SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): September 27, 2001
IDAHO POWER COMPANY
(Exact name of registrant as specified in its charter)
Idaho 1-3198 82-0130980
(State or other (Commission (I.R.S. Employer
jurisdiction of incorporation File Number) Identification No.)
1221 West Idaho Street
Boise, Idaho 83702-5627
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(Address of principal executive
offices) (Zip Code) Registrant's telephone
number, including area code (208) 388-2200
Former name or address, if changed since last report.
Idaho Power Company
Form 8-K
Items 1 through 4, 6, 8 and 9 are inapplicable and have been omitted herefrom.
Item 5. Other Events and Regulation FD Disclosure
On September 27, 2001, the Idaho Public Utilities Commission (IPUC) authorized Idaho Power Company to collect $47.7 million in deferred access purchased power costs. The Company also was authorized to collect nearly $1.2 million in accrued interest.
In its 2000-2001 Power Cost Adjustment (PCA) filing, the Company in April this year had requested a total of $227.4 million out of $253 million the Company spent to serve its Idaho customers. The money was primarily spent to purchase power from the wholesale energy market and pay for higher fuel costs to generate electricity from its coal-fired power plants. In May, the IPUC authorized recovery of $168.3 million but deferred recovery of $59.1 million pending a review of Idaho Power's trading practices.
The IPUC order directed Idaho Power to begin recovering the deferred PCA balance on October 1 through a one-year rate increase to all customer classes of 0.386 cents per kilowatt-hour.
If the IPUC order becomes final in its current form, the Company may be required to expense the $11.4 million that was denied. If required, the Company would anticipate expensing this amount in the third or fourth quarter of 2001.
Item 7. Financial Statements and Exhibits.
(c) Exhibits
1. - Selling Agency Agreement dated October 1, 2001
4. - Thirty-sixth Supplemental Indenture to Mortgage and Deed of Trust, dated as of October 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.
IDAHO POWER COMPANY
By: /s/ Darrel T. Anderson
------------------------------------
Darrel T. Anderson
Vice President - Finance and Treasurer
Dated: October 1, 2001
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IDAHO POWER COMPANY
First Mortgage Bonds,
Secured Medium-Term Notes, Series D
Due From Nine Months to Thirty Years
From Date of Issue
Selling Agency Agreement
October 1, 2001
ABN AMRO Incorporated
55 East 52nd Street
New York, NY 10055
Banc of America Securities LLC
Bank of America Corporate Center
100 North Tryon Street
Charlotte, NC 28255
Banc One Capital Markets, Inc.
One Bank One Plaza
Suite IL1-0595
Chicago, IL 60670
BNY Capital Markets, Inc.
One Wall Street, 18th Floor
New York, NY 10286
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
McDonald Investments Inc.
800 Superior Avenue
Cleveland, OH 44114
U.S. Bancorp Piper Jaffray Inc.
111 SW Fifth Avenue, Suite 1900
Portland, OR 97204
Wells Fargo Brokerage Services, LLC
608 Second Avenue South, Suite 900
MAC N9303-097
Minneapolis, MN 55479
Ladies and Gentlemen:
Idaho Power Company, an Idaho corporation (the "Company"), confirms its agreement with each of you with respect to the issue and sale by the Company of up to $200,000,000 aggregate principal amount of its First Mortgage Bonds, Secured Medium-Term Notes, Series D Due from Nine Months to Thirty Years from Date of Issue (the "Notes"). The Notes will be issued under the Indenture of Mortgage and Deed of Trust, dated as of October 1, 1937, between the Company and Bankers Trust Company, (the "Trustee") and R.G. Page (Stanley Burg, successor individual trustee), as trustees, as supplemented and amended by all indentures supplemental thereto including the Thirty-sixth Supplemental Indenture relating to the Notes dated as of October 1, 2001 (the "Supplemental Indenture"). The Indenture of Mortgage and Deed of Trust 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 any of you acting solely in the capacity as agent for the Company pursuant to Section 2(a) and not as principal (collectively, the "Agents"), the term "Purchaser" shall refer to one of you acting solely as principal pursuant to Section 2(b) and not as agent, and the term "you" shall refer to you collectively whether at any time any of you is acting in both such capacities or in either such capacity. In acting under this Agreement, in whatever capacity, each of you is acting individually and not jointly.
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 333-67748), including a basic prospectus, which has become effective, for the registration under the Act of $200,000,000 aggregate amount of its first mortgage bonds, serial preferred stock, without par value, and 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 Statements of Eligibility of the Trustees (Forms T-1 and T-2), 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 any of 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 issued by the Idaho Public Utilities Commission (which grants authority to sell the Notes through September 14, 2003, the Public Utility Commission of Oregon and the Public Service Commission of Wyoming and are in full force and effect, and such 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 Agents.
(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 Agents; Solicitation by the Agents 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 each of the Agents 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, each of the Agents 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. Each Agent shall make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase Notes has been
solicited by such Agent and accepted by the Company, but such 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 any Agent be obligated to
purchase any Notes for its own account. It is understood and agreed, however, that if approved by the Company any Agent may purchase Notes as principal pursuant to Section 2(b).
Each 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. Each 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 Agents 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 Agents will forthwith suspend solicitation of offers to purchase Notes from the Company until such time as the Company has advised them that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, for such Agent's services in acting as an agent and not for a purchase by such 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 such 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 an 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 an Agent, except that the Company may accept offers to purchase Notes through an agent other than an Agent if the Company gives the Agents 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 each of 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 any of you determine that the Company shall sell Notes directly to any of 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. Each 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 each of you through your counsel a copy for your review prior to filing and given each of 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 each of 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 each of you to suspend solicitation of offers to purchase Notes (and, if so notified by the Company, each of 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 each of 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 each of you copies of such documents.
(d) As soon as practicable, the Company will make generally available to its security holders and to each of 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 each of 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 any of 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 each of 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 each of 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 the reasonable judgment of any of you, 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 each of 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 each of 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 each of 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 each of 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 each of 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 each of 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 the
reasonable judgment of any of you, 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 first mortgage bonds 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 Agents
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 Agents 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 Agents, 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) During the term of this Agreement, the Company shall furnish to each
Agent (i) copies of all annual, quarterly and other reports furnished to the
shareholder 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).
(o) The Company agrees that any person who has agreed to purchase and pay
for any Note pursuant to a solicitation by any of the Agents 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 any such 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(o)).
5. Conditions to the Obligations of the Agents. The obligations of each 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 each 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) Each Agent shall have received from Sullivan & Cromwell, counsel for the Agents, 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 Agents 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, Montana, Nevada, Oregon and Wyoming law.
(d) The Company shall have furnished to each 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 Agents 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 or any development that could reasonably be expected to result in a 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 each Agent a letter or letters (which may refer to letters previously delivered to the Agents), 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 each Agent such further information, documents and certificates as the Agents 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 such Agents and counsel for the Agents, this Agreement and all obligations of any Agent hereunder may be cancelled at any time by the
Agents. 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 harmless each of you 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 each of 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 Exhibits 25.1 and 25.3 to the Registration Statement which shall constitute the Statements of Eligibility of the Trustees on Forms T-1 and T-2, or amendments thereto, under the Indenture and provided further that the Company shall not be liable to any of 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 any of you within the meaning of the Act.
(b) Each of you severally and not jointly 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 each of 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
each of 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 each of 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 any of 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 each of 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. The obligations of each of you 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 any Agent or by any of you insofar as this Agreement relates to any Agent, by giving written notice of such termination to such 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 fifth 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 first mortgage
bonds by Moody's Investors Service Inc. or Standard & Poor's Corporation 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 general moratorium on commercial banking
activities shall have been declared by either Federal or New York State
authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States shall have occurred, (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 is such as to make it, in the judgment of the Purchaser,
impracticable or inadvisable to proceed with the public offering or the delivery
of the Notes on the terms and in the manner contemplated in the Prospectus or
(vi) there shall have occurred any adverse change in national or international
financial, political or economic conditions the effect of which is such as to
make it, in the judgment of the Purchaser, impracticable or inadvisable to
proceed with the public offering or the delivery of the Notes on the terms and
in the manner contemplated in 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 any of you, will be mailed, delivered or telegraphed and confirmed to such of 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,
IDAHO POWER COMPANY
By: /s/ Darrel T. Anderson
-----------------------------------
Darrel T. Anderson
Vice President -
Finance and Chief
Accounting Officer
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The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
ABN AMRO INCORPORATED
By: /s/ Linda A. Dawson
_______________________________
Name: Linda A. Dawson
Title: Managing Director
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BANC OF AMERICA SECURITIES LLC
By: /s/ Lily Chang
_______________________________
Name: Lily Chang
Title: Principal
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BANC ONE CAPITAL MARKETS, INC.
By: /s/ Donald J. Donahue
_______________________________
Name: Donald J. Donahue
Title: Managing Director
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BNY CAPITAL MARKETS, INC.
By: /s/ Daniel Klinger
_______________________________
Name: Daniel Klinger
Title: Vice Principal
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GOLDMAN, SACHS & CO.
By: /s/ Goldman, Sachs & Co.
_______________________________
(Goldman, Sachs & Co.)
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MCDONALD INVESTMENTS INC.
By: /s/ Richard A. Pohle
_______________________________
Name: Richard A. Pohle
Title: Senior Vice President
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U.S. BANCORP PIPER JAFFRAY INC.
By: /s/ Robert A. Krueger
_______________________________
Name: Robert A. Krueger
Title: Managing Director
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WELLS FARGO BROKERAGE SERVICES, LLC
By: /s/ Joseph W. Glenn
_______________________________
Name: Joseph W. Glenn
Title: Vice President
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SCHEDULE I
Commissions:
The Company agrees to pay each Agent a commission equal to the following percentage of the principal amount of each Note sold on an agency basis by such 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 0.675
20 years or more 0.750
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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.
