Stated Maturity or by acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the president, any vice president or the treasurer, and by any assistant treasurer, the secretary or any assistant secretary of the Issuer, and delivered to the Trustee, except that any Officers' Certificate delivered pursuant to Section 4.6 shall be signed by a principal operating officer, principal financial officer or principal accounting officer. Each such certificate
shall include the statements provided for in Section 13.6, if and to the extent required thereby.
"Opinion of Counsel" means an opinion in writing signed by legal counsel who may be an employee of or counsel to the Issuer or who may be other counsel satisfactory to the Trustee. Each such opinion shall include the statements provided for in Section 13.6, if and to the extent required thereby.
"Original Issue Discount Security" means any Security that provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration with respect thereto pursuant to Section 6.1.
"Outstanding" (subject to Section 8.4) means, with reference to Securities as of any particular time, all Securities authenticated and delivered under this Indenture, except
(a) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of which moneys in the necessary amount shall have been irrevocably deposited in trust with the Trustee or with any Paying Agent (other than the Issuer) or shall have been set aside, segregated and held in trust by the Issuer for the Holders of such Securities (if the Issuer shall act as its own Paying Agent) or for the payment of which Government Obligations shall have been irrevocably deposited in trust with the Trustee in accordance with Article XII; provided that, if such Securities, or portions thereof, are to be redeemed prior to the Stated Maturity thereof, notice of such redemption shall have been given as herein provided, or provision satisfactory to the Trustee shall have been made for giving such notice; and
(c) Securities in substitution for which other Securities shall have been authenticated and delivered, or which shall have been paid, pursuant to the terms of Section 3.7 (except with respect to any such Security as to which proof satisfactory to the Trustee and the Issuer is presented that such Security is held by a Person in whose hands such Security is a legal, valid and binding obligation of the Issuer).
In determining whether Holders of the requisite principal amount of Outstanding Securities of any or all series have made or given any request, demand, authorization, direction, notice, consent or waiver hereunder, or are present to constitute a quorum at a meeting of Holders of Securities, the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for such purposes shall be the
amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration with respect thereto pursuant to Section 6.1.
"Overdue Rate" means, with respect to any series of Securities, the rate designated as such in or pursuant to the resolution of the Board of Directors or the supplemental indenture, as the case may be, relating to such series as contemplated by Section 3.1.
"Paying Agent" means any Person authorized by the Issuer to pay the principal of, or premium, if any, or interest, if any, on, any Securities on behalf of the Issuer.
"Person" means a legal person, including any individual, corporation, estate, limited liability company, partnership, joint venture, association, joint stock company, trust, unincorporated organization or government, or any agency or political subdivision thereof, or any other entity of whatever nature.
"Place of Payment" means, with respect to the Securities of any series, the
place or places where the principal of, and premium, if any, and interest, if
any, on, the Securities of such series are payable as specified pursuant to
Section 3.1.
"Predecessor Security" of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.7 in lieu of a lost, destroyed, mutilated or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
"Redemption Date" means, with respect to any Security to be redeemed, the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" means, with respect to any Security to be redeemed, the price at which it is to be redeemed pursuant to this Indenture.
"Registered Holder": See "Holder".
"Responsible Officer" means, with respect to the Trustee, any officer assigned to the Corporate Trust Office, including any managing director, vice president, assistant vice president, assistant treasurer, assistant secretary or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers, and also, with respect to a particular matter, any other officer, to whom such matter is referred because of such officer's knowledge of and familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Register" and "Securities Registrar": See Section 3.6.
"Security" or "Securities" has the meaning stated in the recitals of this Indenture.
"Stated Maturity" means, with respect to any Security or any installment of interest thereon, the date specified in such Security as the fixed date on which the principal of, or premium, if any, or interest, if any, on, such Security is due and payable.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended and in force (except as otherwise provided herein) at the date on which this Indenture was originally executed.
"Trustee" means the Person identified as "Trustee" in the first paragraph hereof and, subject to the provisions of Article VII, shall also include any successor trustee.
The term "vice president" means, with respect to the Issuer or the Trustee, any vice president, whether or not designated by a number or a word or words added before or after the title of "vice president".
SECTION 1.2. Other Defined Terms. Certain other terms are defined in Article VII and other Articles of this Indenture.
ARTICLE II.
SECURITY FORMS
SECTION 2.1. Forms Generally. The Securities of each series shall be in substantially such form as shall be established pursuant to Section 3.1, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as the Issuer may deem appropriate and as are not contrary to the provisions of this Indenture, or as may be required to comply with any law or with any rules made pursuant thereto or with any rules of any securities exchange or of any automated quotation system, or to conform to usage, all as determined by the officers executing such Securities, as conclusively evidenced by their execution of the Securities.
The definitive Securities of each series shall be prepared by the Company and shall be printed, lithographed or engraved on steel-engraved borders, or may be produced in any other manner, all as determined by the officers executing such Securities, as conclusively evidenced by their execution of such Securities, subject, with respect to the Securities of any series, to the rules of any securities exchange or automated quotation system on which the Securities of such series are listed or quoted and (with respect to Global Securities of any series) to the rules of the Depository.
SECTION 2.2. Form of Trustee's Certificate of Authentication. The Trustee's Certificate of Authentication on all Securities shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
--------------------, as Trustee
By
SECTION 2.3 Form of Trustee's Certificate of Authentication by an Authenticating Agent. If at any time there shall be an Authenticating Agent appointed with respect to any series of Securities, then the Trustee's Certificate of Authentication by such Authenticating Agent on all Securities of each such series shall be in substantially the following form:
--------------------, as Trustee
By [NAME OF AUTHENTICATING
AGENT],
Authenticating Agent
By
SECTION 2.4. Securities Issuable in the Form of Global Securities. (a) If the Issuer shall establish pursuant to Section 3.1 that the Securities of a particular series are to be issued in whole or in part as one or more Global Securities, then the Issuer shall execute, and the Trustee shall, in accordance with Section 3.3 and the Issuer Order delivered to the Trustee thereunder, authenticate and make available for delivery, one or more Global Securities which (i) shall represent an aggregate principal amount equal to the aggregate principal amount of the Outstanding Securities of such series to be represented by one or more Global Securities, (ii) shall be registered in the name of the Depository or its nominee, (iii) shall be delivered by the Trustee to the Depository or pursuant to the Depository's instruction and (iv) shall bear a legend substantially to the following effect:
"Except as otherwise provided in Section 2.4 of the Indenture, unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the Company or its agent for registration of transfer, exchange, or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein."
(b) Notwithstanding any provision of Section 3.6, any Global Security of a series may be transferred, in whole but not in part, and in the manner provided in Section 3.6, only to
another nominee of the Depository for such series, or to a successor Depository for such series selected or approved by the Issuer or to a nominee of such successor Depository.
(c) If at any time the Depository for Securities of a series notifies the Issuer that it is unwilling or unable to continue as Depository for Securities of such series or if at any time the Depository shall no longer be registered or in good standing under the Securities Exchange Act of 1934, or other applicable statute or regulation, and a successor Depository is not appointed by the Issuer within 90 days after the Issuer receives such notice or becomes aware of such condition, as the case may be, this Section shall no longer be applicable to the Securities of such series and the Issuer will execute, and the Trustee, upon receipt of an Issuer Order for the authentication and delivery of individual Securities of such series, will authenticate and make available for delivery, Securities of such series, in authorized denominations, and in an aggregate principal amount equal to the aggregate principal amount of the Global Security or Global Securities of such series in exchange for such Global Security or Global Securities.
The Issuer may at any time determine that Securities of any series shall no longer be represented by one or more Global Securities and that the provisions of this Section shall no longer apply to the Securities of such series. In such event the Issuer will execute and the Trustee, upon receipt of an Issuer Order for the authentication and delivery of individual Securities of such series, will authenticate and make available for delivery Securities of such series, in authorized denominations, and in an aggregate principal amount equal to the aggregate principal amount of the Global Security or Global Securities of such series in exchange for such Global Security.
If specified by the Issuer pursuant to Section 3.1 with respect to a series of Securities, the Depository for such series of Securities may surrender a Global Security for such series of Securities in exchange in whole or in part for individual Securities of such series on such terms as are acceptable to the Issuer and such Depository. Thereupon, the Issuer shall execute, and the Trustee shall authenticate and make available for delivery, without service charge,
(i) to each Person specified by such Depository a new individual Security or Securities of the same series, of any authorized denomination as requested by such Person in aggregate principal amount equal to and in exchange for such Person's beneficial interest in the Global Security; and
(ii) to such Depository a new Global Security in a denomination equal to the difference, if any, between the principal amount of the surrendered Global Security and the
aggregate principal amount of individual Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding paragraphs of this Section, the Issuer will execute and the Trustee will authenticate and make available for delivery individual Securities in registered form in authorized denominations.
Upon the exchange of a Global Security for individual Securities, such Global Security shall be cancelled by the Trustee. Individual Securities issued in exchange for a Global Security pursuant to this Section shall be registered in such names and in such authorized denominations as the Depository for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall make such Securities available for delivery to the Persons in whose names such Securities are so registered.
ARTICLE III.
THE SECURITIES
SECTION 3.1. Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more series. With respect to the Securities of any particular series, there shall be established in, or pursuant to the authority granted in, a resolution of the Board of Directors (delivered to the Trustee in the form of a Board Resolution) or established in one or more indentures supplemental hereto:
(1) the form of the Securities of the series;
(2) the title of the Securities of the series (which shall distinguish the Securities of the series from all other Securities);
(3) any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.4, 3.6, 3.7, 3.10 or 14.3);
(4) the date or dates on which the Securities of the series may be issued;
(5) the date or dates, which may be serial, on which the principal of, and premium, if any, on, the Securities of the series are payable;
(6) the rate or rates, or the method of determination thereof, at
which the Securities of the series shall bear interest, if any (including
the rate or rates at which overdue principal shall bear interest, if
different from the rate or rates at which such Securities shall bear
interest prior to Maturity, and, if applicable, the rate or rates at which
overdue premium or interest shall bear interest, if any); any formulary or
other method or other means by which any such rate or rates shall be
determined, by reference to an index or other fact or event ascertainable
outside this Indenture or otherwise; the date or dates from which such
interest shall accrue, the Interest Payment Dates on which such interest
shall be payable and the record dates, if other than as set forth in
Section 3.8, for the determination of Holders to whom interest is payable;
(7) the place or places where the principal of, and premium, if any, and interest, if any, on, the Securities of the series shall be payable (if other than as provided in Section 4.2);
(8) the provisions, if any, establishing the price or prices at which, the period or periods within which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Issuer, pursuant to any sinking fund or otherwise;
(9) the obligation, if any, of the Issuer to redeem, purchase or repay Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the price or prices at which, and the period or periods within which, and the terms and conditions upon which, Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
(10) if other than denominations of $1,000, and any integral multiple thereof, the denominations in which Securities of the series shall be issuable;
(11) whether the Securities of the series are to be issued as Original Issue Discount Securities and, if so, the amount of the discount with respect thereto;
(12) if other than the principal amount thereof, the portion of the principal amount of the Securities of the series which shall be payable upon declaration of acceleration with respect thereto pursuant to Section 6.1 or payable in bankruptcy pursuant to Section 6.2;
(13) any Events of Default or restrictive covenants provided for with
respect to the Securities of the series, if other than as set forth in
Section 6.1 and Articles IV and XI;
(14) if other than the rate of interest stated in the title of the Securities of the series, the applicable Overdue Rate;
(15) in case the Securities of the series do not bear interest, the applicable dates for the purpose of clause (a) of Section 5.1;
(16) if other than as set forth in Article XII, provisions for the satisfaction and discharge of the Securities of the series and this Indenture;
(17) any trustees, paying agents, transfer agents or registrars with respect to the Securities of the series;
(18) whether the Securities of the series are issuable in whole or in part as one or more Global Securities and, in such case, the identity of the Depository for such Global Security or Global Securities;
(19) any restrictions on transfer with respect to the Securities of the series and any legend reflecting such restrictions to be placed on such Securities;
(20) if the amount of payment of principal of, and premium, if any, or interest, if any, on, the Securities of the series may be determined with reference to an index, formula or other method, the manner in which such amounts shall be determined;
(21) any exceptions to Section 13.8 or in the definition of "Business Day" with respect to the Securities of the series; and
(22) any other terms of the series (which terms shall not be contrary to the provisions of this Indenture).
With respect to any Securities (and without limiting the generality of the foregoing provisions of this Section), such resolution of the Board of Directors or indenture supplemental hereto may provide general terms or parameters and may provide that the specific terms of particular Securities, and the Persons authorized to determine such terms or parameters, may be determined in accordance with or pursuant to the Issuer Order referred to in Section 3.3.
All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in, or pursuant to the authority granted in, such resolution of the Board of Directors or in any such indenture supplemental hereto.
SECTION 3.2. Form and Denominations. In the absence of any specification pursuant to Section 3.1 with respect to the Securities of any series, the Securities of such series shall be issuable in fully registered form, without coupons, in denominations of $1,000 and any integral multiple thereof.
SECTION 3.3. Authentication, Dating and Delivery of Securities. At any time and from time to time after the original execution and delivery of this Indenture, the Issuer may deliver Securities of any series, executed by the Issuer, to the Trustee for authentication. Except as otherwise provided in this Article, the Trustee shall thereupon authenticate and make available for delivery, or cause to be authenticated and delivered, said Securities to or upon an Issuer Order, without any further action by the Issuer; provided, however, that the Trustee shall authenticate and make available for delivery Securities of such series for original issue from time to time
in the aggregate principal amount established for such series pursuant to such procedures, acceptable to the Trustee and to such recipients, as may be specified from time to time by an Issuer Order. The maturity dates, original issue dates, interest rates and any other terms of the Securities of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral instructions from the Issuer or its duly authorized agent, which instructions shall be promptly confirmed in writing.
In authenticating such Securities and accepting the responsibilities under
this Indenture in relation to such Securities, the Trustee shall be entitled to
receive, prior to the initial authentication of such Securities, and (subject to
Section 7.1) shall be fully protected in relying upon:
(1) a Board Resolution relating thereto;
(2) an executed supplemental indenture, if any, relating thereto;
(3) an Officers' Certificate which shall state that all conditions
precedent provided for in this Indenture relating to the issuance of such
Securities have been complied with, that no Event of Default with respect
to any series of Securities has occurred and is continuing and that the
issuance of such Securities does not constitute and will not result in (i)
any Event of Default or any event or condition, which, upon the giving of
notice or the lapse of time or both, would become an Event of Default or
(ii) any default under the provisions of any other instrument or agreement
by which the Company is bound; and
(4) an Opinion of Counsel, which shall state
(a) that the form and the terms of such Securities have been
established (i) by or pursuant to the authority granted in a
resolution of the Board of Directors delivered to the Trustee pursuant
to subparagraph (1) above or by a supplemental indenture delivered to
the Trustee pursuant to subparagraph (2) above, (ii) as provided by
Section 3.1 and (iii) in conformity with the provisions of this
Indenture;
(b) that such Securities, when authenticated and delivered by the Trustee and issued by the Issuer in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and binding obligations of the Issuer enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors' rights and to general equity principles;
(c) that the Issuer has the corporate power to issue such Securities and has duly taken all necessary corporate action with respect to such issuance;
(d) that, assuming compliance with any restrictions limiting the debt issuance capacity of the Issuer applicable to such Securities at the time of the issuance thereof, the issuance of such Securities will not contravene the charter or by-laws of the Issuer or result in any violation of any of the terms or provisions of any law or regulation or of any indenture, mortgage or other instrument or agreement known to such counsel by which the Issuer is bound; and
(e) that all laws and requirements in respect of the execution and delivery by the Issuer of the Securities, and the related supplemental indenture, if any, have been complied with and that authentication and delivery of such Securities and the execution and delivery of the related supplemental indenture, if any, by the Trustee will not violate the terms of the Indenture.
Notwithstanding the provisions of Section 3.1 and of this Section, if all
the Securities of a series are not to be originally issued at one time, it shall
not be necessary to deliver the Board Resolution or supplemental indenture
otherwise required pursuant to Section 3.1 or the Issuer Order, Officers'
Certificate, Opinion of Counsel and other documents required pursuant to this
Section at or prior to the time of authentication of each Security of such
series if such documents are delivered at or prior to the time of authentication
upon original issuance of the first Security of such series to be issued;
provided, however, that any subsequent request by the Issuer to the Trustee to
authenticate Securities of such series shall constitute a representation and
warranty by the Issuer that as of the date of such request the statements made
in the Officers' Certificate delivered pursuant to Section 3.3(3) shall be true
and correct on the date thereof as if made on and as of the date thereof.