Address for Notice to Agents:
Notices to (1) ABN AMRO Incorporated shall be directed to it at 55 East 52nd Street, New York, NY 10055
Attention of Legal Department Tel: 212-409-1000 Fax: 212-409-7303
Notices to (2) Banc of America Securities LLC shall be directed to it at Bank of America Corporate Center, 100 North Tryon Street, Charlotte, NC 28255
Attention of MTN Desk
Tel: 704-388-4809
Fax: 704-388-9939
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Notices to (3) Banc One Capital Markets, Inc. shall be directed to it at One Bank One Plaza, Suite IL1-0595, Chicago, IL 60670
Attention of Investment Grade Securities Tel: 312-732-7259 Fax: 312-732-4773
Notices to (4) The BNY Capital Markets, Inc. shall be directed to it at One Wall Street, 18th floor, New York, NY 10286
Attention of Dan Klinger
Tel: 212-635-8974
Fax: 212-635-8525
Notices to (5) Goldman, Sachs & Co. shall be directed to it at 85 Broad Street, New York, NY 10004
Attention of Ben Smilchensky Tel: 212-902-1482 Fax: 212-902-0658
Notices to (6) McDonald Investments Inc. shall be directed to it at 800 Superior Avenue, Cleveland, OH 44114
Attention of Andrew T. Redinger Tel: 216-443-2305 Fax: 216-443-2993
Notices to (7) U.S. Bancorp Piper Jaffray Inc. shall be directed to it at 111 SW Fifth Avenue, Suite 1900, Portland, OR 97204
Attention of Mike Malmquist Corporate Finance Tel: 503-275-4131 Fax: 503-275-3490
Notices to (8) Wells Fargo Brokerage Services, LLC shall be directed to it at 608 Second Avenue South, Suite 900, MAC N9303-097, Minneapolis, MN 55479
Attention of Joseph W. Glenn Tel: 612-667-3774 Fax: 612-667-4774
EXHIBIT A
IDAHO POWER COMPANY
First Mortgage Bonds,
Secured Medium-Term Notes, Series D, Administrative Procedures
Book-Entry Form
The First Mortgage Bonds, Secured Medium-Term Notes, Series D, Due from Nine Months to Thirty Years from Date of Issue (the "Notes") of Idaho Power Company (the "Company") are to be offered on a continuing basis. ABN AMRO Incorporated, Banc of America Securities LLC, Banc One Capital Markets, Inc., BNY Capital Markets, Inc., Goldman, Sachs & Co., McDonald Investments Inc., U.S. Bancorp Piper Jaffray Inc. and Wells Fargo Brokerage Services, LLC, as agents (each an "Agent"), have agreed to use their reasonable best efforts to solicit purchases of Notes issued in fully registered form. The Agents will not be obligated to purchase Notes for their own account. The Notes are being sold pursuant to a Selling Agency Agreement between the Company and the agents named therein (including the Agents) 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 of Mortgage and Deed of Trust, dated as of October 1, 1937, between the Company and Bankers Trust Company (the "Trustee") and R.G. Page (Stanley Burg, successor individual trustee), as trustees, as supplemented, pursuant to the Thirty-sixth Supplemental Indenture dated as of October 1, 2001 (the "Indenture").
The Agency Agreement provides that Notes may also be purchased by an 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 such Agent acting solely as principal, unless otherwise agreed to between the Company and such 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 Agents 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 Agents and the Trustee in writing of those persons handling administrative responsibilities with whom the Agents 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 October 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 $200,000,000 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.
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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 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.
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
A-3
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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 thirty 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 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,
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the first interest payment will be made on the Interest Payment
Date following the next succeeding Regular Record Date.
Calculation Interest on Book-Entry Notes (including interest for partial
of Interest: periods) will be calculated on the basis of a 360-day year of
twelve 30-day months.
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 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.
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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 # 500-15-307)
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 payments and materials directly to the
beneficial owner of such Note.
Procedures Company Notice to Trustee Regarding Exercise of Optional
upon Company's Redemption. At least 35 days prior to the date on which it
Exercise intends to redeem a Book-Entry Note, the Company will notify the
of Optional Trustee that it is exercising such option with respect to such
Redemption: 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.
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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 Agents will discuss from time to time the
Rate Setting aggregate principal amount of, the issuance price of, and the
and Posting: interest rates to be borne by, Book-Entry Notes that may be sold
as a result of the solicitation of orders by the Agents. If the
Company decides to set prices of, and rates borne by, any
Book-Entry Notes in respect of which the Agents are 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
Agents of the prices and rates to be posted.
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Acceptance and Unless otherwise instructed by the Company, each Agent will Rejection of advise the Company promptly by telephone of all orders to Orders: purchase Book-Entry Notes received by such 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 Agents, the Company has the sole right to accept orders to purchase Book-Entry Notes and may reject any such orders in whole or in part.
Preparation If any order to purchase a Book-Entry Note is accepted by or on
of Pricing 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 Agents 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 Agents
will forthwith suspend solicitation until such time as the
Company has advised them that such solicitation may
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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 Agents 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 Agency Agreement) or the Prospectus,
it will promptly advise the Agents and furnish the Agents 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 Agents and Bankers Trust
with copies of any such supplement, and confirm to the Agents
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 of
Rate Changes: Book-Entry Notes being offered, it will promptly advise the
Agents and the Agents will forthwith suspend solicitation of
orders. The Agents will telephone the Company with
recommendations as to the changed interest rates. At such time as
the Company has advised the Agents of the new interest rates, the
Agents 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 Supplement)
Prospectus: 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 Agents 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
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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 an Agent).
Confirmation: For each order to purchase a Book-Entry Note solicited by any
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 sold by
Procedures: the Company through any 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.
A-9
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12. Presenting Agent's commission, determined as provided
in Section 2 of the Agency Agreement and certification
that the purchasers were solicited solely by such
Agent.
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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 $200,000,000
(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 Agents 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 # 500-15-307) 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 any 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
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
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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 risk
Not to Risk or expend its own funds in connection with any payment to the
Funds: Company, DTC, the Agents or the purchaser, it being understood by
all parties that payment made by Bankers Trust to the Company,
DTC, the Agents or the purchaser shall be made only to the extent
that funds are provided to Bankers Trust for such purpose.
Authenticity The Company will cause Bankers Trust to furnish the Agents from
of Signatures: 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 Agents
will have no obligation or liability to the Company or Bankers
Trust in respect of the
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authenticity of the signature of any officer, employee or agent
of the Company or Bankers Trust on any Book-Entry Note.
Advertising The Company will determine with the Agents 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 statement
Statements setting forth the principal amount of Book-Entry Notes
from outstanding as of that date and setting forth a brief description
Bankers Trust: 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
Idaho Power Company
First Mortgage Bonds,
Secured Medium Term Notes, Series D
Due from Nine Months
to Thirty Years from Date of Issue
TERMS AGREEMENT
Idaho Power Company
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 __________, 2001, between [Agents], and you, the undersigned agrees to purchase the following Notes of Idaho Power Company:
[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]
Accepted:
Idaho Power Company
EXHIBIT C
Pursuant to Section 5(e) of the Selling Agency Agreement, the accountants shall furnish a letter to the Agents 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 Agents;
(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 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 Agents, 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 Agents, or any increases in any items specified by the Agents, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Agents, 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 Agents 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 Agents or in documents incorporated by reference in the Prospectus specified by the Agents, 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
__________, 20__
To the Agents referred to in the
Selling Agency Agreement
Relating to:
$200,000,000 Principal Amount of First Mortgage Bonds, Secured Medium- Term Notes, Series D, of Idaho Power Company
Ladies and Gentlemen:
With reference to the issuance and sale by Idaho Power Company, an Idaho corporation (the "Company"), pursuant to the Selling Agency Agreement, dated October 1, 2001 (the "Agency Agreement"), between the Company and you of up to $200,000,000 aggregate principal amount of First Mortgage Bonds, Secured Medium-Term Notes, Series D (the "Notes"), to be issued under the Company's Indenture of Mortgage and Deed of Trust, dated as of October 1, 1937, as supplemented by all indentures supplemental thereto, the latest such supplemental indenture being the Thirty-sixth Supplemental Indenture, dated as of October 1, 2001 (said Indenture of Mortgage and Deed of Trust, as so supplemented, being hereinafter called the "Mortgage"), we advise you that we are counsel to the Company and in that capacity have reviewed or participated in the preparation of (1) the Mortgage; (2) the registration statement (File No. 333-67748) 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 August 27, 2001 (the "Base Prospectus"), as supplemented by a prospectus supplement relating to the Notes, dated October 1, 2001 (the "Prospectus Supplement") (such prospectus, as so supplemented, including the incorporated documents, being hereinafter referred to as the "Prospectus"); (4) the Agency Agreement and (5) the Bond Application, dated October 1, 2001 for authentication and delivery of the Notes in an aggregate principal amount not to exceed $200,000,000 (the "Bond Application"). 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 Mortgage 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 mortgagees' and other 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 entitled to the benefit of the security provided by the Mortgage, subject to bankruptcy, insolvency, reorganization or other laws of general applicability relating to or affecting mortgagees' and other 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, except that the order of the Idaho Public Utilities Commission grants authority to sell the Notes through September 14, 2003; 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. We are not passing upon matters relating to the incorporation of the Company, titles to property, liens, licenses, franchises, water rights or conformity to the laws of the States of Idaho, Montana, Nevada, Oregon or Wyoming, or upon questions of the recording of, or the validity or priority of the lien of, the Mortgage.
Very truly yours,
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
EXHIBIT E
_________, 20__
To the Agents referred to in the
Selling Agency Agreement
Relating to:
$200,000,000 Principal Amount of First Mortgage Bonds, Secured Medium- Term Notes, Series D, of Idaho Power Company
Ladies and Gentlemen:
In connection with the issuance and sale pursuant to the Selling Agency Agreement, dated October 1, 2001 (the "Agency Agreement"), between Idaho Power Company, an Idaho corporation (the "Company"), and you of up to $200,000,000 aggregate principal amount of the Company's First Mortgage Bonds, Secured Medium-Term Notes, Series D (the "Notes"), to be issued under an Indenture of Mortgage and Deed of Trust, dated as of October 1, 1937, between the Company and Bankers Trust Company and R.G. Page, as Trustees (Stanley Burg, successor individual trustee) (the "Trustees"), as supplemented by all indentures supplemental thereto, the latest such supplemental indenture being the Thirty-sixth Supplemental Indenture, dated as of October 1, 2001 between the Company and the Trustees (collectively, the "Mortgage"), 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. 333-67748) 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 August 27, 2001 (the "Base Prospectus"), as supplemented by a prospectus supplement relating to the Notes, dated October 1, 2001 (the "Prospectus Supplement") (such prospectus, as so supplemented, including the incorporated documents, being hereinafter referred to as the "Prospectus"), the Agency Agreement and the Bond Application, dated October 1, 2001 for authentication and delivery of Notes in an aggregate principal amount not to exceed $200,000,000 (the "Bond Application"). 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 entitled to the benefit of the security provided by the Mortgage, subject to bankruptcy, insolvency, reorganization or other laws of general applicability relating to or affecting mortgagees' and other creditors' rights and to general principles of equity (whether considered in a proceeding at law or in equity); and the Notes and the Mortgage conform to the descriptions thereof in the Prospectus as amended or supplemented;
(5) The Mortgage has been duly authorized, executed and delivered by the Company and constitutes a valid lien to the extent that it purports to be one upon the property described therein as being subject to the lien thereof (except any which has been duly released from the lien thereof) 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 mortgagees' and other creditors' rights and to general principles of equity (whether considered in a proceeding at law or in equity); said Mortgage has been duly recorded and filed in such manner and in such places as are required by law in order to establish, preserve and protect the lien of said Mortgage;
(6) The issue and sale of the Notes in an aggregate principal amount not to exceed the amount set forth in the Bond Application and the compliance by the Company with all of the provisions of the Notes, the Mortgage 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 Restated 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 description of the Company's property in the Mortgage is adequate to constitute the Mortgage a lien thereon. The Company has good and marketable fee title to all real property upon which the Mortgage purports to create a lien, except water rights, leases, licenses, franchises, easements and other interests in real property of a similar nature, as to which it has good and valid title, in each case free and clear of all liens, charges and encumbrances other than excepted encumbrances as defined in the Mortgage and the lien of the Mortgage, subject to minor defects and clouds common to property of the size and character of that of the
Company. Such minor defects and clouds are in my opinion not important and do not materially interfere with the operations of the Company or materially detract from the value of its property;
(8) The Company has such valid franchises, permits, licenses, easements and consents, free from burdensome restrictions, as are required by law for the operation of the Company's system and as are required for the adequate conduct of its business in the territory which it serves;
(9) 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
(10) 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, except that the order of the Idaho Public Utilities Commission grants authority to sell the Notes through September 14, 2003; 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
Executed in 100 Counterparts of which this is Counterpart No. ___
IDAHO POWER COMPANY
TO
BANKERS TRUST COMPANY
AND
STANLEY BURG,
As Trustees under its Mortgage and Deed
of Trust dated as of October 1, 1937.