The Trustee shall have the right to decline to authenticate and make available for delivery any Securities under this Section if the Trustee, being advised by counsel reasonably acceptable to the Trustee and the Issuer, determines that such action would expose the Trustee to personal liability.
Each Security shall be dated the date of its authentication, except as otherwise provided pursuant to Section 3.1 with respect to the series of which such Security is a part and except that any substitute Security under Section 3.7 shall be dated so that neither gain nor loss in interest shall
result from any mutilation, destruction, loss or theft of the relevant Predecessor Security.
SECTION 3.4. Execution of Securities. The Securities shall be signed in the name of and on behalf of the Issuer by both (a) its president or any vice president and (b) its treasurer, any assistant treasurer, its secretary or any assistant secretary, under its corporate seal which may, but need not, be attested. Such signatures may be the manual or facsimile signatures of such officers. The seal of the issuer may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced thereon. Typographical and other minor errors or defects in any such reproduction of the seal or any such signature shall not affect the validity or enforceability of any Security that has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the Securities shall cease to be such officer before the Security so signed shall be authenticated and delivered by or on behalf of the Trustee or disposed of by the Issuer, such Securities nevertheless may be authenticated and delivered or disposed of as though the Person who signed such Securities had not ceased to be such officer of the Issuer; and any Security may be signed on behalf of the Issuer by such Persons as, at the actual date of the original execution of such Security, shall be the proper officers of the Issuer, although at the date of the original execution and delivery of this Indenture, or at the date of such Security, any such Person was not such an officer.
SECTION 3.5. Certificate of Authentication. No Security shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose, unless there appears on such Security a certificate of authentication substantially in the form hereinbefore recited, executed by or on behalf of the Trustee by manual signature. Such certificate by or on behalf of the Trustee upon any Security executed by the Company shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture.
SECTION 3.6. Registration, Registration of Transfer and Exchange. Subject to the conditions set forth below (and subject, with respect to Global Securities, to Section 2.4), Securities of any series may be exchanged for a like aggregate principal amount of Securities of the same series and having the same terms but in other authorized denominations. Securities to be exchanged shall be surrendered at the offices or agencies to be maintained for such purposes as provided in Section 4.2, and the Issuer shall execute and the Trustee or any Authenticating Agent shall authenticate and make available for delivery in exchange therefor the Security or Securities which the Holder making the exchange shall be entitled to receive.
The Issuer shall keep or cause to be kept, at one of said offices or agencies maintained pursuant to Section 4.2, a register for each series of Securities issued hereunder (hereinafter collectively referred to as the "Securities Register") in which, subject to such reasonable regulations as it may prescribe, the Issuer shall, subject to the provisions of Section 2.4, provide for the registration of Securities of such series and shall register the transfer of Securities of such series as in this Article provided. The Securities Register shall be in written form or in any other form capable of being converted into written form within a reasonable time. The Trustee is hereby appointed as the initial "Securities Registrar" for the purpose of registering Securities and registering transfers of Securities as herein provided. Subject to the provisions of Section 2.4, upon surrender for registration of transfer of any Security of any series at any such office or agency, the Issuer shall execute and the Trustee or any Authenticating Agent shall authenticate and make available for delivery in the name of transferee or transferees a new Security or Securities of the same series for an equal aggregate principal amount.
All Securities presented for registration of transfer or for exchange, redemption or payment shall (if so required by the Issuer or the Securities Registrar) be duly endorsed by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Issuer and the Securities Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
Each Security issued upon registration of transfer or exchange of Securities pursuant to this Section shall be the valid obligation of the Issuer, evidencing the same indebtedness and entitled to the same benefits under this Indenture as the Security or Securities surrendered upon registration of such transfer or exchange.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 3.10, 10.6, or 14.3 not involving any transfer.
The Issuer shall not be required (a) to issue, exchange or register the transfer of any Securities of any series during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of Securities of such series and ending at the close of business on the day of such mailing, or (b) to exchange or register the transfer of any Securities selected, called or being called for redemption except, in the case of any Security to be redeemed in part, the portion thereof not to be redeemed.
SECTION 3.7. Mutilated, Destroyed, Lost and Stolen Securities. In case any temporary or definitive Security shall become mutilated (whether by defacement or otherwise) or be destroyed, lost or stolen, and in the absence of written notice to the Issuer or the Trustee that such Security has been acquired by a bona fide purchaser, the Issuer shall, except as otherwise provided in this Section, execute, and upon an Issuer Request, the Trustee shall authenticate and make available for delivery, a new Security of the same series, tenor and principal amount, bearing a number, letter or other distinguishing symbol not contemporaneously outstanding, in exchange and substitution for the mutilated Security, or in lieu of and in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security shall furnish to the Issuer and to the Trustee and any agent of the Issuer or the Trustee such security or indemnity as may be required by them to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof.
Upon the issuance of any substitute Security under this Section, the Issuer may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee or any Authenticating Agent) connected therewith.
In case any Security which has matured or is about to mature or has been called for redemption in full shall become mutilated or be destroyed, lost or stolen, the Issuer may, instead of issuing a substitute Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Security). In every case, the applicant for such payment shall furnish to the Issuer and to the Trustee and any agent of the Issuer or the Trustee such security or indemnity as any of them may require to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the provisions of this Section by virtue of the fact that any such Security is destroyed, lost or stolen shall constitute an additional contractual obligation of the Issuer, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone and shall be entitled to all the benefits of (but shall be subject to all the limitations of rights set forth in) this Indenture equally and proportionately with any and all other Securities of such series duly authenticated and delivered hereunder. All Securities shall be
held and owned upon the express condition that, to the extent permitted by law, the foregoing provisions of this Section are exclusive with respect to the replacement or payment of mutilated (whether by defacement or otherwise) or destroyed, lost or stolen Securities and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender.
SECTION 3.8. Payment of Interest; Interest Rights Preserved. The Holder of any Securities at the close of business on any record date with respect to any Interest Payment Date shall be entitled to receive the interest, if any, payable on such Interest Payment Date notwithstanding the cancellation of such Securities upon any registration of transfer or exchange subsequent to the record date and prior to such Interest Payment Date, and, if provided for in the Board Resolution pursuant to Section 3.1, in the case of a Security issued between a record date and the initial Interest Payment Date relating to such record date, interest for the period beginning on the date of issue and ending on such initial Interest Payment Date shall be paid to the Person to whom such Security shall have been originally issued. Except as otherwise specified as contemplated by Section 3.1, for Securities of a particular series the term "record date" as used in this Section with respect to any Interest Payment Date shall mean the close of business on the last day of the calendar month preceding such Interest Payment Date if such Interest Payment Date is the fifteenth day of a calendar month and shall mean the close of business on the fifteenth day of the calendar month preceding such Interest Payment Date if such Interest Payment Date is the first day of a calendar month, whether or not such day shall be a Business Day. At the option of the Issuer, payment of interest on any Security may be made by check mailed to the address of the Person entitled thereto (which shall be the Depository in the case of Global Securities) as such address shall appear in the Securities Register.
If and to the extent the Issuer shall default in the payment of the interest due on such Interest Payment Date in respect of any Securities, such defaulted interest shall be paid by the Issuer at its election in each case, as provided in clause (1) or (2) below:
(1) The Issuer may make payment of any defaulted interest to the Holder of Securities at the close of business on a subsequent record date established by notice given by mail, by or on behalf of the Issuer, to such Holder not less than 15 days preceding such subsequent record date, such record date to be not less than 10 days preceding the date for payment of such defaulted interest.
(2) The Issuer may make payment of any defaulted interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of such series may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Issuer to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon registration of transfer of, or in exchange for, or in lieu of, any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.9. Cancellation of Securities; Destruction Thereof. All Securities surrendered for payment, redemption, registration of transfer or exchange, or for credit against any payment in respect of a sinking or analogous fund, shall, if surrendered to the Issuer or any Paying Agent or any Securities Registrar, be delivered to the Trustee for cancellation or, if surrendered to the Trustee, shall be cancelled by it, and no Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. The Trustee shall, unless instructed to deliver the Securities to the Issuer in an Issuer Order, destroy such cancelled Securities and deliver certification of their destruction to the Issuer. If the Issuer shall acquire any of the Securities, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered to the Trustee for cancellation.
SECTION 3.10. Temporary Securities. Pending the preparation by the Issuer of definitive Securities of any series, the Issuer may execute and the Trustee shall authenticate and make available for delivery temporary Securities for such series (printed, lithographed, typewritten or otherwise reproduced, in each case in form satisfactory to the Trustee). Temporary Securities of any series shall be issuable in any authorized denomination, and substantially in the form of the definitive Securities of such series in lieu of which they are issued but with such omissions, insertions and variations as may be appropriate for temporary securities, all as may be determined by the Issuer with the concurrence of the Trustee. Temporary Securities may contain such reference to any provisions of this Indenture as may be appropriate. Every temporary Security shall be executed by the Issuer and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities. Without unreasonable delay the Issuer shall execute and shall furnish definitive Securities of such series and thereupon temporary Securities of such series may be surrendered in exchange therefor without charge at the Corporate
Trust Office of the Trustee, and the Trustee shall authenticate and make available for delivery in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities of the same series. Such exchange shall be made by the Issuer at its own expense and without any charge therefor except that in case of any such exchange involving any registration of transfer the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series authenticated and delivered hereunder.
SECTION 3.11. Computation of Interest. Except as otherwise specified as contemplated by Section 3.1 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE IV.
COVENANTS OF THE ISSUER
The Issuer covenants and agrees for the benefit of each series of Securities (except to the extent that any series of the Securities is excluded from the benefits of any of such covenants pursuant to Section 3.1(13)) that on and after the date of original execution of this Indenture and so long as any of the Securities of such series remain Outstanding:
SECTION 4.1. Payment of Securities. The Issuer will duly and punctually pay or cause to be paid the principal of, and the premium, if any, and interest, if any, on, the Securities of such series at the place or places, at the respective times and in the manner provided in such Securities and in the Indenture. As provided in Section 3.8, each installment of interest on the Securities of any series may be paid by mailing checks for such interest payable to the Holders of such Securities entitled thereto as their names shall appear on the Securities Register.
SECTION 4.2. Offices or Agency. So long as any of the Securities remain Outstanding, the Issuer will maintain in the Borough of Manhattan, The City of New York, New York, an office or agency where Securities of such series may be presented or surrendered for payment, where Securities of such series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Issuer in respect of the Securities of such series and this Indenture may be served, which office or agency shall initially be the Corporate Trust Office of the Trustee or, if the Corporate Trust Office of the Trustee is not located in the Borough of Manhattan, The City of New York, such office or agency shall be the principal corporate trust office of the Authenticating Agent designated pursuant to Section 7.14 hereof. The Issuer will give prompt written notice to the Trustee of any change in the location of any such office or agency. If at any time the Issuer shall fail to maintain such required office or agency or shall fail to furnish the Trustee with the required information with respect thereto, presentations, surrenders, notices and demands in respect of Securities may be made or served at the Corporate Trust Office of the Trustee and the corporate trust office of any Authenticating Agent appointed hereunder; and the Issuer hereby appoints the Trustee and any Authenticating Agent appointed hereunder its agents to receive all such presentations, surrenders, notices and demands.
The Issuer may also from time to time designate one or more other offices or agencies (in or outside The City of New York) where the Securities of such series may be presented or surrendered for any or all of such purposes, and may from time to time rescind such designation; provided, however, that no such designation or rescission shall in any manner relieve the
Issuer of its obligation to maintain for such purposes an office or agency in the Borough of Manhattan, The City of New York. The Issuer will promptly notify the Trustee of any such designation or rescission thereof.
SECTION 4.3. Appointment to Fill a Vacancy in Office of Trustee. The Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so that there shall at all times be a Trustee with respect to each series of Securities hereunder.
SECTION 4.4. Paying Agents. Whenever the Issuer shall appoint a Paying Agent other than the Trustee with respect to the Securities of any series, it will cause such Paying Agent to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section,
(a) that it will hold all sums received by it as such Paying Agent for the payment of the principal of, and premium, if any, and interest, if any, on, the Securities of such series (whether such sums have been paid to it by the Issuer or by any other obligor on the Securities of such series) in trust for the benefit of the Holders of the Securities of such series, or of the Trustee,
(b) that it will give the Trustee notice of any failure by the Issuer (or by any other obligor on the Securities of such series) to make any payment of the principal of, or premium, if any, or interest, if any, on, the Securities of such series when the same shall be due and payable, and
(c) that at any time during the continuance of any such failure, upon the written request of the Trustee it will forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
If the Issuer shall act as its own Paying Agent with respect to the Securities of any series, it will, on or before each due date of the principal of, or premium, if any, or interest, if any, on, the Securities of such series, set aside, segregate and hold in trust for the benefit of the Holders of the Securities of such series a sum sufficient to pay such principal, premium, if any, or interest, if any, so becoming due. The Issuer will promptly notify the Trustee of any failure to take such action.
Whenever the Issuer shall have one or more Paying Agents with respect to the Securities of any series, it will, on or prior to the due date of the principal of, or premium, if any, or interest, if any, on, the Securities of such series, deposit with a designated Paying Agent for such series a sum
sufficient to pay the principal, premium, if any, or interest, if any, so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium, if any, or interest, if any, and (unless such Paying Agent is the Trustee) the Issuer will promptly notify the Trustee at its Corporate Trust Office of its failure so to act.
Anything in this Section to the contrary notwithstanding, the Issuer may at any time, for the purpose of obtaining a satisfaction and discharge with respect to one or more or all series of Securities hereunder, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust for any such series by the Issuer or any Paying Agent hereunder, as required by this Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section is subject to the provisions of Sections 12.3, 12.4 and 12.5.
SECTION 4.5. Maintenance of Corporate Existence. The Issuer will preserve its corporate existence, but this covenant shall not require the Issuer to continue its corporate existence in the event of a consolidation or merger of the Issuer with or into any other corporation in accordance with Article XI as a result of which the Issuer shall lose its corporate identity, or in the event of a sale, transfer or lease of the property of the Issuer as an entirety or substantially as an entirety in accordance with Article XI.
SECTION 4.6. Certificates to Trustee. The Issuer will, on or before May 1 in each year, commencing with the year 2002, file with the Trustee an Officers' Certificate complying with the provisions of the second paragraph of Section 13.6, covering the period from the date of original execution of this Indenture to December 31, 2001 in the case of the first such certificate, and covering the preceding calendar year in the case of each subsequent certificate, and stating whether or not, to the knowledge of each of the signers, the Issuer has complied with the conditions and covenants on its part contained in this Indenture, and, if the signers, to the best of their knowledge, know of any default by the Issuer in the performance, observance or fulfillment of any such condition or covenant, specifying each such default and the nature thereof. For the purpose of this Section, compliance shall be determined without regard to any grace period or requirement of notice provided pursuant to the terms of this Indenture.
ARTICLE V.
SECURITYHOLDER LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 5.1. Issuer to Furnish Trustee Information as to Names and Addresses of Securityholders. The Issuer covenants and agrees that it will furnish or cause to be furnished to the Trustee a list in such form as the Trustee may reasonably require of the names and addresses of the Holders of the Securities of each series;
(a) semiannually and not more than 15 days after each record date for the payment of interest, if any, on such Securities of such series, as of such record date, and on dates to be determined pursuant to Section 3.1 for non- interest bearing Securities of such series in each year, and
(b) at such other times as the Trustee may request in writing, within 30 days after receipt by the Issuer of any such request, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of the Securities of such series, as of the respective record dates therefor (and on dates to be determined pursuant to Section 3.1 if the Securities of such series do not bear interest) as of a date not more than 15 days prior to the time such information is furnished and need not include information received after such date;
provided that, if and so long as the Trustee shall be the Securities Registrar for such series, such list shall not be required to be furnished.
SECTION 5.2. Preservation and Disclosure of Securityholder Lists. (a) The
Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the Holders of each series of the
Securities (1) contained in the most recent list furnished to it as provided in
Section 5.1, (2) maintained by the Trustee in its capacity as Paying Agent for
such series (if so acting) hereunder and of the Securities Registrar for such
series, and (3) filed with it within two preceding years pursuant to the
provisions of paragraph (2) of subsection (c) of Section 5.4.
The Trustee may (1) destroy any list furnished to it as provided in Section 5.1 upon receipt of a new list so furnished, (2) destroy any information received by it as Paying Agent for such series (if so acting) hereunder upon delivery to itself as Trustee a list containing the names and addresses of the Holders of Securities of such series obtained from such information since the delivery of the next previous list, if any, (3) destroy any list delivered to itself as Trustee which
was compiled from information received by it as Paying Agent (if so acting) hereunder upon the receipt of a new list so delivered, and (4) destroy any information filed with it by the Holders of Securities of such series for the purpose of receiving reports pursuant to the provisions of paragraph (2) of subsection (c) of Section 5.4, but not until two years after such information has been filed with it.
(b) In case three or more Holders of Securities (hereinafter referred to as "applicants") apply in writing to the Trustee and furnish to the Trustee reasonable proof that each such applicant has owned a Security of such series for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders of Securities of a particular series (in which case at least three of the applicants must all hold Securities of such series) or with Holders of all Securities with respect to their rights under this Indenture or under such Securities and such application is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Trustee shall, within five Business Days after the receipt of such application, at its election, either
(i) afford to such applicants access to the information preserved at the time by the Trustee in accordance with the provisions of subsection (a) of this Section, or
(ii) inform such applicants as to the approximate number of Holders of Securities of such series or all Securities, as the case may be, whose names and addresses appear in the information preserved at the time by the Trustee, in accordance with the provisions of subsection (a) of this Section, and as to the approximate cost of mailing to such Securityholders the form of proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants access to such information, the Trustee shall, upon the written request of such applicants, mail to each Holder of Securities of such series or all Holders of Securities, as the case may be, whose names and addresses appear in the information preserved at the time by the Trustee in accordance with the provisions of subsection (a) of this Section a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within five days after such tender, the Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best interests of the
Holders of Securities of such series or all Holders of Securities, or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met, and shall enter an order so declaring, the Trustee shall mail copies of such material to all such Securityholders with reasonable promptness after the entry of such order and the renewal of such tender; otherwise, the Trustee shall be relieved of any obligation or duty to such applicants respecting their application.
(c) Each and every Holder of Securities, by receiving and holding the same, agrees with the Issuer and the Trustee that neither the Issuer nor the Trustee nor any Paying Agent shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders of Securities in accordance with the provisions of subsection (b) of this Section, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under such subsection (b).
SECTION 5.3. Reports by the Issuer. The Issuer covenants:
(a) to file with the Trustee, within 15 days after the Issuer is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Issuer may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934; or, if the Issuer is not required to file information, documents or reports pursuant to either of such Sections, then to file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Securities Exchange Act of 1934 in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the
Issuer with the conditions and covenants provided for in this Indenture as may be required from time to time by such rules and regulations; and
(c) to transmit by mail to the Holders of Securities in the manner and to the extent provided in Sections 5.4(c) and 5.4(d) within 30 days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Issuer pursuant to subsections (a) and (b) of this Section as may be required to be transmitted to such Holders by rules and regulations prescribed from time to time by the Commission.
SECTION 5.4. Reports by the Trustee. (a) Within 60 days after May 15 in
each year following the date of original execution of this Indenture, so long as
any Securities are Outstanding hereunder, the Trustee shall transmit by mail as
provided below to the Securityholders of such series, as hereinafter in this
Section provided, a brief report, dated as of a date convenient to the Trustee
no more than 60 days prior thereto, with respect to any of the following events
which may have occurred within the previous twelve months (but if no such event
has occurred within such period, no report need be transmitted):
(i) any change to its eligibility under Section 7.9 and its qualification under Section 7.8;
(ii) the creation of or any material change to a relationship specified in Section 310(b)(1) through Section 310(b)(10) of the Trust Indenture Act;
(iii) the character and amount of any advances (and if the Trustee elects so to state, the circumstances surrounding the making thereof) made by the Trustee (as such) which remain unpaid on the date of such report and for the reimbursement of which it claims or may claim a lien or charge, prior to that of the Securities of any series, on any property or funds held or collected by it as Trustee, except that the Trustee shall not be required (but may elect) to report such advances if such advances so remaining unpaid aggregate not more than 1/2 of 1% of the principal amount of the Securities of such series Outstanding on the date of such report;
(iv) any change to the amount, interest rate and maturity date of all
other indebtedness owing by the Issuer (or by any other obligor on the
Securities of such series) to the Trustee in its individual capacity on the
date of such report, with a brief description of any property held as
collateral security therefor, except any indebtedness based upon a creditor
relationship arising in any manner described in Section 7.13(b)(2), (3),
(4) or (6);
(v) any change to the property and funds, if any, physically in the possession of the Trustee (as such) on the date of such report;
(vi) any additional issue of Securities of any series which the Trustee has not previously reported; and
(vii) any action taken by the Trustee in the performance of its duties under this Indenture which it has not previously reported and which in its opinion materially affects the Securities of any series, except action in respect of a default, notice of which has been or is to be withheld by it in accordance with the provisions of Section 6.11.
(b) The Trustee shall transmit to the Securityholders of each series, as
provided in subsection (c) of this Section, a brief report with respect to the
character and amount of any advances (and if the Trustee elects so to state, the
circumstances surrounding the making thereof) made by the Trustee, as such,
since the date of the last report transmitted pursuant to the provisions of
subsection (a) of this Section (or if no such report has yet been so
transmitted, since the date of original execution of this Indenture) for the
reimbursement of which it claims or may claim a lien or charge prior to that of
the Securities of any series on property or funds held or collected by it as
Trustee and which it has not previously reported pursuant to this subsection
(b), except that the Trustee shall not be required (but may elect) to report
such advances if such advances remaining unpaid at any time aggregate 10% or
less of the principal amount of Securities of such series Outstanding at such
time, such report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by mail:
(1) to all Holders of Securities, as the names and addresses of such Holders appear in the Securities Register;
(2) to such Holders of Securities of any series as have, within two years preceding such transmission, filed their names and addresses with the Trustee for that purpose; and
(3) except in the cases of reports pursuant to subsection (b) of this
Section, to each Holder of a Security of any series whose name and address
are preserved at the time by the Trustee, as provided in subsection (a) of
Section 5.2.
(d) A copy of each such report shall, at the time of such transmission to the Securityholders of any series, be furnished to the Issuer and be filed by the Trustee with each stock exchange upon which the Securities of such series are listed and also with the Commission. The Issuer agrees to notify the Trustee in writing promptly when and as the Securities of any series become admitted to trading on any national securities exchange.
ARTICLE VI.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.1. Event of Default Defined; Acceleration of Maturity; Waiver of Default. "Event of Default", with respect to the Securities of any series, wherever used herein, means each one of the following events which shall have occurred and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), unless it is either inapplicable to a particular series or it is specifically deleted or modified in the applicable resolution of the Board of Directors or in the supplemental indenture under which such series of Securities is issued, as the case may be, as contemplated by Section 3.1:
(a) default in the payment of any installment of interest upon any of the Securities of such series as and when the same shall become due and payable, and continuance of such default for a period of 30 days and the time for payment of such interest has not been extended; provided, however, that if the Issuer is permitted by the terms of the Securities of the applicable series to defer the payment in question, the date on which such payment is due and payable shall be the date on which the Issuer is required to make payment following such deferral, if such deferral has been elected pursuant to the terms of the Securities of that series; or
(b) default in the payment of all or any part of the principal of or premium, if any, on any of the Securities of such series as and when the same shall become due and payable either at Stated Maturity, upon redemption, by declaration or otherwise and the time for payment of such principal (or premium, if any), has not been extended; provided, however, that if the Company is permitted by the terms of the Securities of the applicable series to defer the payment in question, the date on which such payment is due and payable shall be the date on which the Company is required to make payment following such deferral, if such deferral has been elected pursuant to the terms of the Securities of that series; or
(c) default in the deposit of any sinking fund payment when and as due and payable by the terms of the Securities of such series; or
(d) default in the performance or observance of any other covenant or agreement of the Issuer in respect of the Securities of such series (other than a covenant or
agreement in respect of the Securities of such series a default in whose performance or observance is elsewhere in this Section specifically dealt with), and continuance of such default for a period of 60 days after there has been given, by registered or certified mail, to the Issuer by the Trustee, or to the Issuer and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of all series affected thereby, a written notice specifying such default and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or
(e) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Issuer in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or, under any such law, (i) appointing a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Issuer or for any substantial part of its property or (ii) ordering the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(f) the Issuer shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or, under any such law, (i) consent to the entry of an order for relief in an involuntary case under any such law, (ii) consent to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Issuer or for any substantial part of its property, or (iii) make any general assignment for the benefit of creditors; or
(g) any other Event of Default established by or pursuant to a resolution of the Board of Directors or one or more indentures supplemental hereto as applicable to the Securities of such series.
If an Event of Default described in clause (a), (b), (c), (d) or (g) above (if the Event of Default under clause (d) or (g) is with respect to fewer than all series of Securities then Outstanding) occurs and is continuing, then, and in each and every case, unless the principal of all of the Securities of such series shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding hereunder (each such series voting as a separate class), by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if the Securities of such series are Original Issue Discount Securities, such portion of the principal as may be specified in the terms of such series) of all Securities of such
series and the interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately due
and payable. If an Event of Default described in clause (d) or (g) above with
respect to all series of Securities then Outstanding occurs and is continuing,
then and in each and every such case, unless the principal of all the Securities
shall have already become due and payable, either the Trustee or the Holders of
not less than 25% in aggregate principal amount of all the Securities then
Outstanding hereunder (treated as one class), by notice in writing to the Issuer
(and to the Trustee if given by Securityholders), may declare the entire
principal (or, if any Securities are Original Issue Discount Securities, such
portion of the principal as may be specified in the terms thereof) of all the
Securities then Outstanding and the interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration the same shall become
immediately due and payable. If any Event of Default described in clause (e) or
(f) occurs and is continuing, all the Securities then Outstanding and the
interest accrued thereon, if any, shall immediately become due and payable
without declaration, presentment, demand or notice of any kind by the Trustee or
any Holder of Securities Outstanding hereunder.
The foregoing provisions, however, are subject to the condition that if, at any time after the principal (or, if the Securities are Original Issue Discount Securities, such portion of the principal as may be specified in the terms thereof) of the Securities of any series (or of all the Securities, as the case may be) shall have been so declared or become due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay all matured installments of interest, if any, upon all the Securities of such series (or upon all the Securities, as the case may be) and the principal of (and premium, if any, on) any and all Securities of such series (or of all the Securities, as the case may be) which shall have become due otherwise than by acceleration (with interest upon such principal and premium, if any, and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest, at the Overdue Rate applicable to such series to the date of such payment or deposit) and all amounts payable to the Trustee pursuant to the provisions of Section 7.6, and such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee except as a result of negligence or bad faith, and if any and all Events of Default under the Indenture, other than the nonpayment of the principal of and accrued interest on Securities of such series which shall have become due by acceleration, shall have been cured, waived or otherwise remedied as provided herein -- then and in every such case the
Holders of a majority in aggregate principal amount of the Securities of such series (each series voting as a separate class), or of all the Securities (voting as a single class), as the case may be, then Outstanding, by written notice to the Issuer and to the Trustee, may waive all defaults with respect to that series (or with respect to all the Securities, as the case may be) and rescind and annul such acceleration and its consequences, but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Security shall have been accelerated and declared or become due and payable pursuant to the provisions hereof, then, from and after such acceleration, unless such acceleration has been rescinded and annulled, the principal amount of such Original Issue Discount Security shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Security.
SECTION 6.2. Collection of Indebtedness by Trustee; Trustee May Prove Debt. The Issuer covenants that (a) in case default shall be made in the payment of any installment of interest on any of the Securities of any series when such interest shall have become due and payable, and such default shall have continued for a period of 30 days or (b) in case default shall be made in the payment of all or any part of the principal of or any premium, if any, on any Securities of any series when the same shall have become due and payable, whether upon Stated Maturity of the Securities of such series or upon any redemption or by acceleration or otherwise or (c) in case of default in the making or satisfaction of any sinking fund payment or analogous obligation when the same becomes due by the terms of the Securities of any series -- then upon demand of the Trustee for such series, the Issuer will pay to the Trustee for the benefit of the Holder of any such Security (or Holders of any such series of Securities in the case of clause (c) above) the whole amount that then shall have become due and payable on any such Security (or Securities of any such series in the case of clause (c) above) for the principal, premium, if any, and interest, if any, with interest upon the overdue principal and premium, if any, and, so far as payment of the same is enforceable under applicable law, on overdue installments of interest, at the Overdue Rate applicable to any such Security (or Securities of any such series in the case of clause (c)); and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, and any further amounts payable to the Trustee, its agents and counsel pursuant to the provisions of Section 7.6.
In case the Issuer shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Issuer or other obligor upon such Securities (or Securities of any such series in case of clause (c)) and collect in the manner provided by law out of the property of the Issuer or other obligor upon such Securities (or Securities of any such series in case of clause (c)), wherever situated, the moneys adjudged or decreed to be payable.
The Trustee shall be entitled and empowered, either in its own name as trustee of an express trust, or as attorney-in- fact for the Holders of any of the Securities, or in both such capacities, to file such proof of debt, amendment of proof of debt, claim, petition or other document as may be necessary or advisable in order to have the claims of the Trustee and of the Holders of Securities allowed in any equity receivership, insolvency, bankruptcy, liquidation, readjustment, reorganization or other similar proceedings, or any judicial proceedings, relative to the Company or any other obligor on the Securities or its creditors or its property. The Trustee is hereby irrevocably appointed (and the successive respective Holders of the Securities, by taking and holding the same, shall be conclusively deemed to have so appointed the Trustee) the true and lawful attorney-in-fact of the respective Holders of the Securities, with authority to make or file in the respective names of the Holders of the Securities any proof of debt, amendment of proof of debt, claim, petition or other document in any such proceedings and to receive payment of any sums becoming distributable on account thereof, and to execute any other papers and documents and do and perform any and all acts and things for and on behalf of such Holders of the Securities as may be necessary or advisable in the opinion of the Trustee in order to have the respective claims of the Holders of the Securities against the Issuer or any other obligor on the Securities and/or its property allowed in any such proceedings, and to receive payment of or on account of such claims; provided, however, that nothing herein contained shall be deemed to authorize or empower the Trustee to consent to or accept or adopt, on behalf of any Holder of Securities, any plan of reorganization or readjustment of the Issuer or any other obligor on the Securities or, by other action of any character in any such proceeding, to waive or change in any way any right of any Holder of any Security, even though it may otherwise be entitled so to do under any present or future law, all such power or authorization being hereby expressly denied.
All rights of action and of asserting claims under this Indenture or under any of the Securities may be enforced by the Trustee without the possession of any of the Securities or
the production thereof in any trial or other proceedings relative thereto, and any such action or proceedings instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment, subject to the payment of the expenses, disbursements and compensation of the Trustee, each predecessor Trustee and their respective agents and attorneys, shall be for the ratable benefit of the holders of the Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings involving the interpretation of any provision of this Indenture to which the Trustee shall be a party) the Trustee shall be held to represent all the Holders of the Securities in respect of which such action was taken, and it shall not be necessary to make any Holders of such Securities parties to any such proceedings.
SECTION 6.3. Application of Proceeds. Any moneys collected by the Trustee pursuant to this Article in respect of any series of the Securities, together with any other sums held by the Trustee (as such) hereunder (other than sums held in trust for the benefit of the Holders of particular Securities), shall be applied in the following order at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal, upon presentation (except in respect of Subdivision First below) of the several Securities in respect of which moneys have been collected and stamping (or otherwise noting) thereon the payment, or issuing Securities of such series in reduced principal amounts in exchange for the presented Securities of like series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such series in respect of which moneys have been collected, including reasonable compensation to the Trustee and each predecessor Trustee and their respective agents and attorneys and of all expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee except as a result of negligence or bad faith, and all other amounts due to the Trustee or any predecessor Trustee pursuant to Section 7.6;
SECOND: In case the principal of the Securities of such series in respect of which moneys have been collected shall not have become and be then due and payable, to the payment of interest on the Securities of such series in default in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee), so far as it may be enforceable under applicable law, upon the overdue installments of interest at the Overdue Rate applicable to such series, such payments to be made ratably to the Persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series in respect of which moneys have been collected shall have become and shall be then due and payable, to the payment of the whole amount then owing and unpaid upon all the Securities of such series for principal and premium, if any, and interest, if any, with interest upon the overdue principal and premium, if any, and (to the extent that such interest has been collected by the Trustee), so far as payment of the same is enforceable under applicable law, upon overdue installments of interest, if any, at the Overdue Rate applicable to such series; and in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon the Securities of such series, then to the payment of such principal, premium, if any, and interest, if any, without preference or priority of principal and premium, if any, over interest, or of interest, if any, over principal and premium, if any, or of any installment of interest over any other installment of interest, or of any Security of such series over any other Security of such series, ratably to the aggregate of such principal, premium, if any, and accrued and unpaid interest, if any; and
FOURTH: To the payment of the remainder, if any, to the Issuer or as a court of competent jurisdiction may direct.