Thirty-sixth Supplemental Indenture providing among other things for Bonds of MTN Series D Dated as of October 1, 2001
TABLE OF CONTENTS/1/
Page
Parties and Recitals..........................................................1
Granting Clause and Property Description......................................5
ARTICLE I Description of Bonds of MTN Series D
Section 1. General terms and redemption provisions...........................14
Section 2. Exchange and transfers of Bonds...................................15
Section 3. Form of Bonds.....................................................16
Section 4. Temporary Bonds...................................................16
ARTICLE II Issue of Bonds of MTN Series D
Section 5. Issue of Bonds....................................................16
ARTICLE III Covenants
Section 6. Application of Original Indenture.................................16
Section 7. Lawful ownership..................................................17
Section 8. Annual certificate as to defaults.................................17
ARTICLE IV Amendments to Indenture
Section 9. Amendment to Article XVIII........................................17
Section 10. Amendment to Sections 3 and 7....................................23
ARTICLE V The Trustees
Acceptance of trust..........................................................23
Recitals deemed made by the Company..........................................23
ARTICLE VI Miscellaneous Provisions
Meanings of terms............................................................23
Ratification and Confirmation................................................23
Counterparts.................................................................23
Testimonium..................................................................24
Signatures and seals.........................................................24
Acknowledgments..............................................................26
Affidavits...................................................................29
------------------------
/1/ This table of contents shall not have any bearing upon the interpretation
of this Supplemental Indenture.
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SUPPLEMENTAL INDENTURE, dated as of the first day of September, 2001 made and entered into by and between IDAHO POWER COMPANY, a corporation of the State of Idaho (successor by merger to Idaho Power Company, a corporation of the State of Maine, hereinafter sometimes called the "Maine Company"), whose address is 1221 West Idaho Street, Boise, Idaho 83702-5627 (hereinafter sometimes called the "Company"), party of the first part, and BANKERS TRUST COMPANY, a corporation of the State of New York whose post office address is Four Albany Street, New York, N.Y. 10006 (hereinafter sometimes called the "Corporate Trustee"), and Stanley Burg (hereinafter sometimes called the "Individual Trustee"), parties of the second part (the Corporate Trustee and the Individual Trustee being hereinafter together sometimes called the "Trustees"), as Trustees under the Mortgage and Deed of Trust dated as of October 1, 1937 hereinafter referred to; and
WHEREAS, the Maine Company has heretofore executed and delivered to the Trustees its Mortgage and Deed of Trust (hereinafter sometimes referred to as the "Original Indenture"), dated as of October 1, 1937, to secure the payment both of the principal of and interest and premium, if any, on all Bonds at any time issued and outstanding thereunder and to declare the terms and conditions upon which Bonds are to be issued thereunder; and
WHEREAS, the Maine Company was merged into the Company on June 30, 1989; and
WHEREAS, in order to evidence the succession of the Company to the Maine Company and the assumption by the Company of the covenants and conditions of the Maine Company in the Bonds and in the Original Indenture, as supplemented, contained, and to enable the Company to have and exercise the powers and rights of the Maine Company under the Original Indenture, as supplemented, in accordance with the terms thereof, the Company executed and delivered to the Trustees a Twenty-eighth Supplemental Indenture, dated as of June 30, 1989 (which supplemental indenture is hereinafter sometimes called the "Twenty-eighth Supplemental Indenture"); and
WHEREAS, said Twenty-eighth Supplemental Indenture was recorded in the records of the County of Elko, Nevada; the Counties of Baker, Grant, Harney, Malheur, Union and Wallowa, Oregon; the Counties of Ada, Adams, Bannock, Bear Lake, Bingham, Blaine, Boise, Bonneville, Butte, Camas, Canyon, Caribou, Cassia, Clark, Elmore, Gem, Gooding, Idaho, Jefferson, Jerome, Lemhi, Lincoln, Minidoka, Oneida, Owyhee, Payette, Power, Twin Falls, Valley and Washington, Idaho; the Counties of Lincoln and Sweetwater, Wyoming; and with the Secretary of State of Montana; and
WHEREAS, in accordance with the terms of the Original Indenture the Maine Company or the Company has executed and delivered to the Trustees the following supplemental indentures in addition to the Twenty-eighth Supplemental Indenture:
Designation Dated as of
First Supplemental Indenture July 1, 1939
Second Supplemental Indenture November 15, 1943
Third Supplemental Indenture February 1, 1947
Fourth Supplemental Indenture May 1, 1948
Fifth Supplemental Indenture November 1, 1949
Sixth Supplemental Indenture October 1, 1951
Seventh Supplemental Indenture January 1, 1957
Eighth Supplemental Indenture July 15, 1957
Ninth Supplemental Indenture November 15, 1957
Tenth Supplemental Indenture April 1, 1958
Eleventh Supplemental Indenture October 15, 1958
Twelfth Supplemental Indenture May 15, 1959
Thirteenth Supplemental Indenture November 15, 1960
Fourteenth Supplemental Indenture November 1, 1961
Fifteenth Supplemental Indenture September 15, 1964
Sixteenth Supplemental Indenture April 1, 1966
Seventeenth Supplemental Indenture October 1, 1966
Eighteenth Supplemental Indenture September 1, 1972
Nineteenth Supplemental Indenture January 15, 1974
Twentieth Supplemental Indenture August 1, 1974
Twenty-first Supplemental Indenture October 15, 1974
Twenty-second Supplemental Indenture November 15, 1976
Twenty-third Supplemental Indenture August 15, 1978
Twenty-fourth Supplemental Indenture September 1, 1979
Twenty-fifth Supplemental Indenture November 1, 1981
Twenty-sixth Supplemental Indenture May 1, 1982
Twenty-seventh Supplemental Indenture May 1, 1986
Twenty-ninth Supplemental Indenture January 1, 1990
Thirtieth Supplemental Indenture January 1, 1991
Thirty-first Supplemental Indenture August 15, 1991
Thirty-second Supplemental Indenture March 15, 1992
Thirty-third Supplemental Indenture April 1, 1993
Thirty-fourth Supplemental Indenture December 1, 1993
Thirty-fifth Supplemental Indenture November 1, 2000
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each of which is supplemental to the Original Indenture (the Original Indenture and all indentures supplemental thereto together being hereinafter sometimes referred to as the "Indenture"); and
WHEREAS, the Original Indenture and said Supplemental Indentures (except said Fifteenth Supplemental Indenture) have each been recorded in the records of the County of Elko, Nevada; the Counties of Baker, Grant, Harney, Malheur, Union and Wallowa, Oregon; the Counties of Ada, Adams, Bannock, Bear Lake, Bingham, Blaine, Boise, Bonneville, Butte, Camas, Canyon, Caribou, Cassia, Clark, Elmore, Gem, Gooding, Idaho, Jefferson, Jerome,
Lemhi, Lincoln, Minidoka, Oneida, Owyhee, Payette, Power, Twin Falls, Valley and Washington, Idaho; the Counties of Lincoln and Sweetwater, Wyoming; and with the Secretary of State of Montana; and
WHEREAS, the Maine Company or the Company has heretofore issued Bonds, under and in accordance with the terms of the Indenture in the following series and aggregate principal amounts:
Principal Principal
Series Amount Amount
Issued Outstanding
3-3/4% Series due 1967 $18,000,000 None
3-1/8% Series due 1973 18,000,000 None
2-3/4% Series due 1977 5,000,000 None
3% Series due 1978 10,000,000 None
2-3/4% Series due 1979 12,000,000 None
3-1/4% Series due 1981 15,000,000 None
4-1/2% Series due 1987 20,000,000 None
4-3/4% Series due 1987 15,000,000 None
4% Series due April 1988 10,000,000 None
4-1/2% Series due October 1988 15,000,000 None
5% Series due 1989 15,000,000 None
4-7/8% Series due 1990 15,000,000 None
4-1/2% Series due 1991 10,000,000 None
5-1/4% Series due 1996 20,000,000 None
6-1/8% Series due 1996 30,000,000 None
7-3/4% Series due 2002 30,000,000 None
8-3/8% Series due 2004 35,000,000 None
10% Series due 2004 50,000,000 None
8-1/2% Series due 2006 30,000,000 None
9% Series due 2008 60,000,000 None
10-1/4% Series due 2003 62,000,000 None
First Mortgage Bonds, 1984 Series 10,100,000 None
16.10% Series due 1991-1992 50,000,000 None
Pollution Control Series A 49,800,000 49,800,000
8.65% Series due 2000 80,000,000 None
9.50% Series due 2021 75,000,000 75,000,000
9.52% Series due 2031 25,000,000 None
8% Series due 2004 50,000,000 50,000,000
8 3/4% Series due 2027 50,000,000 50,000,000
Secured Medium-Term Notes, Series A 190,000,000 160,000,000
Secured Medium-Term Notes, Series B 197,000,000 197,000,000
Secured Medium-Term Notes, Series C 200,000,000 200,000,000
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which bonds are hereinafter sometimes called bonds of the First through Thirty-second Series; and
WHEREAS, the Company, in accordance with the provisions of the Indenture and pursuant to appropriate resolutions of its Board of Directors, has duly determined to make, execute and deliver to the Trustees this Thirty-sixth Supplemental Indenture for the purposes herein provided, including the issuance of a Thirty-third Series of Bonds under the Indenture, in the aggregate principal amount of up to Two hundred Million Dollars ($200,000,000), to be designated as "First Mortgage Bonds, Secured Medium-Term Notes, Series D" (herein sometimes called the "Bonds of MTN Series D"); and
WHEREAS, in the Twenty-third Supplemental Indenture, the Company reserved the right, without any consent or other action by bondholders of bonds of the 2008 Series, or of any subsequent series, to amend the Indenture in certain respects; and
WHEREAS, no bonds issued prior to the 2008 Series remain outstanding, and the Company has determined to exercise its right to amend the Indenture as provided in the Twenty-third Supplemental Indenture; and
WHEREAS, it is also now desired, for the purpose of more effectually carrying out the purposes of the Original Indenture, to confirm specifically the subjection to the lien thereof and of the Indenture of the certain property acquired by the Company in addition to the property specifically described in the Original Indenture and in said First, Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Sixteenth, Seventeenth, Eighteenth, Nineteenth, Twenty-first, Twenty-second, Twenty-third, Twenty-fourth, Twenty-fifth, Twenty-sixth, Twenty-seventh, Twenty-eighth, Twenty-ninth, Thirtieth, Thirty-first, Thirty-second, Thirty-third, Thirty-fourth and Thirty-fifth Supplemental Indentures; and
WHEREAS, all things necessary to make said Bonds of MTN Series D, when duly authenticated by the Corporate Trustee and issued by the Company, valid and legally binding obligations of the Company and to make the Original Indenture, as heretofore supplemented and as supplemented hereby, a valid and legally binding instrument for the security thereof, have been performed, and the execution and delivery of this Thirty-sixth Supplemental Indenture and the issue of said Bonds as in this Thirty-sixth Supplemental Indenture provided have been in all respects duly authorized:
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in consideration of the premises and of One Dollar to it duly paid by the Trustees at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, and in order to secure the payment both of the principal of and interest and premium, if any, on all Bonds at any time issued and outstanding under the Indenture, according to their tenor and effect, and the performance of all the provisions of the Indenture and of said Bonds, the Company has duly executed and delivered to the Trustees this Thirty-sixth Supplemental Indenture and has granted, bargained, sold, released, conveyed, assigned, transferred, mortgaged, pledged, set over and confirmed and by these presents does grant, bargain, sell, release, convey, assign, transfer, mortgage, pledge, set over and confirm unto Stanley Burg and (to the extent of its legal capacity to hold the same for the purposes hereof) unto Bankers Trust Company, as Trustees as aforesaid, and to their successor or successors in