SECTION 6.4. Suits for Enforcement. In case an Event of Default with respect to Securities of any series has occurred, has not been waived and is continuing, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
SECTION 6.5. Restoration of Rights on Abandonment of Proceedings. In case the Trustee or any Holder shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Trustee or such Holder, then and in every such case (subject to the binding effect of any determination made in such proceedings) the Issuer and the Trustee shall be restored severally and respectively to their former positions and rights hereunder, and (subject as aforesaid) all rights, remedies and powers of the Issuer, the Trustee and the Holders shall continue as though no such proceedings had been taken.
SECTION 6.6. Limitations on Suits by Securityholders. No Holder of any Security of any series shall have any right by virtue or by availing of any provision of this Indenture to institute an action or proceeding at law or in equity or in bankruptcy or otherwise upon or under or with respect to this Indenture, or for the appointment of a trustee, receiver, liquidator, custodian or other similar official or for any other remedy hereunder, unless such Holder previously shall have given to the Trustee written notice of default and of the continuance thereof, as hereinbefore provided, and unless also the Holders of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding shall have made written request upon the Trustee to institute such action or proceeding in its own name as Trustee hereunder and shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred therein or thereby and the Trustee for 60 days after its receipt of such notice, request and offer of indemnity shall have failed to institute any such action or proceeding and no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 6.9; it being understood and intended, and being expressly covenanted by the taker and Holder of every Security with every other taker and Holder of any Security and with the Trustee, that no one or more Holders of Securities of any series shall have any right in any manner whatever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any other Holder of Securities, or to obtain or seek to obtain priority over or preference to any other such Holder or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Securities of such series. For the protection and enforcement of the provisions of this Section, each and every Holder of Securities of any series and the Trustee shall be entitled to such relief as can be given either at law or in equity.
SECTION 6.7. Unconditional Right of Securityholders to Institute Certain Suits. Nothing contained in this Indenture or in the Securities of any series shall affect or impair the obligation of the Issuer, which is unconditional and absolute, to pay the principal of, and premium, if any, and interest, if any, on, the Securities of such series at the respective places, at the respective times, at the respective rates, in the respective amounts and in the coin or currency therein and herein prescribed, or affect or impair the right of action, which is also absolute and unconditional, of any Holder of any Security to institute suit to enforce such payment at the respective due dates expressed in such Security, or upon redemption, by declaration, repayment or otherwise as herein provided without reference to, or the consent of, the Trustee or the Holder of any other Security, unless such Holder consents thereto or unless and to the extent that the institution or prosecution thereof or the entry of judgment therein, would,
under applicable law, result in the surrender, impairment, waiver or loss of the lien, if any, of this Indenture upon any property subject to such lien.
SECTION 6.8. Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default. Except as provided in Section 6.6, no right or remedy herein conferred upon or reserved to the Trustee or to the Holder of any Security is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of any Security of any series to exercise any right or power accruing upon any Event of Default occurring and continuing as aforesaid shall impair any such right or power or shall be construed to be a waiver of any such Event of Default or an acquiescence therein; and, subject to Section 6.6, every power and remedy given by this Indenture or by law to the Trustee or to the Holder of any Security may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holder of such Security.
SECTION 6.9. Control by Holders of Securities. The Holders of a majority in aggregate principal amount of the Securities of each series affected (with each series voting as a separate class) at the time Outstanding shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee with respect to the Securities of such series by this Indenture; provided that such direction shall not be otherwise than in accordance with law and the provisions of this Indenture, and provided, further, that (subject to the provisions of Section 7.1) the Trustee shall have the right to decline to follow any such direction if the Trustee, being advised by counsel, shall determine that the action or proceeding so directed may not lawfully be taken or if the Trustee in good faith by its board of directors, the executive committee or a trust committee of directors or Responsible Officers of the Trustee shall determine that the action or proceedings so directed would expose the Trustee to personal liability or if the Trustee in good faith shall so determine that the actions or forebearances specified in or pursuant to such direction would be unduly prejudicial to the interests of Holders of the Securities of all series so affected not joining in the giving of said direction, it being understood that (subject to Section 7.1) the Trustee shall have no duty to ascertain whether or not such actions or forebearances are unduly prejudicial to such Holders.
As between the Trustee and the Holders of the Securities, nothing in this Indenture shall impair the right of the Trustee in its discretion to take any action deemed proper by the Trustee and which is not inconsistent with such direction or directions by Securityholders.
SECTION 6.10. Waiver of Past Defaults. Prior to the acceleration with respect to Securities of any series as provided in Section 6.1, the Holders of not less than a majority in aggregate principal amount of the Securities of such series at the time Outstanding, may on behalf of the Holders of all the Securities of such series waive any past default or Event of Default described in clause (d) or (g) of Section 6.1 which relates to fewer than all series of Securities then Outstanding, and the Holders of a majority in aggregate principal amount of the Securities then Outstanding affected thereby (each series voting as a separate class) may waive any such default or Event of Default, or, in the case of an event specified in clause (d) or (g) (if the Event of Default under clause (d) or (g) relates to all series of Securities then Outstanding) of Section 6.1, the Holders of a majority in aggregate principal amount of all the Securities then Outstanding (voting as one class) may waive any such default or Event of Default, and its consequences except a default in respect of a covenant or provision hereof which cannot be modified or amended without the consent of the Holder of each Security affected. In the case of any such waiver, the Issuer, the Trustee and the Holders of the Securities of such series shall be restored to their former positions and rights hereunder, respectively, such default shall cease to exist and be deemed to have been cured and not to have occurred, and any Event of Default arising therefrom shall be deemed to have been cured, and not to have occurred for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon.
SECTION 6.11. Trustee to Give Notice of Default, But May Withhold in Certain Circumstances. The Trustee shall transmit to the Securityholders of any series, as the names and addresses of such Holders appear on the Security Register, notice by mail of all defaults known to a Responsible Officer of the Trustee which have occurred with respect to such series, such notice to be transmitted within 90 days after the occurrence thereof, unless such defaults shall have been cured before the giving of such notice (the term "default" or "defaults" for the purposes of this Section being hereby defined to mean any event or condition which is, or with notice or lapse of time or both would become, an Event of Default); provided that, except in the case of default in the payment of the principal of, or premium, if any, or interest, if any, on, any of the Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interests of the Securityholders of such series.
SECTION 6.12. Right of Court to Require Filing of Undertaking to Pay Costs.
The parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken, suffered
or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series Outstanding, or, in
the case of any suit relating to or arising under clause (d) or (g) of Section
6.1 (if the suit relates to Securities of more than one but fewer than all
series), 10% in aggregate principal amount of Securities Outstanding affected
thereby, or, in the case of any suit relating to or arising under clause (d),
(g) (if the suit under clause (d) or (g) relates to all the Securities then
Outstanding), (e) or (f) of Section 6.1, 10% in aggregate principal amount of
all Securities Outstanding, or to any suit instituted by any Holder of
Securities for the enforcement of the payment of the principal of, or premium,
if any, or interest, if any, on, any Security on or after the due date expressed
in such Security.
ARTICLE VII.
CONCERNING THE TRUSTEE
SECTION 7.1. Duties and Responsibilities of the Trustee; During Default; Prior to Default. With respect to the Holders of any series of Securities issued hereunder, the Trustee, prior to the occurrence of an Event of Default with respect to the Securities of that series and after the curing or waiving of all Events of Default which may have occurred with respect to such series, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. In case an Event of Default with respect to the Securities of a series has occurred (which has not been cured or waived) the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to the Securities of such series and after the curing or waiving of all such Events of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such statements, certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of Securities pursuant to Section 6.9 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that the repayment of such funds or adequate indemnity against such liability is not reasonably assured to it.
SECTION 7.2. Certain Rights of the Trustee. Subject to Section 7.1:
(a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, Officers' Certificate or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, note, coupon, security or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuer mentioned herein shall be sufficiently evidenced by an Officers' Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any resolution of the Board of Directors may be evidenced to the Trustee by a copy thereof certified by the secretary or any assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any advice or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after the curing or waiving of all Events of Default, the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture, note, coupon, security or other paper or document unless requested in writing so to do by the Holders of not less than a majority in aggregate principal amount of the Securities of all series affected then Outstanding; provided that, if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable indemnity against such expenses or liabilities as a condition to proceeding; the reasonable expenses of every such investigation shall be paid by the Issuer or, if paid by the Trustee or any predecessor Trustee, shall be repaid by the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys not regularly in its employ and the Trustee shall not be responsible for any misconduct or negligence on the part of any such agent or attorney appointed with due care by it hereunder.
SECTION 7.3. Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof. The recitals contained herein and in the Securities, except the certificates of authentication, shall be taken as the statements of the Issuer, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representation as to the validity or sufficiency of this Indenture or of the Securities. The Trustee shall not be accountable for the use or application by the Issuer of any of the Securities or of the proceeds thereof.
SECTION 7.4. Trustee and Agents May Hold Securities; Collections, etc. The Trustee, any Paying Agent, Securities Registrar, Authenticating Agent or any agent of the Issuer or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not the Trustee or such agent, and, subject to Sections 7.8 and 7.13, if operative, may otherwise deal with the Issuer and receive, collect, hold and retain collections from the Issuer with the same rights it would have if it were not the
Trustee, Paying Agent, Securities Registrar, Authenticating Agent or such agent.
SECTION 7.5. Moneys Held by Trustee. Subject to the provisions of Section 4.4, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by mandatory provisions of law. The Trustee shall have no liability for interest on money it receives and holds in trust except as specifically provided herein.
SECTION 7.6. Compensation and Indemnification of Trustee and Its Prior Claim. The Issuer covenants and agrees to pay the Trustee from time to time, and the Trustee shall be entitled to such compensation as the Issuer and the Trustee may from time to time agree in writing for all services rendered by the Trustee hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) and the Issuer covenants and agrees to pay or reimburse the Trustee and each predecessor trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by or on behalf of it in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel and of all agents and other Persons not regularly in its employ) except any such expense, disbursement or advance as may arise from its negligence or bad faith. The Issuer also covenants to indemnify the Trustee and each predecessor trustee for, and hold it harmless against, any loss, liability, damage, claims or expense, including taxes (other than taxes measured by the income of the Trustee or otherwise applicable to the Trustee for operations outside the scope of this Indenture) incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of this Indenture or the trusts hereunder and the performance of its duties hereunder, including the costs and expenses of defending itself against or investigating any claim of liability in connection with the exercise or performance of any of its powers or duties hereunder. The obligations of the Issuer under this Section to compensate and indemnify the Trustee and each predecessor trustee and to pay or reimburse the Trustee and each predecessor trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of this Indenture. Such additional indebtedness shall be a lien prior to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the Holders of particular Securities.
SECTION 7.7. Right of Trustee to Rely on Officers' Certificate, etc. Subject to Sections 7.1 and 7.2, whenever in the administration of the trusts of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officers' Certificate delivered to the Trustee, and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken,' suffered or omitted by it under the provisions of this Indenture upon the good faith thereof.
SECTION 7.8. Qualification of Trustee; Conflicting Interests. The Trustee for the Securities of any series issued hereunder shall be subject to the provisions of Section 310(b) of the Trust Indenture Act during the period of time provided for therein. In determining whether the Trustee has a conflicting interest as defined in Section 310(b) of the Trust Indenture Act with respect to the Securities of any series, there shall be excluded this Indenture with respect to Securities of any particular series of Securities other than that series. Nothing herein shall prevent the Trustee from filing with the Commission the application referred to in the penultimate paragraph of Section 310(b) of the Trust Indenture Act.
SECTION 7.9. Persons Eligible for Appointment as Trustee. There shall at all times be a Trustee hereunder for each series of Securities, which shall be at all times either
(i) a corporation organized and doing business under the laws of the United States of America or of any State or territory or the District of Columbia, authorized under such laws to exercise corporate trust powers and subject to supervision or examination by Federal, State, territory or District of Columbia authority, or
(ii) a corporation or other Person organized and doing business under the laws of a foreign government that is permitted to act as Trustee pursuant to a rule, regulation or order of the Commission, authorized under such laws to exercise corporate trust powers, and subject to supervision or examination by authority of such foreign government or a political subdivision thereof substantially equivalent to supervision or examination applicable to United States institutional trustees,
in either case having a combined capital and surplus of at least $50,000,000. If such corporation publishes reports of condition at least annually, pursuant to law or to requirements of the aforesaid supervising or examining authority, then for the purposes of this Section 7.9, the combined capital and surplus of such corporation shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. If at any time the Trustee for the Securities of any series shall cease to be eligible in accordance with the provisions of this Section 7.9, it shall resign immediately in the manner and with the effect hereinafter specified in this Article. Neither the Issuer nor any Person directly or indirectly controlling, controlled by, or under common control with the Issuer shall serve as Trustee for the Securities of any series issued hereunder.
SECTION 7.10. Resignation and Removal; Appointment of Successor Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at any time
resign by giving written notice of resignation to the Issuer and by mailing
notice thereof by first-class mail to Holders of the Securities at their last
addresses as they shall appear on the Security Register. Upon receiving such
notice of resignation, the Issuer shall promptly appoint a successor trustee or
trustees by written instrument in duplicate, executed by authority of the Board
of Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee or trustees. If no successor
trustee shall have been so appointed and have accepted appointment within 30
days after the mailing of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee, or any Securityholder who has been a bona fide Holder of a Security or
Securities for at least six months may, subject to the provisions of Section
6.12, on behalf of himself and all others similarly situated, petition any such
court for the appointment of a successor trustee. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe, appoint a
successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section 310(b) of the Trust Indenture Act after written request therefor by the Issuer or by any Securityholder who has been a bona fide Holder of a Security or Securities for at least six months unless the Trustee's duty to resign is stayed in accordance with the provisions of Section 310(b) of the Trust Indenture Act; or
(ii) the Trustee shall cease to be eligible in accordance with the provisions of Section 7.9 and shall fail to resign after written request therefor by the Issuer or by any Securityholder; or
(iii) the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent; or a receiver or liquidator of the Trustee or of its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any case, the Issuer may remove the Trustee and appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors of the Issuer, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 6.12, any Securityholder who has been a bona fide Holder of a Security or Securities for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding may at any time remove the Trustee and
appoint a successor trustee by delivering to the Trustee so removed, to the
successor trustee so appointed and to the Issuer the evidence provided for in
Section 8.1 of the action in that regard taken by the Securityholders.
(d) No resignation or removal of the Trustee and no appointment of a successor trustee pursuant to any of the provisions of this Section 7.10 shall become effective until acceptance of appointment by the successor trustee as provided in Section 7.11.
SECTION 7.11. Acceptance of Appointment by Successor Trustee. Any successor
trustee appointed as provided in Section 7.10 shall execute, acknowledge and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as trustee hereunder; but nevertheless, on the written
request of the Issuer or of the successor trustee, upon payment of all amounts
due to the Trustee under Section 7.6, the Trustee ceasing to act shall, subject
to Section 4.4, pay over to the successor trustee all moneys at the time held by
it hereunder and shall execute and deliver an instrument transferring to such
successor trustee all such rights, powers, duties and obligations. Upon request
of any successor trustee, the Issuer shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any Trustee ceasing to act, shall,
nevertheless, retain a prior lien upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 7.6.
No successor trustee shall accept appointment as provided in this Section 7.11 unless at the time of such acceptance such successor trustee shall be qualified under the provisions of Section 7.8 and eligible under the provisions of Section 7.9.
Upon acceptance of appointment by any successor trustee as provided in this
Section 7.11, the Issuer shall mail notice thereof by first-class mail to the
Holders of Securities at their last addresses as they shall appear on the
Security Register. If the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called for by the
preceding sentence may be combined with the notice called for by Section 7.10.
If the Issuer fails to mail such notice within 10 days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Issuer.
SECTION 7.12. Merger, Conversion, Consolidation or Succession to Business of Trustee. Any corporation in which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to substantially all of the corporate trust business of the Trustee, shall be the successor of the trustee hereunder, provided that such corporation shall be qualified under the provisions of Section 7.8 and eligible under the provisions of Section 7.9, without the execution or filing of any paper or any further act (including the giving of any notice to Securityholders) on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture any of the Securities shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee and deliver such Securities so authenticated; and, in case at that time any of the Securities shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor trustee; and in all such cases such certificate shall have the full force which it is anywhere in the Securities or in this Indenture provided for the certificate of authentication of the Trustee.
SECTION 7.13. Preferential Collection of Claims Against the Issuer. (a) Subject to the provisions of this Section, if the Trustee shall be or shall become a creditor, directly or indirectly, secured or unsecured, of the Issuer or any other obligor of the Securities within three months prior to a default, as defined in subsection (c) of this Section, or subsequent to such a default, then, unless and until such default shall be cured, the Trustee shall set apart and hold in
a special account for the benefit of the Trustee individually, the Holders of the Securities and the holders of other indenture securities (as defined in this Section):
(1) an amount equal to any and all reductions in the amount due and owing upon any claim as such creditor in respect of principal or interest, effected after the beginning of such three months' period and valid as against the Issuer and its other creditors, except any such reduction resulting from the receipt or disposition of any property described in subsection (a)(2) of this Section, or from the exercise of any right of set-off which the Trustee could have exercised if a petition in bankruptcy had been filed by or against the Issuer upon the date of such default; and
(2) all property received by the Trustee in respect of any claim as such creditor, either as security therefor, or in satisfaction or composition thereof, or otherwise, after the beginning of such three months' period, or an amount equal to the proceeds of any such property, if disposed of, subject, however, to the rights, if any, of the Issuer and its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account of any such claim by any Person (other than Issuer) who is liable thereon, (ii) the proceeds of a bona fide sale of any such claim by the Trustee to a third person, and (iii) distributions made in cash, securities or other property in respect of claims filed against the Issuer in bankruptcy or receivership or in the proceedings for reorganization pursuant to the Federal Bankruptcy Code or applicable state law;
(B) to realize, for its own account, upon any property held by it as security for any such claim, if such property was so held prior to the beginning of such three months' period;
(C) to realize, for its own account, but only to the extent of the claim hereinafter mentioned, upon any property held by it as security for any such claim, if such claim was created after the beginning of such three months' period and such property was received as security therefor simultaneously with the creation thereof, and if the Trustee shall sustain the burden of proving that at the time such property was so received the Trustee has no reasonable cause to believe that a default as defined by subsection (c) of this Section would occur within three months; or
(D) to receive payment on any claim referred to in paragraph (B) or
(C), against the release of any property held as security for such claim as
provided in such paragraph (B) or (C), as the case may be, to the extent of
the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted after the beginning of such three months' period for property held as security at the time of such substitution shall, to the extent of the fair value of the property released, have the same status as the property released, and, to the extent that any claim referred to in any of such paragraphs is created in renewal of or in substitution for or for the purpose of repaying or refunding any pre-existing claim of the Trustee as such creditor, such claim shall have the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property held in such special account and the proceeds thereof shall be apportioned between the Trustee, the Holders of the Securities and the holders of other indenture securities in such manner that the Trustee, such Holders and the holders of other indenture securities realize, as a result of payments from such special account and payments of dividends on claims filed against the Issuer in bankruptcy or receivership or in proceedings for reorganization pursuant to the Federal Bankruptcy Code or applicable State law, the same percentage of their respective claims, figured before crediting to the claim of the Trustee anything on account of the receipt by it from the Issuer of the funds and property in such special account and before crediting to the respective claims of the Trustee, Holders of the Securities and the holders of other indenture securities dividends on claims filed against the Issuer in bankruptcy or receivership or in proceedings for reorganization pursuant to the Federal Bankruptcy Code or applicable State law, but after crediting thereon receipts on account of the indebtedness represented by their respective claims from all sources other than from such dividends and from the funds and property so held in such special account. As used in this paragraph, with respect to any claim, the term "dividends" shall include any distribution with respect to such claim, in bankruptcy or receivership or in proceedings for reorganization pursuant to the Federal Bankruptcy Code or applicable State law, whether such distribution is made in cash, securities or other property, but shall not include any such distribution with respect to the secured portion, if any, of such claim. The court in which such bankruptcy, receivership or proceeding for reorganization is pending shall have jurisdiction (i) to apportion between the Trustee, the Holders of Securities and the holders of other indenture securities, in accordance with the provisions of this paragraph, the funds and property held in such special account and the proceeds thereof, or (ii) in lieu of such apportionment, in whole or in part, to give to the provisions of this paragraph due consideration in determining
the fairness of the distributions to be made to the Trustee, the Holders of Securities and the holders of other indenture securities with respect to their respective claims, in which event it shall not be necessary to liquidate or to appraise the value of any securities or other property held in such special account or as security for any such claim, or to make a specific allocation of such distribution as between the secured and unsecured portions of such claims, or otherwise to apply the provisions of this paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the beginning of such three months' period shall be subject to the provisions of this subsection (a) as though such resignation or removal had not occurred. If any Trustee has resigned or been removed prior to the beginning of such three months' period, it shall be subject to the provisions of this subsection (a) if and only if the following conditions exist:
(i) the receipt of property or reduction of claim which would have given rise to the obligation to account, if such Trustee had continued as trustee, occurred after the beginning of such three months' period; and
(ii) such receipt of property or reduction of claim occurred within three months after such resignation or removal.
(b) There shall be excluded from the operation of this Section a creditor relationship arising from
(1) the ownership or acquisition of securities issued under any indenture, or any security or securities having a maturity of one year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of competent jurisdiction or by this Indenture for the purpose of preserving any property which shall at any time be subject to the lien of this Indenture or of discharging tax liens or other prior liens or encumbrances thereon, if notice of such advance and of the circumstances surrounding the making thereof is given to the Holders of the applicable series of Securities at the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in the capacity of trustee under an indenture, transfer agent, registrar, custodian, paying agent, fiscal agent or depositary, or other similar capacity;
(4) an indebtedness created as a result of services rendered or premises rented or an indebtedness created as a result of goods or securities sold in a cash transaction as defined in subsection (c)(3) of this Section;
(5) the ownership of stock or of some other securities of a corporation organized under the provisions of Section 25(a) of the Federal Reserve Act, as amended, which is directly or indirectly a creditor of the Issuer; or
(6) the acquisition, ownership, acceptance or negotiation of any drafts, bills of exchange, acceptances or obligations which fall within the classification of self-liquidating paper as defined in subsection (c)(4) of this Section.
(c) As used in this Section:
(1) the term "default" shall mean any failure to make payment in full of the principal of or interest upon any of the Securities of the applicable series or upon the other indenture securities when and as such principal or interest becomes due and payable;
(2) the term "other indenture securities" shall mean securities upon which the Issuer is an obligor (as defined in the Trust Indenture Act) outstanding under any other indenture (i) under which the Trustee is also trustee, (ii) which contains provisions substantially similar to the provisions of subsection (a) of this Section, and (iii) under which a default exists at the time of the apportionment of the funds and property held in said special account;
(3) the term "cash transaction" shall mean any transaction in which full payment for goods or securities sold is made within seven days after delivery of the goods or securities in currency or in checks or other orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" shall mean any draft, bill of exchange, acceptance or obligation which is made, drawn, negotiated or incurred by the Issuer for the purpose of financing the purchase, processing, manufacture, shipment, storage or sale of goods, wares or merchandise and which is secured by documents evidencing title to, possession of, or a lien upon the goods, wares or merchandise or the receivables or proceeds arising from the sale of goods, wares or merchandise previously constituting the security, provided that the security is received by the Trustee simultaneously with the creation of the creditor relationship with the Issuer arising from the making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation; and
(5) the term "Issuer" shall mean any obligor upon the Securities.
SECTION 7.14. Authenticating Agent. So long as any Securities remain Outstanding, if the Corporate Trust Office of the Trustee is not located in the Borough of Manhattan, The City of New York, or otherwise upon an Issuer Request, there shall be an authenticating agent (the "Authenticating Agent") appointed, for such period as the Issuer shall elect, by the Trustee to act as its agent on its behalf and subject to its direction in connection with the authentication and delivery of Securities. Securities authenticated by such Authenticating Agent shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by such Trustee. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or to the Trustee's Certificate of Authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a Certificate of Authentication executed on behalf of such Trustee by such Authenticating Agent. Such Authenticating Agent shall at all times be a corporation organized and doing business under the laws of the United States of America or of any State or of the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $20,000,000 and subject to supervision or examination by Federal, State or District of Columbia authority. If the Corporate Trust Office of the Trustee is not located in the Borough of Manhattan, The City of New York, the Authenticating Agent shall have its principal office and place of business in the Borough of Manhattan, The City of New York.
Any corporation into which any Authenticating Agent may be merged or converted, or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which any Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency business of any Authenticating Agent, shall continue to be the Authenticating Agent without the execution or filing of any paper or any further act on the part of the Trustee or such Authenticating Agent.
Any Authenticating Agent may at any time, and if it shall cease to be eligible shall, resign by giving written notice of resignation to the Trustee and to the Issuer. The Trustee may at any time terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Issuer. Upon receiving such a notice of resignation or upon such a termination, or in case at any time any Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 7.14, the Trustee shall upon Issuer Request appoint a successor Authenticating Agent, and the Issuer shall provide notice of such appointment to all Holders of Securities in the manner and to the extent provided in Section 13.4. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if originally named as Authenticating Agent herein. The Issuer agrees to pay or to cause to be paid to the Authenticating Agent from time to time reasonable compensation for its services. The Authenticating Agent shall have no responsibility or liability for any action taken by it as such in good faith at the direction of the Trustee.
ARTICLE VIII.
CONCERNING THE HOLDERS OF SECURITIES
SECTION 8.1. Action by Holders. Whenever in this Indenture it is provided that the Holders of a specified percentage in aggregate principal amount of the Securities of any series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action) the fact that at the time of taking any such action the Holders of such specified percentage have joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by Holders in person or by agent or proxy appointed in writing, or (b) by the record of Holders voting in favor thereof at any meeting of such Holders duly called and held in accordance with the provisions of Article IX or (c) by a combination of such instrument or instruments and any such record of such a meeting of Holders. The Issuer may (but shall not be required to) set a record date for purposes of determining the identity of Securityholders entitled to vote or consent to any action by vote or consent authorized or permitted under this Indenture, which record date shall be the later of 10 days prior to the first solicitation of such consent or the date of the most recent list of Holders furnished to the Trustee pursuant to Section 5.1 of this Indenture prior to such solicitation. If a record date is fixed, those Persons who were Securityholders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to take such action by vote or consent or to revoke any vote or consent previously given, whether or not such Persons continue to be Holders after such record date.
SECTION 8.2. Proof of Execution of Instruments by Holders of Securities. Subject to Sections 7.1, 7.2 and 9.5, the execution of any instrument by a Holder of a Security or his agent or proxy may be proved in any reasonable manner that the Trustee deems sufficient, including, without limitation, in the following manner:
The fact and date of the execution by any such Person of any instrument may be proved by the certificate of any notary public or other officer authorized to take acknowledgments of deeds, that the Person executing such instrument acknowledged to him the execution thereof, or by an affidavit or written statement of a witness to such execution. Where such execution is by an officer of a corporation or association or a member of a partnership on behalf of such corporation, association or partnership, as the case may be, or by any other Person acting in a representative capacity, such certificate, affidavit or written statement shall also constitute sufficient proof of his authority.
The ownership of Securities shall be proved by the Securities Register or by a certificate of the Securities Registrar.
The record of any Holders' meeting shall be proved in the manner provided in Section 9.6.
SECTION 8.3. Holders to be Treated as Owners. The Issuer, the Trustee and any agent of the Issuer or the Trustee may deem and treat the Person in whose name any Security shall be registered upon the Security Register as the absolute owner of such Security (notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of principal of, and premium, if any, and (subject to Section 3.8) interest, if any, on, such Security, and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Issuer, the Trustee nor any agent of the Issuer or the Trustee shall be affected by notice to the contrary. All such payments so made to any Holder for the time being, shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon such Security.
None of the Issuer, the Trustee or any agent of the Issuer or the Trustee shall have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interest of a Global Security, or for maintaining, supervising or reviewing any records relating to such beneficial ownership interest. Notwithstanding the foregoing, with respect to any Global Security, nothing herein shall prevent the Issuer or the Trustee or any agent of the Issuer or the Trustee from giving effect to any written certification, proxy or other authorization furnished by any Depository (or its nominee), as a Holder, with respect to such Global Security or impair, as between such Depository and owners of beneficial interests in such Global Security, the operation of customary practices governing the exercise of the right of such Depository (or its nominee) as holder of such Global Security.
SECTION 8.4. Securities Owned by Issuer Deemed Not Outstanding. In determining whether the Holders of the requisite aggregate principal amount of Securities of any or all series have concurred in any direction, consent or waiver under this Indenture, Securities which are owned by the Issuer or any other obligor on the Securities with respect to which such determination is being made or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer or any other obligor on the Securities with respect to which such determination is being made shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent or waiver only Securities
which the Trustee knows are so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Securities and that the pledgee is not the Issuer or any other obligor upon the Securities or any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer or any other obligor on the Securities. In case of a dispute as to such right, the advice of counsel shall be full protection in respect of any decision made by the Trustee in accordance with such advice. Upon request of the Trustee, the Issuer shall furnish to the Trustee promptly an Officers' Certificate listing and identifying all Securities, if any, known by the Issuer to be owned or held by or for the account of any of the above- described Persons; and, subject to Sections 7.1 and 7.2, the Trustee shall be entitled to accept such Officers' Certificate as conclusive evidence of the facts therein set forth and of the fact that all Securities not listed therein are Outstanding for the purpose of any such determination.
SECTION 8.5. Right of Revocation of Action Taken. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 8.1, of the taking of any action by the Holders of the percentage in aggregate principal amount of the Securities of any or all series, as the case may be, specified in this Indenture in connection with such action, any Holder of a Security, the number, letter or other distinguishing symbol of which is shown by the evidence to be included in the Securities the Holders of which have consented to such action, may, by filing written notice at the Corporate Trust Office and upon proof of holding as provided in this Article, revoke such action so far as concerns such Security. Except as aforesaid, any such action taken by the Holder of any Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Security and of any Securities issued in exchange or substitution therefor, irrespective of whether or not any notation in regard thereto is made upon any such Security or such other Security. Any action taken by the Holders of the percentage in aggregate principal amount of the Securities of any or all series, as the case may be, specified in this Indenture in connection with such action shall be conclusively binding upon the Issuer, the Trustee and the Holders of all the Securities affected by such action.
ARTICLE IX.
HOLDERS' MEETINGS
SECTION 9.1. Purposes of Meetings. A meeting of Holders of Securities of any or all series may be called at any time and from time to time pursuant to the provisions of this Article for any of the following purposes:
(1) to give any notice to the Issuer or to the Trustee for the Securities of such series, or to give any directions to the Trustee, or to consent to the waiving of any default hereunder and its consequences, or to take any other action authorized to be taken by Holders pursuant to any of the provisions of Article VI;
(2) to remove the Trustee and nominate a successor Trustee pursuant to the provisions of Article VII;
(3) to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 10.2; or
(4) to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of the Securities of any one or more or all series, as the case may be, under any other provision of this Indenture or under applicable law.
SECTION 9.2. Call of Meetings by Trustee. The Trustee may at any time call a meeting of Holders of Securities to take any action specified in Section 9.1, to be held at such time and at such place in the Borough of Manhattan, The City of New York, or such other Place of Payment, as the Trustee shall determine. Notice of every meeting of the Holders of Securities, setting forth the time and the place of such meeting, and in general terms the action proposed to be taken at such meeting, shall be given to Holders of Securities of the particular series in the manner and to the extent provided in Section 13.4. Such notice shall be given not less than 20 nor more than 90 days prior to the date fixed for the meeting.
SECTION 9.3. Call of Meetings by Issuer or Holders. In case at any time the Issuer, pursuant to a resolution of its Board of Directors, or the Holders of at least 10% in aggregate principal amount of the Outstanding Securities of any or all series, as the case may be, shall have requested the Trustee to call a meeting of Holders of Securities of any or all series, as the case may be, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee for such series shall not have given the notice of such meeting within 20 days after receipt of such request, then the Issuer or such Holders may determine the time and the place in the Borough of Manhattan or other Place of Payment for such
meeting and may call such meeting to take any action authorized in Section 9.1, by giving notice thereof as provided in Section 9.2.
SECTION 9.4. Qualifications for Voting. To be entitled to vote at any meeting of Holders a Person shall be (a) a Holder of one or more outstanding Securities with respect to which such meeting is being held or (b) a Person appointed by an instrument in writing as proxy by such Holder. The only Persons who shall be entitled to be present or to speak at any meeting of Holders shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any representatives of the Issuer and its counsel.