said trust, and to them and their successors, heirs and assigns forever, all property, whether real, personal or mixed (except any hereinafter expressly excepted), and wheresoever situated, acquired since the date of said Original Indenture by and now or hereafter owned by the Company including the following described properties, rights and interests in property (in addition to all other properties heretofore subjected to the lien of the Indenture and not heretofore released from the lien thereof)--that is to say:
PROPERTIES ACQUIRED OR CONSTRUCTED
GENERATING PLANTS
Swan Falls Hydro Ada County, Idaho Milner Hydro Project Twin Falls County, Idaho
(1) The Company's 50% share of the North Valmy #2 Steam Plant, located in Humbolt County, Nevada
(2) Cascade Dam Power Development located on North Fork Payette River in Valley County, Idaho
111 - The Company's 50% share of the North Valmy plant located in Humboldt County, Nevada
11H - The fifth unit of the Brownlee Power Plant located in Adams County, on the Snake River
TRANSMISSION LINES & SYSTEMS
909 Imnaha-Divide Creek (20.23) Miles 230 IV (sold) Wallowa County, Oregon 219 Gem-Caldwell 0.03 Miles added 69KV Canyon County, Idaho 236 Evergreen Tap 0.02 Miles added 69KV Adams County, Idaho 453 Gowen Tap 1.99 Miles 138KV Ada County, Idaho 456 HP-Eagle Tap 2.54 Miles 138KV Ada County, Idaho 459 Locust-Blackcat 7.01 Miles 138KV Ada County, Idaho 172 - EastgateRusset 2.12 miles 138 Kv line Twin Falls County, Idaho 169 - Pioneer Transmission Line Regulating Station Bingham County, Idaho 170 - Milner 138KV Transmission Line Cassia County, Idaho 171 - Caldwell/Homedale - 3.5 Miles 69KV Line SSI Canyon County, Idaho 167 - Hazelton A CSPP Protection & Relay Facility Jerome County, Idaho |
168 - Portneuf 138 KV Tap - consisting of 5 miles of single circuit 138 KV transmission line from the Freemont-Terry line of Portneuf substation, all located in Bannock County, Idaho
165 - Midpoint/Silver/Wood River 138 Kv line - consisting of approximately 69 miles of 138 Kv single and two pole transmission line between the Midpoint Substation, the Silver Substation and the Wood River Substation, located in Lincoln and Blaine Counties, Idaho
166 - Hewlett-Packard 138 Kv Tap - consisting of approximately .82 miles of single pole 138 Kv line from structure #21 of the Locust Tap line to the Hewlett-Packard Substation, all located in Ada County, Idaho
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158 - Midpoint, 500 Kv yard Jerome County, Idaho
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159 - Mitchell Butte CSPP,
Protection & Relay Facility Malheur County, Oregon
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160 - Magic Reservoir CSPP, Protection & Relay Facility Blaine County, Idaho
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161 - Bypass CSPP, Protection & Relay Facility Jerome County, Idaho
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162 - Dietrich Drop CSPP, Protection & Relay Facility Lincoln County, Idaho
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164 - Dietrich Drop CSPP, 69 Kv Tap - consisting of approximately one mile of 69 Kv transmission line connecting Dietrich Drop CSPP with Idaho Power Company's line 128, all in Lincoln County, Idaho
-------------------------- ---------------------------- ------------------------ 154 - Lucky Peak 138 Kv Switchyard Ada County, Idaho -------------------------- ---------------------------- ------------------------ -------------------------- ---------------------------- ------------------------ 155 - Meg 69 Kv Regulator Station Owyhee County, Idaho -------------------------- ---------------------------- ------------------------ |
156 - Lucky Peak 138 Kv line - consisting of approximately 4.5 miles of double circuit 138 Kv transmission line from a point on the Boise Bench - Lower Malad 138 Kv line to the Lucky Peak Power Plant, all located in Ada County, Idaho
157 - Mountain Home Air Base Tap - consisting of 1.35 miles of 138 Kv single pole and 4.98 miles of 139 Kv H-Frame transmission line to supply Mountain Home Air Force Base, all located in Elmore County, Idaho
150 - Pocatello/Inkom Junction 46 Kv line - consisting of 9.8 miles which connects Idaho Power Company's line 126 (Pocatello - Halliday Jct - City Limits 46 Kv) with line 164 (Mink Creek Loop 46 Kv) and line 122 (Inkom Jct - Idaho Portland Cement Co.), all located in Bannock County, Idaho
-------------------------- ---------------------------- ------------------------ 151 - Schaffner CSPP Protection & Relay Facility Lemhi County, Idaho -------------------------- ---------------------------- ------------------------ -------------------------- ---------------------------- ------------------------ |
153 - Schaffner CSPP 69 Kv Tap - consisting of approximately 2900' if transmission line connecting Schaffner CSPP with Idaho Power Company's line 238, all in Lemhi County, Idaho
-------------------------- ---------------------------- ------------------------ 147 - Phosphate CSPP Protection & Relay Facility Power County, Idaho -------------------------- ---------------------------- ------------------------ |
148 - Boise Cascade Cogeneration 69 Kv Tap - An 800 foot long 69 Kv transmission line tap from the existing Boise Cascade 69 Kv "sawmill" tap line to the Boise Cascade 15 MVA Cogeneration Project Substation, all in Gem County, Idaho
149 - Eagle Picher - 69 Kv Tap to Hope Sub - A 69 Kv tap line to the Hope Substation, all in Malheur County, Oregon
-------------------------- ---------------------------- ------------------------ 139 - Evergreen CSPP Protection & Relay Facility Adams County, Idaho -------------------------- ---------------------------- ------------------------ 140 - Cedar Draw CSPP Protection & Relay Facility Twin Falls County, Idaho -------------------------- ---------------------------- ------------------------ 141 - Rock Creek CSPP Protection & Relay Facility Twin Falls County, Idaho -------------------------- ---------------------------- ------------------------ 142 - Dunaway CSPP Protection & Relay Facility Malheur County, Idaho -------------------------- ---------------------------- ------------------------ 143 - Owyhee Dam CSPP Protection & Relay Facility Malheur County, Idaho -------------------------- ---------------------------- ------------------------ 144 - Boise Cascade CSPP Protection & Relay Facility Gem County, Idaho -------------------------- ---------------------------- ------------------------ 145 - Pigeon Cove CSPP Protection & Relay Facility Twin Falls County, Idaho -------------------------- ---------------------------- ------------------------ 146 - Low Line Canal CSPP Protection & Relay Facility Twin Falls County, Idaho -------------------------- ---------------------------- ------------------------ |
16E - Cedar Draw 46 Kv Tap - A 69 Kv tap line operating at 46 Kv starting at the Thousand Springs-Twin Falls 46 Kv line and running 2.0 miles north to the Cedar Draw CSPP Plant all in Twin Falls County, Idaho
16F - Pigeon Cove 46 Kv tap - A 69 Kv tap line operating at 46 Kv starting at the Cedar Draw 46 Kv Tap and running 3.04 miles east to the Pigeon Cove CSPP Plant all in Twin Falls County, Idaho
6C - Evergreen 69 Kv Tap - A 69 Kv tap line starting at the Council-New Meadows 69 Kv line and running .25 miles west to the Evergreen CSPP Plant all in Adams County, Idaho
19B - Low Line Canal 46 Kv Tap - A 69 Kv tap line operating at 46 Kv starting at the Artesian 46 Kv line and running 4.4 miles west to the Low Line Canal CSPP Plant all in Twin Falls County, Idaho
3B - Micron 138 Kv Loop - A 138 Kv loop staring at the Boise Bench-Lower Malad 138 Kv loop. This loop will run .5 miles into the new Micron Technology Substation and .5 miles back to the existing line
138 - Rock Creek 46 Kv Tap - A 69 Kv tap line starting at the Thousand Springs-Twin Falls 46 Kv line and running 3.8 miles north to the Rock Creek Small Power Production Plant all in Twin Falls County, Idaho
137 - Lemhi - New Lemhi Substation 69 Kv line: A 69 Kv line starting at the existing Lemhi Substation and running easterly for approximately 1/3 mile to the New Lemhi Substation, all in Lemhi County, Idaho
132 - Boise Bench: Construction of new dispatch center located in Ada County, Idaho
133 - The Kinport-Borah 345 Kv Line: a 345 Kv Line starting at the Kinport Substation in Power County running westerly approximately 27.3 miles to a point near Midpoint Substation located in Jerome County, all in Idaho
134 - Silver-Hailey 138 Kv: A 138 Kv Line starting at Hailey Substation in Blaine County running 22 miles in a southeasterly direction to the proposed Silver Substation in Blaine County, all in Idaho
135 - Cliff/Hunt-Eastgate Substation: A 138 Kv Line, it originates as a tap off of Cliff-Hunt in Jerome County running southwesterly approximately 8.3 miles to Eastgate Substation in Twin Falls County, all in Idaho
136 - Boise Bench-Cloverdale 230 Kv Line: A 230 Kv Line beginning at intersection of Overland and Union Pacific Railroad tracks in Ada County running west, northwesterly approximately 7.7 miles to Cloverdale Substation in Ada County, all in Idaho
130 - The Borah-Midpoint 500 Kv line; a 500 Kv line starting at a point near the Borah transmission station in Power County, running in a westerly direction 85 miles through Power, Blaine, Minidoka and Jerome Counties, to the Midpoint transmission station in Jerome County, all in Idaho
131 - The west side of the Rock Springs-Jim Bridger-Dave Johnson Loop. The Company's 1/3 share of said loop, starting at the Jim Bridger Switchyard running south 8.34 miles to a location called Point of Rocks, all in Sweetwater County, Wyoming
122 - The Peterson-Tendoy 69 Kv Line; a 69 Kv line starting at the Tendoy Station in Lemhi County, Idaho, running 34.3 miles in an easterly direction to the Peterson Station in Beaverhead County, Montana
123 - The Midpoint-Hunt 345 Kv Line, a 345 Kv line starting at a point near the Hunt Station in Jerome County running 17.8 miles in a northwest direction to the Midpoint Station located in Jerome County, all in Idaho
124 - The Victory Substation Tap, a 138 Kv tap of 2.4 miles connecting to the existing Mora-Cloverdale Line at the intersection of Cloverdale and Victory Roads running in an easterly direction to the intersection of Victory and Maple Grove Roads then in a northerly direction to the Victory Substation site all in Ada County, Idaho
125 - The Midpoint-Hailey 138 Kv Line (Midpoint-Notch Butte Section), a 138 Kv line starting at a point near the Midpoint Station running in a westerly direction 1.2 miles then in a southerly direction .5 miles to the Notch Butte Substation all in Jerome County, Idaho
126 - The Rockford-Haven 138 Kv Line, a 138 Kv line starting at the Rockford Substation running in a northerly direction 3.5 miles to the new Haven Substation all located in Bingham County, Idaho
127 - The Midpoint-Twin Falls 138 Kv Line (Midpoint-Hydra Section), a 138 Kv line starting at the Midpoint Station in Jerome County running in a southwesterly direction 12.8 miles to a pont on the existing Twin Falls Tap #1-Hydra 138 Kv Line (near the Hydra Substation) in Jerome County, Idaho
128 - The Aiken Sub to American Potato 138 Kv Line, a 138 Kv line starting at the Aiken Substation running 2.6 miles in a southeasterly direction to the American Potato plant all in Bingham County, Idaho
129 - The Blackfoot Sub-Blackfoot Tap 161 Kv Loop, a 161 Kv line starting at the Blackfoot Substation running 2.6 miles in a southeasterly direction to tap on the Don-Goshen 161 Kv Line all in Bingham County, Idaho
119 - The Payette Substation 138 Kv Loop-In, a .33 mile tap to connect the Payette Substation to the Emmett-Ontario 138 Kv Line near Payette, in Payette County, Idaho
120 - The Nelson Substation Tap, a 1 mile tap to connect the Nelson Substation to the Ontario-Quartz 138 Kv Line near Durkee, in Baker County, Idaho
121 - The Peterson Transmission Station located near Metlen, in Beaverhead County, Montana
114 - The Idaho Section of the Oreana-Hunt 345 Kv Line - a line approximately 57 miles in length starting at the Hunt Transmission Station in Jerome County, running in a southerly direction through Jerome and Twin Falls Counties, all in Idaho, to a point on the Nevada-Idaho border near Jackpot, Nevada.
115 - The Mill Sub Tap, a .8 mile tap to connect the Mill Sub to the McCall-Emmett 69 Kv Line, located near Cascade, in Valley County, Idaho
116 - The Toponis 138 Kv Tap Line - a 138 Kv tap line starting at the King-Wood River 138 Kv Line; running 2.25 miles in an easterly direction to the new Toponis Substation near the City of Gooding, in Gooding County, Idaho
117 - The Locust Sub 138 Kv Tap - a 138 Kv tap line starting at the corner of Ustick & Cloverdale Roads running 1 mile north and then running west 2 miles to the new Locust Substation at the corner of McMillan and North Locust Grove Roads, between the cities of Boise and Meridian, in Ada County, Idaho
118 - The Twin Falls Sub-Russet Sub 138 Kv Line - a line starting at the Twin Falls Substation running 1.8 miles in a southerly direction to the new Russet Substation, all in the City of Twin Falls, Twin Falls County, Idaho
DISTRIBUTION LINES & SYSTEMS
34, 35, 36, 37 and 38 - Branches and extensions of the Company's Distribution Lines and Systems situated in the States of Idaho, Oregon and Nevada
SUBSTATIONS ----------------------------------------- -------------------------------------- Ash Grove Metering Station Baker County, Oregon ----------------------------------------- -------------------------------------- Vallivue Substation Canyon County, Idaho ----------------------------------------- -------------------------------------- Bethel Court Substation Ada County, Idaho ----------------------------------------- -------------------------------------- ----------------------------------------- -------------------------------------- 39 - Gowen Substation Ada County, Idaho ----------------------------------------- -------------------------------------- Easton Substation Malheur County, Idaho ----------------------------------------- -------------------------------------- Ten Mile Substation Ada County, Idaho ----------------------------------------- -------------------------------------- ----------------------------------------- -------------------------------------- 39 - Black Cat Substation Ada County, Idaho ----------------------------------------- -------------------------------------- Hidden Springs Substation Ada County, Idaho ----------------------------------------- -------------------------------------- Highland Substation Bannock County, Idaho ----------------------------------------- -------------------------------------- ----------------------------------------- -------------------------------------- 39 - Smiths Ferry Substation Valley County, Idaho ----------------------------------------- -------------------------------------- Karcher Substation Canyon County, Idaho ----------------------------------------- -------------------------------------- ----------------------------------------- -------------------------------------- 39 - Scott Valley Substation Valley County, Idaho ----------------------------------------- -------------------------------------- ----------------------------------------- -------------------------------------- 39 - Dram Substation Ada County, Idaho ----------------------------------------- -------------------------------------- Armocost Substation Adams County, Idaho ----------------------------------------- -------------------------------------- Bear Track Substation Lemhi County, Idaho ----------------------------------------- -------------------------------------- ----------------------------------------- -------------------------------------- 39 - Rockville Substation Malheur County, Oregon ----------------------------------------- -------------------------------------- ----------------------------------------- -------------------------------------- 39 - Wilder Substation Canyon County, Idaho ----------------------------------------- -------------------------------------- Lincoln Substation Lincoln County, Idaho ----------------------------------------- -------------------------------------- ----------------------------------------- -------------------------------------- 39 - Zilog Substation Canyon County, Idaho ----------------------------------------- -------------------------------------- Sugar Substation Minidoka County, Idaho ----------------------------------------- -------------------------------------- ----------------------------------------- -------------------------------------- 39 - Portneuf Substation and land Bannock County, Idaho ----------------------------------------- -------------------------------------- Hill Substation Canyon County, Idaho ----------------------------------------- -------------------------------------- Steck Park Substation Washington County, Idaho ----------------------------------------- -------------------------------------- ----------------------------------------- -------------------------------------- 39 - Hewlett-Packard Substation Ada County, Idaho ----------------------------------------- -------------------------------------- Silver Substation Blaine County, Idaho ----------------------------------------- -------------------------------------- ----------------------------------------- -------------------------------------- 39 - Gary Substation Ada County, Idaho ----------------------------------------- -------------------------------------- ----------------------------------------- -------------------------------------- |
39 - Hope Station Malheur County, Oregon ----------------------------------------- -------------------------------------- New Plymouth Substation Payette County, Idaho ----------------------------------------- -------------------------------------- ------------------------- ---------------------------- ------------------------ 39 - Biggs CSPP Protection & Relay Facility Twin Falls County, Idaho ------------------------- ---------------------------- ------------------------ Black Canyon #3 CSPP Protection & Relay Facility Gooding County, Idaho ------------------------- ---------------------------- ------------------------ Birch Creek Trout CSPP Protection & Relay Facility Gooding County, Idaho ------------------------- ---------------------------- ------------------------ Koyle CSPP Protection & Relay Facility Gooding County, Idaho ------------------------- ---------------------------- ------------------------ North Side Canal CSPP Protection & Relay Facility Gooding County, Idaho ------------------------- ---------------------------- ------------------------ Ravenscroft CSPP Protection & Relay Facility Gooding County, Idaho ------------------------- ---------------------------- ------------------------ Curry Cattle Co CSPP Protection & Relay Facility Twin Falls County, Idaho ------------------------- ---------------------------- ------------------------ Kasel/Witherspoon CSPP Protection & Relay Facility Twin Falls County, Idaho ------------------------- ---------------------------- ------------------------ Clear Springs Trout CSPP Protection & Relay Facility Twin Falls County, Idaho ------------------------- ---------------------------- ------------------------ Richard Kaster CSPP Protection & Relay Facility Twin Falls, County, Idaho ------------------------- ---------------------------- ------------------------ |
39 - Micron Substation, Ada County, Idaho Ampot Substation, Bingham County, Idaho
39 - Lemhi Substation - New Lemhi Substation, Lemhi County, Idaho
39 - Boise Dispatch Center - New Central Division Dispatch Center, Ada County, Idaho
39 - The Victory Substation located in Ada County near Boise, Idaho
The Fairfield Substation located in Camas County near Fairfield, Idaho
The Haven Substation located in Bingham County near Rockford, Idaho
39 - The Locust Substation located in Ada County, near Boise, Idaho
39 - The Aiken Substation located in Bingham County, near Blackfoot, Idaho
The Moonstone Substation located in Blaine County, near Hailey, Idaho
The Toponis Substation located in Gooding County, near Gooding, Idaho
The Payette Substation located in Payette County, near Payette, Idaho
The Russet Substation located in Twin Falls County, in Twin Falls, Idaho
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The Donnelly Substation located in Valley County, near Donnelly, Idaho
FRANCHISES
None
ALL OTHER LANDS, IMPROVEMENTS, BUILDINGS AND OTHER SUBSTATIONS
------------------------------------------- ------------------------------------
43 - Corporate Headquarters Ada County, Idaho
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43 - CHQ Parking - Peterson Property Purch Ada County, Idaho
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43 - Nyssa District Office Malheur County, Oregon
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43 - Canyon Operations Center Canyon County, Idaho
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43 - Emmet Operations Center Gem County, Idaho
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43 - American Falls District Office Power County, Idaho
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11
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43 - Hills Canyon Complex Baker County, Oregon
and Maintenance Shop & Warehouse
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43 - Homedale Office Land and Building Owyhee County, Idaho
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43 - Pocatello - Deaton Property Bannock County, Idaho
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43 - Homedale Crew & Warehouse Facility Canyon County, Idaho
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43 - Gooding Office Land & Building Gooding County, Idaho
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43 - Mountain City Office and Elko County, Idaho
Residence Site
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43 - Firestone Property Ada County, Idaho
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Brookover Property Ada County, Idaho
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Sears Parking Lot Ada County, Idaho
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Shoemaker Property Ada County, Idaho
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New Glenns Ferry Office Elmore County, Idaho
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Canyon Operations Center Property Canyon County, Idaho
------------------------------------------- ------------------------------------
Emmett Operations Center Property Gem County, Idaho
------------------------------------------- ------------------------------------
New Truck Garage, Jerome County, Idaho
Jerome Substation
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Twin Falls Operations Center Twin Falls County, Idaho
Expansion (land only)
------------------------------------------- ------------------------------------
Cambridge - Construct Crew Room Washington County, Idaho
and Warehouse
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43 - Blackfoot Storage Building Bingham County, Idaho
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McCall District Office Valley County, Idaho
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43 - Hagerman Maintenance Shop - Gooding County, Idaho
New Hagerman Maintenance Shop
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Mini - Cassia Service Center - Minidoka County, Idaho
New Mini-Cassia Service Center
------------------------------------------- ------------------------------------
43 - The Boise Division Office located Ada County, Idaho
in Boise
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The addition to the Pocatello Service Bannock County, Idaho
Center, known as the B-Mart property in
Pocatello
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located in Mountain Home
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The Company's McCall Storage Garage Valley County, Idaho
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The Company's Salmon Office Lemhi County, Idaho
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All other property, whether real, personal or mixed (except any hereinafter expressly excepted), and wheresoever situated, acquired since the date of said Original Indenture by and now or hereafter owned by the Company.