SECTION 9.5. Regulations. Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders of the Securities in regard to proof of the holding of Securities and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Issuer or by Holders of Securities as provided in Section 9.3, in which case the Issuer or the Holders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting, shall be elected by majority vote of the meeting.
Subject to Section 8.4, at any meeting each Holder of Securities with respect to which such meeting is being held or proxy therefor shall be entitled to one vote for each $1,000 principal amount (in the case of Original Issue Discount Securities, such principal amount to be determined as provided in the definition of "Outstanding") of Securities held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any such Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote other than by virtue of Securities held by him or instruments in writing aforesaid duly designating him as the Person to vote on behalf of other Holders. At any meeting of Holders, the presence of Persons holding or representing Securities with respect to which such meeting is being held in an aggregate principal amount sufficient to take action on the business for the transaction of which such meeting was called shall constitute a quorum, but, if less than a quorum is present, the Persons holding or representing a majority in aggregate principal amount of such Securities represented at the
meeting may adjourn such meeting with the same effect, for all intents and purposes, as though a quorum had been present. Any meeting of Holders of Securities with respect to which a meeting was duly called pursuant to the provisions of Section 9.2 or Section 9.3 may be adjourned from time to time by Persons holding or representing a majority in aggregate principal amount of such Securities represented at the meeting, present, whether or not constituting a quorum, and the meeting may be held as so adjourned without further notice.
SECTION 9.6. Voting. The vote upon any resolution submitted to any meeting of Holders of Securities with respect to which such meeting is being held shall be by written ballots on which shall be subscribed the signatures of such Holders or of their representatives by proxy and the serial number or numbers of the Securities held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of holders shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more Persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was mailed as provided in Section 9.2. The record shall show the serial numbers of the Securities voting in favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Issuer and the other to the Trustee to be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the matters therein stated.
SECTION 9.7. No Delay of Rights by Reason of Meeting. Nothing in this Article contained shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Holders or any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or to the Holders under any of the provisions of this Indenture or of the Securities of any series.
ARTICLE X.
SUPPLEMENTAL INDENTURES
SECTION 10.1. Supplemental Indentures Without Consent of Securityholders. The Issuer, when authorized by a resolution of its Board of Directors, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as in force at the date of the execution thereof) for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the Securities any property or assets;
(b) to evidence the succession of another corporation to the Issuer, or successive successions, and the assumption by the successor corporation of the covenants, agreements and obligations of the Issuer under this Indenture and the Securities;
(c) to add to the covenants of the Issuer such further covenants, restrictions, conditions or provisions as its Board of Directors shall consider to be for the protection of the Holders of any series of Securities, and to make the occurrence and continuance of a default in any such additional covenants, restrictions, conditions or provisions an Event of Default permitting the enforcement of all or any of the several remedies provided in this Indenture as herein set forth; provided that in respect of any such additional covenant, restriction, condition or provision such supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such an Event of Default or may limit the remedies available to the Trustee upon such an Event of Default or may limit the right of the Holders of a majority in aggregate principal amount of the Securities of such series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture; or to make such other provisions in regard to matters or questions arising under this Indenture or under any supplemental indenture as the Board of Directors may deem necessary or desirable and which shall not materially adversely affect the interests of the Holders of any Securities;
(e) to establish the form or terms of Securities of any series as permitted by Section 3.1;
(f) to provide for the issuance under this Indenture of Securities in coupon form (including Securities registrable as to principal only), to provide for interchangeability thereof with Securities in registered form of the same series and to make all appropriate changes for such purpose, or to permit or facilitate the issuance of Securities of any series in uncertificated form;
(g) to provide for the issuance under this Indenture of Securities denominated or payable in currency other than Dollars and to make all appropriate changes for such purpose;
(h) to evidence and provide for the acceptance of appointment hereunder by a successor trustee with respect to the Securities, pursuant to Section 7.11, or to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee;
(i) to modify any restrictions on and procedures for resales of Securities of any series that is not registered pursuant to the Securities Act to reflect any change in applicable law or regulation (or the interpretation thereof) or in practices relating to the resale or transfer of restricted securities generally and to modify any legends placed on such securities to reflect such restrictions and procedures;
(j) to add to or change or eliminate any provision of this Indenture as shall be necessary or desirable to conform to provisions of the Trust Indenture Act as at the time in effect, provided that such action shall not materially adversely affect the interests of the Holders of the Securities of any series; and
(k) otherwise to change or eliminate any of the provisions of this Indenture; provided, however, that any such change or elimination may only be effected when no Outstanding Security of any series created prior to the execution of such supplemental indenture is entitled to the benefit of such provision.
The Trustee is hereby authorized to join with the Issuer in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the Trustee shall not be obligated to enter into any such
supplemental indenture which adversely affects the Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section may be executed without the consent of the Holders of any of the Securities at the time Outstanding, notwithstanding any of the provisions of Section 10.2.
SECTION 10.2. Supplemental Indentures With Consent of Securityholders. With the consent (evidenced as provided in Article VIII) of the Holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding of all series affected by such supplemental indenture (voting as one class), the Issuer, when authorized by a resolution of its Board of Directors, and the Trustee may, from time to time and at any time, enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as in force at the date of execution thereof) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of the Securities of each such series; provided that no such supplemental indenture shall (a) change the Stated Maturity of any Security of such series, or reduce the principal amount thereof or the amount of any premium thereon, or reduce the rate, extend the time of payment or change the method of calculation of interest thereon, or reduce any amount payable on redemption thereof or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon an acceleration with respect thereto pursuant to Section 6.1 or the amount thereof provable in bankruptcy pursuant to Section 6.2, or impair or adversely affect the right of any Securityholder to institute suit for the payment thereof or, if the Securities provide therefor, any right of repayment at the option of the Securityholder, without the consent of the Holder of each Security of such series so affected, or (b) reduce the aforesaid percentage of the principal amount of Securities of such series, the consent of the Holders of which is required for any such supplemental indenture or any waiver of any obligations of the Issuer under this Indenture, without the consent of the Holders of each Security of such series so affected, or (c) subordinate the indebtedness evidenced by the Securities of such series to any indebtedness of the Issuer without consent of the Holder of each Security of such series so affected.
Upon the request of the Issuer, accompanied by a Board Resolution authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Securityholders as aforesaid and other documents, if any, required by Section 8.1, the Trustee shall join with the Issuer in the execution of such supplemental indenture unless such supplemental indenture adversely affects the Trustee's own rights, duties or immunities under this Indenture or otherwise,
in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
SECTION 10.3. Notice of Supplemental Indenture. Promptly after the execution by the Issuer and the Trustee of any supplemental indenture pursuant to the provisions of Section 10.2, the Issuer shall mail a notice thereof by first-class mail to the Holders of Securities of each series affected thereby at their addresses as they shall appear on the Security Register, setting forth in general terms the substance of such supplemental indenture. Any failure of the Issuer to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
SECTION 10.4. Effect of Supplemental Indenture. Upon the execution of any supplemental indenture pursuant to the provisions of this Article, this Indenture shall be and be deemed to be modified and amended in accordance therewith, but only with regard to the Securities of each series affected by such supplemental indenture, and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Trustee, the Issuer and the Holders of any Securities of such series affected thereby shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes with regard to the Securities of such series.
SECTION 10.5. Documents To Be Given to Trustee. The Trustee, subject to the provisions of Sections 7.1 and 7.2, shall receive an Officers' Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant to this Article complies with the applicable provisions of this Indenture.
SECTION 10.6. Notation on Securities in Respect of Supplemental Indentures. Securities of any series affected by
any supplemental indenture which are authenticated and delivered after the execution of such supplemental indenture pursuant to the provisions of this Article may bear a notation in form approved by the Issuer and the Trustee as to any matter provided for in such supplemental indenture. If the Issuer shall so determine, new Securities of any series so modified as to conform, in the opinion of the Issuer, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Issuer, authenticated by the Trustee and delivered in exchange for the Securities of such series then Outstanding.
ARTICLE XI.
CONSOLIDATION, MERGER OR SALE
SECTION 11.1. Issuer May Consolidate, Merge or Sell on Certain Terms. The Issuer will not consolidate with, or merge into, or sell all or substantially all of its assets to, any Person, except that the Issuer may permit any Person to be merged into the Issuer or may, subject to Section 11.2, consolidate with or merge into, or sell all or substantially all of its assets to, any solvent Person organized in the United States of America (substantially all of the assets of which are located within the United States of America); provided that, immediately after giving effect to such transaction, no Event of Default shall have occurred and be continuing under this Indenture.
SECTION 11.2. Conditions to Consolidation or Merger, etc. The Issuer
covenants and agrees that it will not consolidate with or merge into any other
corporation, or sell all or substantially all of its assets, unless, and the
Issuer covenants and agrees that any such consolidation, merger or sale shall be
upon the condition that, the due and punctual payment of the principal of, and
premium, if any, and interest, if any, on, all the Securities of each series
according to their tenor, and the due and punctual performance and observance of
all the terms, covenants and conditions of this Indenture to be performed or
observed by the Issuer, shall, by a supplemental indenture hereto pursuant to
Section 10.1(b), be expressly assumed by the successor corporation, if other
than the Issuer, formed by or surviving any such consolidation or merger or to
which such sale, transfer or lease shall have been made, as fully and
effectually as if such successor corporation had been an original party to this
Indenture.
Every such successor corporation, if other than the Issuer, upon executing such supplemental indenture, in form satisfactory to the Trustee, shall succeed to and be substituted for the Issuer with the same effect as if it had been an original party hereto, and shall possess and from time to time may exercise each and every power of the Issuer under this Indenture, and, in the case of any such sale or transfer, the Person named as the "Issuer" in the first paragraph of this Indenture or any successor corporation which shall theretofore have become such in the manner prescribed in this Article shall be released from its liability hereunder and as obligor on all the Securities. Such successor corporation thereupon may execute and deliver Securities under this Indenture, either in the name of the Issuer (unless the Issuer shall have been released from its liability hereunder and as obligor on the Securities as provided in the next preceding sentence) or of such successor corporation, and any act or proceeding required by this Indenture to be done or performed by any board or
officer of the Issuer may be done or performed with like force and effect by the comparable board or officer of such successor corporation. Such change in phraseology and form (but not in substance) may be made in the Securities as may be appropriate in view of such consolidation, merger, sale, transfer or lease. All the Securities when issued by such successor corporation shall in all respects have the same legal priority as the Securities theretofore or thereafter authenticated, issued and delivered in accordance with the terms of this Indenture.
SECTION 11.3. Documents and Opinion To Be Furnished to the Trustee. The Issuer covenants and agrees that if it shall consolidate with or merge into any other corporation, or if it shall sell all or substantially all of its assets, the Issuer will promptly furnish to the Trustee:
(1) An Officers' Certificate stating that the conditions and covenants of the Issuer contained in Section 11.2 have been complied with;
(2) An executed counterpart of any instrument or instruments executed by the Issuer in the performance of such conditions and covenants; and
(3) An Opinion of Counsel stating that in the opinion of such counsel such conditions and covenants have been complied with and that any instrument or instruments executed by the Issuer in the performance of such conditions and covenants comply with the requirements of such conditions and covenants.
The Trustee shall receive an Opinion of Counsel as conclusive evidence that any such consolidation, merger or sale, any such assumption and any such supplemental indenture comply with this Article.
ARTICLE XII.
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 12.1. Satisfaction and Discharge of Securities of Any Series. Except as otherwise provided for the Securities of any series established pursuant to Section 3.1(16), the Issuer shall be deemed to have satisfied and discharged this Indenture with respect to the entire indebtedness on all the Outstanding Securities of any particular series, and the Trustee, at the expense of the Issuer and upon Issuer Request, shall execute proper instruments acknowledging such satisfaction and discharge, when
(1) either
(A) all Outstanding Securities of such series theretofore authenticated and delivered (other than (i) any Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.7 and (ii) Outstanding Securities of such series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer or discharged from such trust, as provided in Section 12.5) have been delivered to the Trustee for cancellation; or
(B) with respect to all Outstanding Securities of such series described in sub-clause (A) above (other than the Securities referred to in the parenthetical phrase thereof) not theretofore delivered to the Trustee for cancellation:
(i) the Issuer has irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds in trust an
amount (except as otherwise specified pursuant to Section 3.1 for
the Securities of such series) sufficient to pay and discharge
the entire indebtedness on all such Outstanding Securities of
such series for principal (and premium, if any) and interest to
the Stated Maturity or any Redemption Date as contemplated by
Section 12.3, as the case may be; or
(ii) the Issuer has irrevocably deposited or caused to be irrevocably deposited with the Trustee as obligations in trust such amount of Government Obligations as will, in a written opinion of independent public accountants delivered to the Trustee, together with the predetermined and certain income to accrue
thereon (without consideration of any reinvestment thereof), be sufficient to pay and discharge when due the entire indebtedness on all such Outstanding Securities of such series for unpaid principal (and premium, if any) and interest to the Stated Maturity or any Redemption Date as contemplated by Section 12.3, as the case may be;
(2) the Issuer has paid or caused to be paid all other sums payable with respect to the Outstanding Securities of such series including all fees due to the Trustee under Section 7.6;
(3) the Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the due satisfaction and discharge of this Indenture with respect to the entire indebtedness on all Outstanding Securities of any such series have been complied with; and
(4) if the Securities of such series are not to become due and payable at their Stated Maturity within one year of the date of such deposit or are not to be called for redemption within one year of the date of such deposit under arrangements satisfactory to the Trustee as of the date of such deposit, then the Issuer shall have given, not later than the date of such deposit, notice of such deposit to the Holders of the Securities of such series.
Upon the satisfaction of the conditions set forth in this Section 12.1 with
respect to all the Outstanding Securities of any series, the terms and
conditions with respect thereto set forth in this Indenture shall no longer be
binding upon, or applicable to, the Issuer; provided, however, that the Issuer
shall not be discharged from (a) any obligations under Sections 7.6 and 7.10 and
(b) any obligations under Section 3.6 or 3.7 and Section 5.1; and provided,
further, that in the event a petition for relief under the federal Bankruptcy
Code or a successor statute is filed with respect to the Issuer within 91 days
after the deposit, this Indenture with respect to the entire indebtedness on all
Securities of such series shall not be discharged, and in such event the Trustee
shall return such deposited funds or obligations as it is then holding to the
Issuer upon Issuer Request.
SECTION 12.2. Satisfaction and Discharge of Indenture. Upon compliance by the Issuer with the provisions of Section 12.1 as to the satisfaction and discharge of this Indenture with respect to each series of Securities issued hereunder and if the Issuer has paid or caused to be paid all other sums payable under this Indenture, this Indenture shall cease to be of any further effect (except as otherwise provided
herein). Upon Issuer Request and receipt of an Opinion of Counsel and an Officers' Certificate (and at the expense of the Issuer), the Trustee shall execute proper instruments acknowledging satisfaction and discharge of this Indenture.
Notwithstanding the satisfaction and discharge of this Indenture, any obligations of the Issuer under Sections 3.6, 3.7, 5.1, 7.6 and 7.10 and the obligations of the Trustee under Section 12.3 shall survive.
SECTION 12.3. Application of Trust Money. All money and obligations deposited with the Trustee pursuant to Section 12.1 shall be held irrevocably in trust and shall be made under the terms of an escrow trust agreement in form and substance satisfactory to the Issuer and the Trustee. Such money and obligations shall be applied by the Trustee, in accordance with the provisions of the Securities, this Indenture and such escrow trust agreement, to the payment, either directly or through any Paying Agent (including the Issuer acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal of (and premium, if any) and interest, if any, on the Securities for the payment of which such money and obligations have been deposited with the Trustee. If Securities of any series are to be redeemed prior to their Stated Maturity, whether pursuant to any optional redemption provisions or in accordance with any mandatory or optional sinking fund requirement, the Issuer shall give the required notice of redemption or shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer.
SECTION 12.4. Repayment of Moneys Held by Paying Agent. In connection with the satisfaction and discharge of this Indenture with respect to Securities of any series, all moneys with respect to such series then held by any Paying Agent (and not required for such satisfaction and discharge) shall, upon demand of the Issuer, be repaid to it or paid to the Trustee and thereupon such Paying Agent shall be released from all further liability with respect to such moneys.