TOGETHER with all and singular the tenements, hereditaments and appurtenances belonging or in any wise appertaining to the aforesaid property or any part thereof, with the reversion and reversions, remainder and remainders, and (subject to the provisions of Section 57 of the Original Indenture) the tolls, rents, revenues, issues, earnings,
income, product and profits thereof, and all the estate, right, title and interest and claim whatsoever, at law as well as in equity, which the Company now has or may hereafter acquire in and to the aforesaid property and franchises and every part and parcel thereof.
It is not intended herein or hereby to include in or subject to the lien of
the Indenture, and the granting clauses hereof shall not be deemed to apply to,
(1) any revenues, earnings, rents, issues, income or profits of the mortgaged
and pledged property, or any bills, notes or accounts receivable, contracts or
choses in action, except to the extent permitted by law in case a completed
default specified in Section 65 of the Indenture shall have occurred and be
continuing and either or both of the Trustees, or a receiver or trustee, shall
have entered upon or taken possession of the mortgaged and pledged property, or
(2) in any case, unless specifically subjected to the lien thereof, any bonds,
notes, evidences of indebtedness, shares of stock, or other securities or any
cash (except cash deposited with the Corporate Trustee pursuant to any
provisions of the Indenture) or any goods, wares, merchandise, equipment or
apparatus manufactured or acquired for the purpose of sale or resale in the
usual course of business.
TO HAVE AND TO HOLD all such properties, real, personal and mixed, granted, bargained, sold, released, conveyed, assigned, transferred, mortgaged, pledged, set over or confirmed by the Company as aforesaid, or intended so to be, unto the Individual Trustee and (to the extent of its legal capacity to hold the same for the purposes hereof) unto the Corporate Trustee, and their successors, heirs and assigns forever;
IN TRUST, NEVERTHELESS, for the same purposes and upon the same terms, trusts and conditions and subject to and with the same provisions and covenants as are set forth in the Original Indenture, as amended or modified by said First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth, Nineteenth, Twentieth, Twenty-first, Twenty-second, Twenty-third, Twenty-fourth, Twenty-fifth, Twenty-sixth, Twenty-seventh, Twenty-eighth, Twenty-ninth, Thirtieth, Thirty-first, Thirty-second, Thirty-third, Thirty-fourth and Thirty-fifth Supplemental Indentures and this Thirty-sixth Supplemental Indenture.
And it is hereby covenanted, declared and decreed by and between the parties hereto, for the benefit of those who shall hold the Bonds and interest coupons, or any of them, issued and to be issued under the Indenture, as follows:
ARTICLE I
Description of Bonds of MTN Series D
Section 1. The Thirty-third Series of Bonds to be executed, authenticated and delivered under and secured by the Indenture shall be Bonds of MTN Series D, designated as "First Mortgage Bonds, Secured Medium-Term Notes, Series D" of the Company. The Bonds of MTN Series D shall be executed, authenticated and delivered in accordance with the provisions of, and shall in all respects be subject to, all of the terms, conditions and covenants of the Original Indenture, except insofar as the terms and provisions of the Original Indenture have been or are amended or modified by said First through Thirty-fifth Supplemental Indentures or by this Thirty-sixth Supplemental Indenture. Bonds of MTN Series D shall be issued from time to time in an aggregate principal amount not to exceed $200,000,000, be issued as registered Bonds without coupons in the denominations of $1,000 or in any multiple thereof; each Bond of MTN Series D shall mature on such date not less than nine months nor more than thirty years from date of issue, shall bear interest at such rate or rates (which may be either fixed or variable) and have such other terms and provisions not inconsistent with the Indenture as the Board of Directors may determine in accordance with a resolution filed with the Corporate Trustee and a written order referring to this Thirty-sixth Supplemental Indenture; the principal of and interest on each said Bond to be payable at the office or agency of the Company in the Borough of Manhattan, The City of New York and, at the option of the Company, interest on each said Bond may also be payable at the office of the Company in Boise, Idaho, in such coin or currency of the United States of America as at the time of payment is legal tender for public and private debts. Interest on Bonds of MTN Series D which bear interest at a fixed rate shall be payable semiannually on April 1 and October 1 of each year or on such other dates as set forth in a resolution filed with the Corporate Trustee referring to this Thirty-sixth Supplemental Indenture and at maturity or upon earlier redemption (each an interest payment date). Interest on Bonds of MTN Series D which bear interest at a variable rate shall be payable on the dates (each an interest payment date) set forth in a resolution filed with the Corporate Trustee referring to this Thirty-sixth Supplemental Indenture.
Notwithstanding the foregoing, so long as there is no existing default in the payment of interest on the Bonds of MTN Series D, all Bonds of MTN Series D authenticated by the Corporate Trustee after the Record Date hereinafter specified for any interest payment date, and prior to such interest payment date (unless the date of first authentication of Bonds of such designated interest rate and maturity is after such Record Date), shall be dated the date of authentication, but shall bear interest from such interest payment date, and the person in whose name any Bond of MTN Series D is registered at the close of business on any Record Date with respect to any interest payment date shall be entitled to receive the interest payable on such interest payment date, notwithstanding the cancellation of such Bond of MTN Series D, upon any transfer or exchange thereof subsequent to the Record Date and on or prior to such interest payment date. If the date of first authentication of the Bonds of MTN Series D of a designated interest rate and maturity is after such Record Date and prior to the corresponding interest payment date, such Bonds shall bear interest from the Original Interest Accrual Date but payment of interest shall commence on the second interest payment date succeeding the Original Interest Accrual Date. "Record Date" for Bonds of MTN Series D which bear interest at a fixed rate shall mean March 15 for interest payable April 1 and September 15 for interest payable
October 1, for Bonds of MTN Series D which bear interest at a fixed rate that is payable on other dates, shall mean 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 fifteenth day of the calendar month preceding such interest payment date if such interest payment date is the first day of a calendar month, as determined by the Board of Directors and set forth in a resolution filed with the Corporate Trustee referring to this Thirty-sixth Supplemental Indenture; and for Bonds of MTN Series D which bear interest at a variable rate, the date 15 calendar days prior to any interest payment date, provided that, interest payable on the maturity date will be payable to the person to whom the principal thereof shall be payable. "Original Interest Accrual Date" with respect to Bonds of MTN Series D of a designated interest rate and maturity shall mean the date of first authentication of Bonds of such designated interest rate and maturity unless a written order filed with the Corporate Trustee on or before such date shall specify another date from which interest shall accrue, in which case "Original Interest Accrual Date" shall mean such other date specified in the written order for Bonds of such designated interest rate and maturity.
The Bonds of MTN Series D, in definitive form, shall be, at the option of the Company, fully engraved or shall be lithographed or printed on steel engraved borders or shall be partially lithographed or printed and partially engraved on steel borders or shall be printed on safety paper or shall be typewritten.
The holders of the Bonds of MTN Series D consent that the Company may, but shall not be obligated to, fix a record date for the purpose of determining the holders of Bonds of MTN Series D entitled to consent to any amendment, supplement or waiver. If a record date is fixed, those persons who are holders at such record date (or their duly designated proxies), and only those persons, shall be entitled to consent to such amendment, supplement or waiver or to revoke any consent previously given, whether or not such persons continue to be holders after such record date. No such consent shall be valid or effective for more than 90 days after such record date.
The Bonds of MTN Series D may be redeemable at the option of the Company
(including without limitation redemptions by the application of cash deposited
with the Corporate Trustee pursuant to Section 39 of the Indenture) in whole at
any time, or in part from time to time, prior to maturity, as provided in
Section 52 of the Indenture, upon giving notice of such redemption by first
class mail, postage prepaid, by or on behalf of the Company at least thirty (30)
days prior to the date fixed for redemption as the Board of Directors may
determine in accordance with a resolution filed with the Corporate Trustee and a
written order referring to this Thirty-sixth Supplemental Indenture.