SECTION 12.5. Return of Unclaimed Moneys Held by Trustee and Paying Agent. Any moneys deposited with or paid to the Trustee or any Paying Agent for the payment of the principal of, or premium, if any, or interest, if any, on, Securities of any series and which shall not be applied but shall remain unclaimed by the Holders of Securities of such series for two years after the date upon which such payment shall have become due and payable, shall be repaid to the Issuer by the Trustee on demand; and the Holder of any of such Securities entitled to receive such payment shall thereafter look only to the Issuer for the payment thereof; provided, however, that the Issuer or the Trustee, before making any such repayment, shall at the expense of the Issuer cause to be published once a week for two
successive weeks (in each case on any day of the week) in an Authorized Newspaper, or mail to each Holder, or both, a notice that said moneys have not been so applied and that after a date named therein any unclaimed balance of said moneys then remaining will be returned to the Issuer.
If the Trustee or Paying Agent is unable to apply any money in accordance with Section 12.3 by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company's obligations under this Indenture and the Securities shall be revived and reinstated as though no deposit had occurred pursuant to Section 12.1 until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 12.3; provided, however, that if the Company makes any payment of interest on or principal of any Security following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE XIII.
MISCELLANEOUS PROVISIONS
SECTION 13.1. Incorporators, Stockholders, Officers and Directors of Issuer Exempt from Individual Liability. No recourse under or upon any obligation, covenant or agreement contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall be had against any incorporator, as such, or against any past, present or future stockholder, officer or director, as such, of the Issuer or of any successor, either directly or through the Issuer or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities by the Holders thereof and as part of the consideration for the issue of such Securities.
SECTION 13.2. Provisions of Indenture for the Sole Benefit of Parties and Securityholders. Nothing in this Indenture or in the Securities, expressed or implied, shall give or be construed to give to any Person, other than the parties hereto and their successors and the Holders of the Securities, any legal or equitable right, remedy or claim under this Indenture or under any covenant or provision herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their successors and the Holders of the Securities.
SECTION 13.3. Successors and Assigns of Issuer Bound by Indenture. All the covenants, stipulations, promises and agreements in this Indenture contained by or on behalf of the Issuer shall bind its successors and assigns, whether so expressed or not.
SECTION 13.4. Notices to Holders; Waiver. Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed by first class mail, postage prepaid, to such Holders as their names and addresses appear on the Securities Register within the time prescribed. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance on such waiver. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed to any particular Holder, shall affect the sufficiency of such notice with respect to other Holders, and any notice which is mailed in the manner herein provided shall be conclusively
presumed to have been duly given. In case by reason of the suspension of publication of any Authorized Newspapers or by reason of any other cause it shall be impracticable to publish any notice to Holders otherwise required or permitted under this Indenture, then such notification as shall be given with the approval of the Trustee shall constitute sufficient notice to such Holders for every purpose hereunder.
SECTION 13.5. Addresses for Notices. Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Holders of Securities of any series on the Issuer may be given or served by registered mail addressed (until another address is filed by the Issuer with the Trustee) as follows: IDACORP, Inc., 1221 West Idaho Street, Boise, Idaho 83702-5627, Attention: General Counsel. Any notice, direction, request or demand by the Issuer or any Holders of Securities of any series to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if received at the Corporate Trust Office of such Trustee.
SECTION 13.6. Officers' Certificates and Opinions of Counsel; Statements to Be Contained Therein. Upon any application or demand by the Issuer to the Trustee to take any action under any of the provisions of this Indenture, the Issuer shall furnish to the Trustee an Officers' Certificate stating that all conditions precedent (including any covenants compliance with which constitutes a condition precedent) provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent (including any covenants compliance with which constitutes a condition precedent) have been complied with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture (other than annual certificates provided pursuant to Section 4.6) and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture shall include (a) a statement that the Person making such certificate or opinion has read such covenant or condition, (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based, (c) a statement that, in the opinion of such Person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with and (d) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may be based, insofar as it relates to legal matters, upon a certificate or opinion of or representations by counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous. Any certificate, statement or opinion of counsel may be based, insofar as it relates to factual matters, information with respect to which is in the possession of the Issuer, upon the certificate, statement or opinion of or representations by an officer or officers of the Issuer, unless such counsel knows that the certificate, statement or opinion or representations with respect to the matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of or representations by an accountant or firm of accountants in the employ of the Issuer, unless such officer or counsel, as the case may be, knows that the certificate or opinion or representations with respect to the accounting matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants filed with the Trustee shall contain a statement that such firm is independent.
SECTION 13.7. Separability Clause. In case any provision of this Indenture or of the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 13.8. Legal Holidays. In any case where the date of maturity of
interest on or principal of (or premium, if any, on) the Securities or the date
fixed for redemption or repayment of any Security shall not be a Business Day at
any Place of Payment with respect to Securities of that series, then
(notwithstanding any other provisions of this Indenture or of the Security)
payment of such interest on or principal of (or premium, if any, on) the
Securities of such series need not be made on such date in such Place of Payment
but may be made on the next succeeding Business Day in such Place of Payment
with the same force and effect as if made on the date of maturity or the date
fixed for redemption or repayment, as the case may be, and no interest shall
accrue for the period from and after such date by reason of such delayed
payment.
SECTION 13.9. Conflict of Any Provision of Indenture with Trust Indenture Act. If and to the extent that any provision of this Indenture limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the former provision shall control.
SECTION 13.10. Governing Law. This Indenture and Security shall be governed by and construed in accordance with the laws of the State of Idaho, except that the obligations, rights and remedies of the Trustee hereunder shall be determined under the laws of the State of New York.
SECTION 13.11. Counterparts. This Indenture may be executed in any number of counterparts, and on separate counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument.
SECTION 13.12. Effect of Headings. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the interpretation hereof.
ARTICLE XIV.
REDEMPTION OF SECURITIES
SECTION 14.1. Applicability of Article. The provisions of this Article shall be applicable to the Securities of any series which are redeemable before their stated Maturity or to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 3.1 for Securities of such series. For purposes of Section 14.2, the redemption of all Securities having the same terms within a series shall not be deemed to be the redemption of fewer than all of the Securities of any series.
SECTION 14.2. Notice of Redemption; Selection of Securities. In case the Issuer shall desire to exercise the right to redeem all or, as the case may be, any part of the Securities of any series in accordance with their terms, it shall fix a Redemption Date and shall provide notice of such redemption at least 30 days prior to such Redemption Date to the Trustee and to the Holders of Securities of such series so to be redeemed as a whole or in part in the manner provided in Section 13.4. The notice provided in the manner herein specified shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice. In any case, failure to give such notice or any defect in the notice to the Holder of any Security of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security of such series.
Each such notice of redemption shall specify the Redemption Date, the Redemption Price, the CUSIP or other comparable number, the Place or Places of Payment, that the Securities of such series are being redeemed at the option of the Issuer pursuant to provisions contained in the terms of the Securities of such series or in a supplemental indenture establishing such series, if such be the case, together with a brief statement of the facts permitting such redemption, that payment will be made upon presentation and surrender of the applicable Securities at the Place or Places of Payment, that the Redemption Price and any interest accrued to the Redemption Date will be paid as specified in said notice, and that on and after said Redemption Date any interest thereon or on the portions thereof to be redeemed will cease to accrue, and any information that is required to be included therein by the Depository. If fewer than all the Securities of any series are to be redeemed the notice of redemption shall specify the numbers of the Securities of such series to be redeemed. In case any Security of any series is to be redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that on and after the Redemption Date, upon surrender of such Security, a new Security or Securities of such series in principal amount equal to the unredeemed portion thereof will be issued, or, in
the case of Securities providing appropriate space for such notation, at the option of the Holders the Trustee, in lieu of delivering a new Security or Securities as aforesaid, may make a notation on such Security of the payment of the redeemed portion thereof.
On or before the Redemption Date with respect to the Securities of any series stated in the notice of redemption given as provided in this Section 14.2, the Issuer will deposit with the Trustee or with one or more Paying Agents an amount of money (except as otherwise specified as contemplated by Section 3.1 for the Securities of such series) sufficient to redeem on such Redemption Date all the Securities or portions thereof so called for redemption at the applicable Redemption Price, together with accrued interest to such Redemption Date. If the Issuer is acting as its own Paying Agent, it will segregate such amount and hold it in trust as provided in Section 4.4.
If fewer than all the Securities of a series are to be redeemed (including the redemption of fewer than all Securities having the same terms within a series), the Issuer will give the Trustee written notice not less than 60 days prior to the Redemption Date as to the aggregate principal amount of Securities to be redeemed and the Trustee shall select, by lot or by such other method as may be set forth in one or more indentures supplemental hereto, the Securities of such series or portions thereof (in multiples of $1,000) to be redeemed.
The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.
SECTION 14.3. Payment of Securities Called for Redemption. If notice of redemption has been given as above provided, the Securities or portions of Securities of the series specified in such notice shall become due and payable on the Redemption Date, and at the place or places stated in such notice at the applicable Redemption Price, together with any interest accrued to such Redemption Date, and on and after said Redemption Date (unless the Issuer shall default in the payment of such Securities at the applicable Redemption Price, together with any interest accrued to said Redemption Date) any interest on the Securities or portion of Securities of any series so called for redemption shall cease to accrue. On presentation and surrender of such Securities at a Place of Payment in such notice specified, such Securities or the specified portions thereof shall be paid and redeemed by the Issuer at the applicable Redemption Price, together with any interest accrued thereon to the applicable Redemption Date, except that if such Redemption Date is an Interest Payment Date, interest shall be paid as provided in Section 3.8.
Upon presentation of any Security redeemed in part only, the Issuer shall execute and the Trustee shall authenticate and make available for delivery to or on the order of the Holder thereof, at the expense of the Issuer, a new Security or Securities of such series, of authorized denominations, in principal amount equal to the unredeemed portion of the Security so presented.
ARTICLE XV.
SINKING FUNDS
SECTION 15.1. Applicability of Article. The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 3.1 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a "mandatory sinking fund payment", and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an "optional sinking fund payment".
SECTION 15.2. Satisfaction of Mandatory Sinking Fund Payment with Securities. In lieu of making all or any part of any mandatory sinking fund payment with respect to any Securities of a series in cash, the Issuer may at its option, at any time but not less than 45 days prior to the date on which such sinking fund payment is due, deliver to the Trustee Securities of such series theretofore purchased or otherwise acquired by the Issuer, except Securities of such series which have been redeemed through the application of mandatory sinking fund payments pursuant to the terms of the Securities of such series, accompanied by an Issuer Order instructing the Trustee to credit such obligations and stating that the Securities of such series were originally issued by the Issuer by way of bona fide sale or other negotiation for value; provided that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the mandatory sinking fund and the amount of such mandatory sinking fund payment shall be reduced accordingly.
SECTION 15.3. Redemption of Securities for Sinking Fund. Not less than 60 days prior to each sinking fund payment date for any series of Securities, the Issuer will deliver to the Trustee a certificate signed by a Vice President, the Treasurer or any Assistant Treasurer of the Issuer specifying the amount of the next ensuing sinking fund payment for such series pursuant to the terms of such series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of such series pursuant to Section 15.2 and whether the Issuer intends to exercise its rights to make a permitted optional sinking fund payment with respect to such series. Such certificate shall be irrevocable and upon its delivery the Issuer shall be obligated to make the cash payment or payments therein referred to, if any, on or before the next succeeding sinking fund payment date. In the
case of the failure of the Issuer to deliver such certificate (or to deliver the
Securities, if any, specified in such certificate within the time period
specified in Section 15.2), unless otherwise agreed by the Trustee, the sinking
fund payment due on the next succeeding sinking fund payment date for such
series shall be paid entirely in cash and shall be sufficient to redeem the
principal amount of the Securities of such series subject to a mandatory sinking
fund payment without the right to deliver or credit Securities as provided in
Section 15.2 and without the right to make any optional sinking fund payment, if
any, with respect to such series.
Any sinking fund payment or payments (mandatory or optional) made in cash
plus any unused balance of any preceding sinking fund payments made with respect
to the Securities of any particular series shall be applied by the Trustee (or
by the Issuer if the Issuer is acting as its own Paying Agent) on the sinking
fund payment date on which such payment is made (or, if such payment is made
before a sinking fund payment date, on the sinking fund payment date following
the date of such payment) to the redemption of Securities of such series at the
Redemption Price specified in such Securities with respect to the sinking fund
together with accrued interest, if any, to the applicable Redemption Date. Any
sinking fund moneys not so applied or allocated by the Trustee (or by the Issuer
if the Issuer is acting as its own Paying Agent) to the redemption of Securities
shall be added to the next sinking fund payment received by the Trustee (or if
the Issuer is acting as its own Paying Agent, segregated and held in trust as
provided in Section 4.4) for such series and, together with such payment (or
such amount so segregated), shall be applied in accordance with the provisions
of this Section 15.3. Any and all sinking fund moneys with respect to the
Securities of any particular series held by the Trustee (or if the Issuer is
acting as its own Paying Agent, segregated and held in trust as provided in
Section 4.4) on the last sinking fund payment date with respect to Securities of
such series and not held for the payment or redemption of particular Securities
of such series shall be applied by the Trustee (or by the Issuer if the Issuer
is acting as its own Paying Agent), together with other moneys, if necessary, to
be deposited (or segregated) sufficient for the purpose, to the payment of the
principal of the Securities of such series at Maturity.
The Trustee shall select or cause to be selected the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 14.2 and the Issuer shall cause notice of the redemption thereof to be given in the manner provided in Section 14.2 except that the notice of redemption shall also state that the Securities are being redeemed by operation of the sinking fund and whether the sinking fund payment is mandatory or optional, or both, as the case may be. Such notice having been duly given, the redemption of the
Securities shall be made upon the terms and in the manner stated in Section 14.3.
On or before each sinking fund payment date, the Issuer shall pay to the Trustee (or, if the Issuer is acting as its own Paying Agent, will segregate and hold in trust as provided in Section 4.4) in cash a sum equal to the principal and any interest accrued to the Redemption Date for Securities or portions thereof to be redeemed on such sinking fund payment date pursuant to this Section.
Neither the Trustee nor the Issuer shall redeem any Securities of a series with sinking fund moneys or mail any notice of redemption of Securities of such series by operation of the sinking fund for such series during the continuance of a default in payment of interest, if any, on any Securities of such series or of any Event of Default (other than an Event of Default occurring as a consequence of this paragraph) with respect to the Securities of such series, except that if the notice of redemption shall have been provided in accordance with the provisions hereof, the Trustee (or the Issuer if the Issuer is acting as its own Paying Agent) shall redeem such Securities if cash sufficient for that purpose shall be deposited with the Trustee (or segregated by the Issuer) for that purpose in accordance with the terms of this Article. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event of Default shall occur and any moneys thereafter paid into such sinking fund shall, during the continuance of such default or Event of Default, be held as security for the payment of the Securities of such series; provided, however, that in case such Event of Default or default shall have been cured or waived as provided herein, such moneys shall thereafter be applied on the next sinking fund payment date for the Securities of such series on which such moneys may be applied pursuant to the provisions of this Section.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed.
IDACORP, INC.
By /s/ Darrel Anderson
______________________
Name: Darrel Anderson
Title: Vice President - Finance
& Treasurer
|
BANKERS TRUST COMPANY
By /s/ Carol Ng ______________________ Name: Carol Ng Title: Vice President |
STATE OF IDAHO )
) ss.:
COUNTY OF ADA )
At Boise, ID, on this 28th day of February 2001, before me, a Notary Public in and for the County of Ada and State of Idaho, personally appeared Darrel Anderson, the V.P. - Finance & Treasurer, of IDACORP, Inc., to me personally known, who executed the foregoing instrument on behalf of said corporation, and acknowledged the same to be his free act and deed in his said capacity and the free act and deed of IDACORP, Inc.
NOTARIAL SEAL
/s/ Mary Gray
----------------------------------
Notary Public
|
My Commission Expires: 7/17/2004
IDACORP, INC.
TO
BANKERS TRUST COMPANY,
Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of February 1, 2001
TO
INDENTURE
Dated as of February 1, 2001
Medium-Term Notes, Series A
FIRST SUPPLEMENTAL INDENTURE dated as of February 1, 2001 made and entered into by and between IDACORP, Inc., a corporation of the State of Idaho (hereinafter, subject to Article XI of the Indenture, called the "Issuer" or the "Company"), having its principal office at 1221 West Idaho Street, Boise, Idaho 83702-5627,and BANKERS TRUST COMPANY, a corporation of the State of New York, as Trustee (hereinafter, subject to Article VII of the Indenture, called the "Trustee"), having its principal office at Four Albany Street, New York, New York 10006, as Trustee under the Indenture for Senior Debt Securities dated as of February 1, 2001 executed and delivered by IDACORP, Inc.