Section 2. At the option of the registered holder, any Bonds of MTN Series D, upon surrender thereof for cancellation at the office or agency of the Company in the Borough of Manhattan, The City of New York, together with a written instrument of transfer (if so required by the Company or by the Trustees) in form approved by the Company duly executed by the registered holder or by his duly authorized attorney, shall be exchangeable for a like aggregate principal amount and maturity of Bonds of MTN Series D of other authorized denominations. Bonds of MTN Series D may bear such legends as may be necessary to comply with any law or with any rules or regulations made pursuant thereto or with the rules or regulations of any stock exchange or to conform to usage with respect thereto.
Bonds of MTN Series D shall be transferable at the office or agency of the Company in the Borough of Manhattan, The City of New York.
Notwithstanding the foregoing provisions of this Section 2, the Company shall not be required to make any transfers or exchanges of Bonds of MTN Series D for a period of fifteen (15) days next preceding any mailing of notice of redemption, and the Company shall not be required to make transfers or exchanges of the principal amount of any Bonds of MTN Series D so called or selected for redemption.
Section 3. The Bonds of MTN Series D shall be substantially of the tenor and purport recited in the Original Indenture, and the form thereof shall be as established by resolution of the Board of Directors or the Executive Committee of the Board of Directors of the Company, which resolution may provide that any provisions of such form of Bond may appear on the reverse of such form.
Section 4. Until Bonds of MTN Series D in definitive form are ready for delivery, the Company may execute, and upon its request in writing, the Corporate Trustee shall authenticate and deliver, in lieu thereof, Bonds of MTN Series D in temporary form, as provided in Section 15 of the Original Indenture.
ARTICLE II
Issue of Bonds of MTN Series D.
Section 5. The Bonds of MTN Series D for the aggregate principal amount of up to Two Hundred Million Dollars ($200,000,000) may be executed by the Company and delivered to the Corporate Trustee and shall be authenticated by the Corporate Trustee and delivered to or upon the order or orders of the Company, evidenced by a writing or writings signed by the Company by its President or a Vice President and its Treasurer or an Assistant Treasurer, pursuant to and upon compliance with the provisions of Article V, Article VI or Article VII of the Indenture.
ARTICLE III
Covenants.
The Company hereby covenants, warrants and agrees:
Section 6. That all the terms, conditions, provisos, covenants and provisions contained in the Indenture shall affect and apply to the property hereinabove described and conveyed and to the estate, rights, obligations and duties of the Company and Trustees and the beneficiaries of the trust with respect to said property, and to the Trustees and their successors as trustees of said property, in the same manner and with the same effect as if the said property had been owned by the Company at the time of the execution of the Original Indenture and had been specifically and at length described in and conveyed to the Individual Trustee and (to the extent of its legal capacity to hold the same for the purposes of the Indenture) the Corporate Trustee by the Original Indenture as a part of the property therein stated to be conveyed.
Section 7. That it is lawfully seized and possessed of all of the mortgaged and pledged property described in the granting clauses of the Indenture, which has not heretofore been released from the lien thereof; that it had or has, at the respective times of execution and delivery of the Original Indenture, the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth, Nineteenth, Twentieth, Twenty-first (as corrected by the Twenty-second), Twenty-second, Twenty-third, Twenty-fourth, Twenty-fifth, Twenty-sixth, Twenty-seventh, Twenty-eighth, Twenty-ninth, Thirtieth, Thirty-first, Thirty-second, Thirty-third, Thirty-fourth and Thirty-fifth Supplemental Indentures, and this Thirty-sixth Supplemental Indenture, good right and lawful authority to mortgage and pledge the mortgaged and pledged property described therein, as provided in and by the Indenture; and that such mortgaged and pledged property is, at the actual date of the initial issue of the Bonds of MTN Series D, free and clear of any mortgage, lien, charge or encumbrance thereon or affecting the title thereto (other than excepted encumbrances) prior to the lien of the Indenture, except as set forth in the granting clauses of the Indenture.
Section 8. That it will deliver to the Corporate Trustee annually, within ninety (90) days after the close of each fiscal year, commencing with the fiscal year 2001, a certificate from the principal executive officer, principal financial officer or principal accounting officer as to his or her knowledge of the Company's compliance with all conditions and covenants under the Indenture. For purposes of this Section 8, such compliance shall be determined without regard to any period of grace or requirement of notice provided under the Indenture.
ARTICLE IV
Amendments to Indenture
Section 9. Article XVIII of the Indenture is amended to read in its entirety as follows:
"ARTICLE XVIII
Meetings And Consents Of Bondholders
SECTION 107. Modifications and alterations of this Indenture and/or of any indenture supplemental hereto and/or of the rights and obligations of the Company and/or of the rights of the holders of bonds and coupons issued hereunder may be made as provided in this Article XVIII.
SECTION 108. The Corporate Trustee may at any time call a meeting of the bondholders and it shall call such a meeting on written request of the holders of not less than a majority in principal amount of the bonds outstanding hereunder at the time of such request. The Company, pursuant to a resolution of its Board of Directors, may also call a meeting of the bondholders at any time. In each such case the purpose or purposes of such meeting shall be set forth in reasonable detail. In the event of the Corporate Trustee's failing for ten (10) days to call a meeting after being thereunto requested by the bondholders as above set forth, holders of outstanding bonds in the amount above specified in this Section or the Company, pursuant to
resolution of its Board of Directors, may call such meeting. Every such meeting called by and at the instance of the Corporate Trustee shall be held in the Borough of Manhattan, The City of New York, or with the written approval of the Company, at any other place in the United States of America, and written notice thereof, stating the place and time thereof and in general terms the business to be submitted, shall be mailed by the Corporate Trustee not less than thirty (30) days before such meeting (a) to each registered holder of bonds then outstanding hereunder addressed to him at his address appearing in the registry books, (b) to each holder of any such bond payable to bearer who shall have filed with the Corporate Trustee at its principal office an address for notices to be addressed to him, and (c) to the Company addressed to it at Boise, Idaho (or at such other address as may be designated by the Company from time to time), and shall be published by the Corporate Trustee once on at least four different days preceding the meeting, in a daily newspaper, printed in the English language, and of general circulation in the Borough of Manhattan, The City of New York (if publication in such a daily newspaper can be obtained upon reasonable terms or otherwise such substitute publication as the Corporate Trustee shall approve), the first publication to be not less than twenty (20) days prior to the date of such meeting; provided, however, that the mailing of such notice to any bondholders shall in no case be a condition precedent to the validity of any action taken at such meeting. If such meeting is called by or at the instance either of the Company or of the bondholders, it shall be held at such place in the United States of America as may be specified in the notice calling such meeting and notice thereof shall be sufficient for all purposes hereof if given by newspaper publication as aforesaid stating the place and time of the meeting and in general terms the business to be submitted. Any meeting of bondholders shall be valid without notice if the holders of all bonds then outstanding hereunder are present in person or by proxy and if the Company and the Corporate Trustee are present by duly authorized representatives, or if notice is waived in writing before or after the meeting by the Company, the holders of all bonds outstanding hereunder and by the Corporate Trustee, or by such of them as are not present in person or by proxy.
SECTION 109. Officers and nominees of the Corporate Trustee and of the
Company and of the Individual Trustee or their or its nominees may attend such
meeting, but shall not as such be entitled to vote thereat. Attendance by
bondholders may be in person or by proxy. In order that the holder of any bond
payable to bearer and his proxy may attend and vote without producing his bond,
the Corporate Trustee, with respect to any such meeting, may make and from time
to time vary such regulations as it shall think fit for deposit of bonds with
(i) any bank or trust or insurance company, or (ii) any trustee, secretary,
administrator or other proper officer of any pension, welfare, hospitalization,
or similar fund or funds, or (iii) the United States of America, any Territory
thereof, the District of Columbia, any State of the United States, any
municipality in any State of the United States or any public instrumentality of
the United States, or of any State or of any Territory, or (iv) any other person
or corporation satisfactory to the Corporate Trustee, and for the issue to the
persons depositing said bonds of certificates by such depositaries entitling the
holders thereof to be present and vote at any such meeting and to appoint
proxies to represent them and vote for them at any such meeting in the same way
as if the persons so present and voting, either personally or by proxy, were the
actual bearers of the bonds in respect of which such certificate shall have been
issued and any regulations so made shall be binding and effective. A bondholder
in any of the foregoing categories may sign such a certificate in his own
behalf. In lieu of or in addition to providing for such deposit, the Corporate
Trustee may, in its discretion, permit such institutions to issue certificates
stating that bonds were exhibited to them, which certificates shall entitle the
holders thereof to vote at any meeting only
if the bonds with respect to which they are issued are not produced at the meeting by any other person and are not at the time of the meeting registered in the name of any other person. Each such certificate shall state the date on which the bond or bonds in respect of which such certificate shall have been issued were deposited with or exhibited to such institution and the series, maturities and serial numbers of such bonds. A bondholder in any of the foregoing categories may sign such a certificate in his own behalf. In the event that two or more such certificates shall be issued with respect to any bond or bonds, the certificate bearing the latest date or the actual bond shall be recognized and be deemed to supersede any certificate or certificates previously issued with respect to such bond or bonds. If any such meeting shall have been called, under the provisions of Section 108 hereof, by bondholders or by the Company, and the Corporate Trustee shall fail to make regulations as above authorized, then regulations to like effect for such deposit or exhibition of bonds and the issue of certificates by (i) any bank or trust or insurance company, or (ii) any trustee, secretary, administrator or other proper officer of any pension, welfare, hospitalization, or similar fund or funds, or (iii) the United States of America, any Territory thereof, the District of Columbia, any State of the United States, any municipality in any State of the United States or any public instrumentality of the United States, or of any State or of any Territory, shall be similarly binding and effective for all purposes hereof if adopted or approved by the bondholders calling such meeting or by the Board of Directors of the Company, if such meeting shall have been called by the Company, provided that in either such case copies of such regulations shall be filed with the Corporate Trustee. A bondholder in any of the foregoing categories may sign such a certificate in his own behalf.