WHEREAS the Indenture dated as of February 1, 2001 (herein with all indentures supplemental thereto called the "Indenture"), provides for the issuance of notes, debentures or other evidences of its indebtedness in one or more series (hereinafter called the "Securities"), unlimited in aggregate principal amount;
WHEREAS the Indenture provides in Article Three thereof that, prior to the issuance of Securities of any series, the form of such Securities and the terms applicable to such series shall be established in, or pursuant to, the authority granted in a resolution of the Board of Directors (delivered to the Trustee in the form of a Board Resolution) or established in one or more indentures supplemental thereto;
WHEREAS the Issuer desires by this Supplemental Indenture, among other things, to establish the form of the Securities of a series, to be titled "Medium-Term Notes, Series A" of the Issuer, and to establish the terms applicable to such series, pursuant to Sections 3.1 and 10.1(e) of the Indenture;
WHEREAS the execution and delivery of this Supplemental Indenture by the parties hereto are in all respects authorized by the provisions of the Indenture; and
WHEREAS all things necessary have been done to make this Supplemental Indenture a valid agreement of the Issuer, in accordance with its terms.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, it is mutually covenanted and agreed, as follows:
ARTICLE I.
Medium-Term Notes, Series A
SECTION 1. The title of the series of the Securities established by this Supplemental Indenture shall be "Medium-Term Notes, Series A" of the Issuer (hereinafter called the "Series A Notes"). The Series A Notes shall be substantially in the form set forth in Exhibit A hereto (which is hereby incorporated herein and made a part hereof), subject to changes in the form thereof made by the Issuer and acceptable to the Trustee.
SECTION 2. The Series A Notes shall be issued from time to time in an aggregate principal amount not to exceed $300,000,000.
SECTION 3. The Series A Notes may be issued in whole or in part as one or more Global Securities and The Depository Trust Company, or a nominee thereof, shall be the Depository for such Global Security or Global Securities, except in each case as otherwise provided in an Issuer Order with respect to any Series A Notes. The Depository for such Global Security or Global Securities representing Series A Notes may surrender one or more Global Securities representing Series A Notes in exchange in whole or in part for individual Series A Notes on such terms as are acceptable to the Issuer and such Depository and otherwise subject to the terms of Section 2.4 of the Indenture.
SECTION 4. The Issuer hereby appoints, or confirms the appointment of, Bankers Trust Company as the initial Trustee, Securities Registrar and Paying Agent, subject to the provisions of the Indenture with respect to resignation, removal and succession, and subject, further, to the right of the Issuer to appoint additional agents (including Paying Agents). An Authenticating Agent may be appointed for the Series A Notes under the circumstances set forth in, and subject to the provisions of, the Indenture.
SECTION 5. The terms of the Series A Notes shall be as set forth in Exhibit A hereto, and shall include the payment and other terms reflected on the respective Series A Notes as actually executed, authenticated and delivered under the Indenture. Notwithstanding the foregoing, specific terms of particular Series A Notes (any redemption, sinking fund or other repayment terms that differ from the provisions of Article XIV or XV of the Indenture and any terms for satisfaction and discharge of the Indenture that differ from the provisions of Article XII of the Indenture) may be determined in accordance with or pursuant to the Issuer Order with respect thereto, as referred to in Section 3.3 of the Indenture.
ARTICLE II.
Miscellaneous Provisions
SECTION 1. The recitals contained herein shall be taken as the statements of the Issuer, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representation as to the validity of this supplemental indenture. The Indenture, as supplemented by this supplemental indenture, is in all respects hereby adopted, ratified and confirmed.
SECTION 2. The titles of the several Articles of this First Supplemental Indenture shall not be deemed to be any part hereof.
SECTION 3. This First Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed.
IDACORP, INC.
By /s/ Darrel Anderson
______________________
Name: Darrel Anderson
Title: Vice President - Finance
& Treasurer
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BANKERS TRUST COMPANY
By /s/ Carol Ng ______________________ Name: Carol Ng Title: Vice President |
STATE OF IDAHO )
) ss.:
COUNTY OF ADA )
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At Boise, ID, on this 28th day of February 2001, before me, a Notary Public in and for the County of Ada and State of Idaho, personally appeared Darrel Anderson, the V.P. - Finance & Treasurer, of IDACORP, Inc., to me personally known, who executed the foregoing instrument on behalf of said corporation, and acknowledged the same to be his free act and deed in his said capacity and the free act and deed of IDACORP, Inc.
NOTARIAL SEAL
/s/ Mary Gray
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Notary Public
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My Commission Expires: 7/17/2004
Exhibit A
[FORM OF NOTE]
Registered
No. A-
CUSIP
If this Note is registered in the name of The Depository Trust Company (the "Depository") (55 Water Street, New York, New York) or its nominee, this Note may not be transferred except as a whole by the Depository to a nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor Depository unless and until this Note is presented by an authorized agent of The Depository Trust Company to the Issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or such other name as is requested by an authorized representative of The Depository Trust Company and any payment is made to Cede & Co. ANY TRANSFER, PLEDGE OR OTHER USE THEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.
IDACORP, Inc.
MEDIUM-TERM NOTE, SERIES A
______% Fixed Rate Note
Original Issue Date: Principal Amount:
Interest Accrual Date: Issue Price:
Interest Payment Dates:
Maturity Date:
Redemption Date(s): Redemption Price(s):
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Repayment Date(s): Repayment Price(s):
IDACORP, Inc., an Idaho corporation (the "Company", which term includes any successor issuer under the Indenture hereinafter referred to), for value received hereby promises to pay to _____________________ or registered assigns, the principal sum of ___________________ Dollars on the "Maturity Date", as set forth above, and to pay interest hereon as described on the reverse hereof.
The principal of (and premium, if any) and interest on this Note are payable by the Company in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH BELOW, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been manually executed by or on behalf of the Trustee under the Indenture, this Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, IDACORP, Inc. has caused this instrument to be signed in its corporate name by the signatures or facsimile signatures of its President or a Vice President, and its Treasurer or an Assistant Treasurer, and its corporate seal or a facsimile thereof to be hereon impressed, engraved or imprinted and attested by such signature or facsimile signature of its Secretary or an Assistant Secretary.
IDACORP, Inc.
MEDIUM-TERM NOTE, SERIES A
1. This Note is one of a duly authorized issue of debt securities (hereinafter called the "Securities") of the Company of the series hereinafter specified, all such Securities issued and to be issued under an Indenture dated as of February 1, 2001 between the Company and Bankers Trust Company, as Trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture), as amended and supplemented by the First Supplemental Indenture, dated as of February 1, 2001, and as further amended and supplemented (herein called the "Indenture"), to which Indenture reference is hereby made for a statement of the rights and limitations of rights thereunder of the Holders of the Securities and of the rights, obligations, duties and immunities of the Trustee and of the Company, and the terms upon which the Securities are and are to be authenticated and delivered. As provided in the Indenture, the Securities may be issued in one or more series which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest, if any, at different rates, may be subject to different redemption provisions, if any, may be subject to different sinking, purchase or analogous funds, if any, may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided or permitted. This Note is one of a Series designated on the face hereof as Medium-Term Notes, Series A (the "Series A Notes"), limited to $300,000,000 in aggregate principal amount. The Series A Notes may be issued at various times with different maturity dates and different principal repayment provisions, may bear interest at different rates, and may otherwise vary, all as provided in the Indenture.
2.A. The record date (the "Regular Record Date") with respect to any Interest Payment Date (as defined below) shall be on the fifteenth day of the month immediately preceding such Interest Payment Date, whether or not such date shall be a Business Day (unless otherwise set forth herein). Interest which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the person in whose name the Note is registered at the close of business on the record date immediately preceding such Interest Payment Date; provided, however, that the first payment of interest on any Note with an Original Issue Date between a Regular Record Date and the succeeding Interest Payment Date will be made on the Interest Payment Date following the immediately succeeding Regular Record Date to the registered owner on such immediately succeeding Regular Record Date; and provided, further, that interest payable at Maturity will be payable to the person to whom principal shall be payable. "Maturity" means the date on which the principal amount hereof becomes due and payable, whether at Stated Maturity
or earlier by declaration of acceleration, call for redemption or otherwise. Notwithstanding the foregoing, any interest that is payable but not punctually paid or duly provided for on any Interest Payment Date shall forthwith cease to be payable to the registered owner hereof on such Regular Record Date, and may be paid to the person in whose name this Note is registered on the close of business on a subsequent record date established by notice given by mail, by or on behalf of the Company to such Holder not less than fifteen days preceding such subsequent record date, such record date to be not less than ten days preceding the date for payment of such defaulted interest, or may be paid as more fully provided in the Indenture. "Business Day" means any day, other than a Saturday or Sunday, that is not a day on which banking institutions are authorized or required by law or regulation to be closed in The City of New York.
B. The Company promises to pay interest on the principal amount from its Original Issue Date at the rate per annum stated on the face hereof until the principal amount hereof is paid or made available for payment. Unless otherwise provided herein, the Company will pay interest semi-annually each April 1 and October 1 (each an "Interest Payment Date"), commencing (except as set forth above in the case of a Note with an Original Issue Date between a Regular Record Date and an Interest Payment Date) with the Interest Payment Date immediately following the Original Issue Date and at Maturity. If any Interest Payment Date would otherwise be a day that is not a Business Day, such Interest Payment Date shall be postponed to the next day that is a Business Day, and no interest shall accrue by reason of such delayed payment. Each payment of interest in respect of an Interest Payment Date shall include interest accrued to but excluding such Interest Payment Date. Interest on Fixed Rate Series A Notes shall be computed on the basis of a 360-day year of twelve 30-day months (unless otherwise specified herein).
3. Payments of interest (other than interest payable at Maturity) will be made by mailing a check to the Holder at the address of the Holder appearing on the Securities Register of the Company on the applicable Regular Record Date, unless otherwise agreed to by the Company. The principal amount hereof and any premium and the interest payable at Maturity will be paid at Maturity against presentation of this Note at the office or agency of the Company maintained for that purpose in the Borough of Manhattan, The City of New York, or as otherwise provided in the Indenture.
4. If specified above, this Note may be redeemed, as a whole or from time to time in part, at the option of the Company, on not less than 30 days' prior notice given as provided in the Indenture, on any Redemption Date(s) and at the related Redemption Price(s) (expressed as a percentage of the principal amount hereof) set forth on the face hereof, together with interest accrued and unpaid hereon to such Redemption Date. If no such Redemption Date is set forth on the face hereof, this Note may not be so redeemed prior to the Maturity Date specified on the face hereof. If fewer than all the Outstanding Series A Notes of like tenor and terms are to be redeemed, the particular
Series A Notes to be redeemed shall be selected by the Trustee not more than 60 days prior to the Redemption Date from the Outstanding Series A Notes of like tenor or terms not previously called for redemption. Such selection shall be of principal amounts in increments of $1,000. Subject to the immediately preceding sentence, such selection shall be made by lot. The notice of such redemption shall specify which Series A Notes are to be redeemed. In the event of redemption of this Note in part only, a new Note or Series A Notes of this series of like tenor or terms for the unredeemed portion hereof will be issued to the Holder hereof upon the cancellation hereof.
5. If specified above, this Note will be subject to repayment at the option of the Holder hereof on the Repayment Date(s) and at the related Repayment Price(s) (expressed as a percentage of the principal amount hereof) indicated on the face hereof. If no such Repayment Date is set forth on the face hereof, this Note may not be so repaid prior to the Maturity Date specified on the face hereof. On each Repayment Date, if any, this Note shall be repayable in whole or in part at the option of the Holder hereof at the applicable Repayment Price set forth on the face hereof, together with interest accrued and unpaid hereon to such Repayment Date. In order for this Note to be repaid in whole or in part at the option of the Holder hereof, the Paying Agent must receive not less than 30 but not more than 45 days prior to the Repayment Date (i) the Note with the form entitled "Option to Elect Repayment" below duly completed or (ii) a facsimile transmission or a letter from a member of a national securities exchange or the National Association of Securities Dealers, Inc. or a commercial bank or a trust company in the United States of America setting forth the name of the Holder of the Note, the principal amount of the Note, the certificate number of the Note or a description of the Note's tenor or terms, the principal amount of the Note to be repaid, a statement that the option to elect repayment is being exercised thereby and a guarantee that the Note to be repaid with the form entitled "Option to Elect Repayment" on the reverse of the Note duly completed will be received by such Paying Agent no later than five Business Days after the date of such facsimile transmission or letter and such Note and form duly completed are received by such Paying Agent by such fifth Business Day. Exercise of such repayment option shall be irrevocable. Such option may be exercised by the Holder for less than the entire principal amount provided that the principal amount remaining outstanding after repayment is an authorized denomination.
6. If an Event of Default with respect to the Series A Notes shall occur and be continuing, the principal of all of the Series A Notes may be declared due and payable in the manner and with the effect provided in the Indenture.
7. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company with the consent of the Holders of not less than a majority in principal amount of the Securities at the time
Outstanding of all series to be affected thereby (voting as one class). The Indenture also contains provisions permitting the Holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive past defaults or certain Events of Default under the Indenture, with certain exceptions as therein provided, and their consequences with respect to such series, prior to the acceleration with respect to the Securities of such series. In the case of any such waiver, the Holder of this Note shall be restored to his former position and rights hereunder, such default shall cease to exist and be deemed to have been cured and not to have occurred, and any related Event of Default shall be deemed to have been cured, and not to have occurred for every purpose of the Indenture; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon.
8. No reference herein to the Indenture and no provision of this Note or of the Indenture shall affect or impair the obligation of the Company, which is unconditional and absolute, to pay the principal of and premium, if any, and interest on this Note at the places, at the times, at the rates, in the amounts and in the coin or currency as prescribed herein and in the Indenture.
9. Series A Notes will be issued in denominations of $1,000 and integral multiples of $1,000 in excess thereof.
10. As provided in the Indenture and subject to certain limitations therein set forth, this Note is transferable on the Securities Register of the Company, upon surrender of this Note for registration of transfer at the office or agency of the Company to be maintained for that purpose in The City of New York. Every Note presented for registration of transfer shall (if so required by the Company or the Securities Registrar) be duly endorsed, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Securities Registrar duly executed, by the Holder hereof or its attorney duly authorized in writing, and thereupon one or more new Series A Notes of like tenor and terms of authorized denominations and for the same aggregate principal amount will be issued to the designated transferee or transferees.
The Company shall not be required (i) to issue, register the transfer of or exchange Series A Notes to be redeemed for a period of fifteen days preceding the date of the mailing of the notice of redemption, or (ii) to register the transfer of or to exchange any such Note or portion thereof selected for redemption, except the unredeemed portion of any such Note being redeemed in part.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. Prior to due presentment of a Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the person in whose name a Note is registered as the owner hereof for all purposes whether or not such Note be overdue and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
11. Unless otherwise defined herein, all terms used in this Note which are defined in the Indenture shall have the meaning assigned to them in the Indenture.
12. This Note shall for all purposes be governed by, and construed in accordance with, the laws of the State of Idaho.
IDACORP, Inc.
By:___________________________
By:___________________________
Trustee's Certificate of
Authentication
Dated:
This is one of the
Securities of the series
designated therein
referred to in the within-
mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
By: ________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ------------------------------ ---------------------------- Please insert social security Please print or typewrite or other identifying number name and address of assignee of assignee -------------------------------------------------------------------------------- |
the within Note of IDACORP, Inc. and does hereby irrevocably constitute and appoint ______________________________ attorney to transfer the said Note on the books of the within- mentioned Company, with full power of substitution in the premises.
Dated: _________________ ______________________________
Notice: The signature on this
assignment must correspond
with the name as written upon
the face of the Note in every
particular without alteration
or enlargement or any change
whatsoever.
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The undersigned hereby irrevocably requests and instructs the Company to repay the within Note (or portion hereof specified below) pursuant to its terms at a price equal to the applicable Repayment Price thereof together with interest to the Repayment Date, to the undersigned at __________________________
If less than the entire principal amount of the within Note is to be repaid, specify the portion thereof that the Holder elects to have repaid _____________________________________ and specify the denomination or denominations (which shall be in authorized denominations) of the Series A Notes to be issued to the Holder for the portion of the within Note not being repaid (in the absence of any such specification, one such Note will be issued for the portion not being repaid):
----------------------------.
Date: ______________________ _____________________________ Signature
* Note: This option is not available to a holder unless this Note contains an express provision granting to the holder hereof an option to elect repayment.