SECTION 110. Subject to the restrictions specified in Sections 109 and 113
hereof, any registered holder of bonds outstanding hereunder and any holder of a
certificate provided for in Section 109 hereof, shall be entitled in person or
by proxy to attend and vote at such meeting as holder of the bonds registered or
certified in the name of such holder without producing such bonds. All others
seeking to attend or vote at such meeting in person or by proxy must, if
required by any authorized representative of the Corporate Trustee or the
Company or by any other bondholder, produce the bonds claimed to be owned or
represented at such meeting, and everyone seeking to attend or vote shall, if
required as aforesaid, produce such further proof of bond ownership or personal
identity as shall be satisfactory to the authorized representative of the
Corporate Trustee, or if none be present then to the Inspectors of Votes
hereinafter provided for. Proxies shall be witnessed or in the alternative may
(a) have the signature guaranteed by a bank or trust company or a registered
dealer in securities, (b) be acknowledged before a Notary Public or other
officer authorized to take acknowledgments, or (c) have their genuineness
otherwise established to the satisfaction of the Inspectors of Votes. All
proxies and certificates presented at any meeting shall be delivered to said
Inspectors of Votes and filed with the Corporate Trustee.
SECTION 111. Persons nominated by the Corporate Trustee if it is represented at the meeting shall act as temporary Chairman and Secretary, respectively, of the meeting, but if the Corporate Trustee shall not be represented or shall fail to nominate such persons or if any person so nominated shall not be present, the bondholders present in person or by proxy, shall by a majority vote, elect another person or other persons from those present to act as temporary Chairman and/or Secretary. A permanent Chairman and a permanent Secretary of such meeting shall be elected from those present by the bondholders present in person or by proxy, by a majority vote. The Corporate Trustee, if represented at the meeting, shall appoint
two Inspectors of Votes who shall decide as to the right of anyone to vote and shall count all votes cast at such meeting, and who shall make and file with the temporary or permanent Secretary of the meeting their verified written report in duplicate of all such votes so cast at said meeting. If the Corporate Trustee shall not be represented at the meeting or shall fail to nominate such Inspectors of Votes or if either Inspector of Votes fails to attend the meeting, the vacancy shall be filled by appointment by the temporary or permanent Chairman of the meeting.
SECTION 112. The holders of not less than sixty per centum (60%) in principal amount of the bonds Outstanding hereunder when such meeting is held must be present at such meeting in person or by proxy in order to constitute a quorum for the transaction of business, less than a quorum, however, having power to adjourn.
SECTION 113. Any modification or alteration of this Indenture and/or of any indenture supplemental hereto and/or of the rights and obligations of the Company and/or the rights of the holders of bonds and/or coupons issued hereunder in any particular may be made at a meeting of bondholders duly convened and held in accordance with the provisions of this Article, but only by resolution duly adopted by the affirmative vote of the holders of sixty per centum (60%) or more in principal amount of the bonds Outstanding hereunder, and, if the rights of one or more, but less than all, series of bonds then Outstanding are to be affected by action taken at such meeting then also by affirmative vote of the holders of at least sixty per centum (60%) in principal amount of each series of bonds so to be affected and Outstanding hereunder, when such meeting is held, and in every case approved by Resolution of the Board of Directors of the Company as hereinafter specified; provided, however, that no such modification or alteration shall, without the consent of the holder of each bond issued hereunder affected thereby, (1) impair or affect the right of such holder to receive payment of the principal of (and premium, if any) and interest on such bond, on or after the respective due dates expressed in such bond, or to institute suit for the enforcement of any such payment on or after such respective dates, or (2) permit the creation of any lien ranking prior to, or on a parity with, the lien of this Indenture with respect to any of the property mortgaged and pledged hereunder, or (3) permit the deprivation of any nonassenting bondholder of the benefit of a lien upon the property mortgaged and pledged hereunder, for the security of his bonds (subject only to the lien of taxes, assessments or governmental charges not then delinquent and to any mortgage or other liens existing upon such property which are prior hereto at the date of the calling of any such bondholders' meeting), or (4) permit the reduction of the percentage required by the provisions of this Section for the taking of any action under this Section with respect to any bond outstanding hereunder. For all purposes of this Article, the Trustees shall be entitled to rely upon an opinion of counsel with respect to the extent, if any, as to which any action taken at such meeting affects the rights under this Indenture or under any indenture supplemental hereto of any holders of bonds then outstanding hereunder.
Bonds owned and/or held by and/or for account of and/or for the benefit or interest of the Company if challenged by any other bondholder at such meeting and such ownership, benefit or interest is established, shall not be deemed outstanding for the purpose of any vote or of any calculation of outstanding bonds in Article XVI hereof or in this Article provided for.
SECTION 114. A record in duplicate of the proceedings of each meeting of bondholders shall be prepared by the permanent Secretary of the meeting and shall have attached thereto the original reports of the Inspectors of Votes, and affidavits by one or more persons having knowledge of the facts showing a copy of the notice of the meeting, and showing that said notice was mailed and published as provided in Section 108 hereof. Such record shall be signed and verified by the affidavits of the permanent Chairman and the permanent Secretary of the meeting, and one duplicate thereof shall be delivered to the Company and the other to the Corporate Trustee for preservation by the Corporate Trustee. Any record so signed and verified shall be proof of the matters therein stated, and if such record shall also be signed and verified by the affidavit of a duly authorized representative of the Corporate Trustee, such meeting shall be deemed conclusively to have been duly convened and held and such record shall be conclusive, and any resolution or proceeding stated in such record to have been adopted or taken, shall be deemed conclusively to have been duly adopted or taken by such meeting. A true copy of any resolution adopted by such meeting shall be mailed by the Corporate Trustee to each registered holder of bonds outstanding hereunder, addressed to him at his address appearing on the registry books and to each holder of any such bond payable to bearer who shall have filed with the Corporate Trustee an address for notices, addressed to him at such address, and proof of such mailing by the affidavit of some person having knowledge of the fact shall be filed with the Corporate Trustee, but failure to mail copies of such resolution as aforesaid shall not affect the validity thereof. No such resolution shall be binding until and unless such resolution is approved by Resolution of the Board of Directors of the Company of which such Resolution of approval, if any, it shall be the duty of the Company to file a copy certified by the Secretary or an Assistant Secretary of the Company with the Corporate Trustee, but if such Resolution of the Board of Directors of the Company is adopted and a certified copy thereof is filed with the Corporate Trustee, the resolution so adopted by such meeting shall be deemed conclusively to be binding upon the Company, the Trustees and the holders of all bonds and coupons issued hereunder, at the expiration of sixty (60) days after such filing, except in the event of a final decree of a court of competent jurisdiction setting aside such resolution, or annulling the action taken thereby in a legal action or equitable proceeding for such purposes commenced within such sixty (60) day period; provided, however, that no such resolution of the bondholders, or Resolution of the Company, shall in any manner change or modify or be so construed as to change or modify any of the rights, immunities, or obligations of the Trustees or of either of them without their, its or his written assent thereto.
SECTION 115. Bonds authenticated and delivered after the date of any bondholders' meeting may bear a notation in form approved by the Corporate Trustee as to the action taken at meetings of bondholders theretofore held, and upon demand of the holder of any bond outstanding at the date of any such meeting and presentation of his bond for the purpose at the principal office of the Corporate Trustee, the Company shall cause suitable notation to be made on such bond by endorsement or otherwise as to any action taken at any meeting of bondholders theretofore held. If the Company or the Corporate Trustee shall so determine, new bonds so modified as in the opinion of the Corporate Trustee and the Board of Directors of the Company to conform to such bondholders' resolution shall be prepared, authenticated and delivered, and upon demand of the holder of any bond then Outstanding and affected thereby shall be exchanged without cost to such bondholder for bonds then Outstanding hereunder upon surrender of such bonds with all unmatured coupons, if any, appertaining thereto. The Company or the Corporate Trustee may require bonds Outstanding to be presented for notation or exchange
as aforesaid if either shall see fit to do so. Instruments supplemental to this Indenture embodying any modification or alteration of this Indenture or of any indenture supplemental hereto made at any bondholders' meeting and approved by Resolution of the Board of Directors of the Company, as aforesaid, may be executed by the Trustees and the Company and upon demand of the Corporate Trustee, or if so specified in any resolution adopted by any such bondholders' meeting, shall be executed by the Company and the Trustees.
SECTION 116. (A) Anything in this Article XVIII contained to the contrary notwithstanding, the Corporate Trustee shall receive the written consent (in any number of instruments of similar tenor executed by bondholders or by their attorneys appointed in writing) of the holders of sixty per centum (60%) or more in principal amount of bonds Outstanding hereunder, and, if the rights of one or more, but less than all, series of bonds then Outstanding are to be affected by action taken pursuant to such consent, then also by consent of the holders of at least sixty per centum (60%) in principal amount of each series of bonds so to be affected and Outstanding hereunder (at the time the last such needed consent is delivered to the Corporate Trustee) in lieu of the holding of a meeting pursuant to this Article XVIII and in lieu of all action at such a meeting and with the same force and effect as a resolution duly adopted in accordance with the provisions of Section 113 hereof.
(B) Instruments of consent shall be witnessed or in the alternative may (a)
have the signature guaranteed by a bank or trust company or a registered dealer
in securities, (b) be acknowledged before a Notary Public or other officer
authorized to take acknowledgments, or (c) have their genuineness otherwise
established to the satisfaction of the Corporate Trustee.
The amount of bonds payable to bearer, and the series and serial numbers
thereof, held by a person executing an instrument of consent (or whose attorney
has executed an instrument of consent in his behalf), and the date of his
holding the same, may be proved by exhibiting the bonds to and obtaining a
certificate executed by (i) any bank or trust or insurance company, or (ii) any
trustee, secretary, administrator or other proper officer of any pension,
welfare, hospitalization or similar fund or funds, or (iii) the United States of
America, any Territory thereof, the District of Columbia, any State of the
United States, any municipality in any State of the United States or any public
instrumentality of the United States, or of any State or of any Territory, or
(iv) any other person or corporation satisfactory to the Corporate Trustee. A
bondholder in any of the foregoing categories may sign a certificate in his own
behalf.
Each such certificate shall be dated and shall state in effect that as of the date thereof a coupon bond or bonds bearing a specified serial number or numbers was deposited with or exhibited to the signer of such certificate. The holding by the person named in any such certificate of any bond specified therein shall presume to continue unless (1) any certificate bearing a later date issued in respect of the same bond shall be produced, (2) the bond specified in such certificate (or any bond or bonds issued in exchange or substitution for such bond) shall be produced by another holder, or (3) the bond specified in such certificate shall be registered as to principal in the name of another holder or shall have been surrendered in exchange for a fully registered bond registered in the name of another holder. The Corporate Trustee may nevertheless in its discretion require further proof in cases where it deems further proof desirable. The ownership of registered bonds shall be proved by the registry books.
(C) Until such time as the Corporate Trustee shall receive the written consent of the necessary per centum in principal amount of the bonds required by the provisions of subsection (A) above for action contemplated by such consent, any holder of a bond, the serial number of which is shown by the evidence to be included in the bonds the holder of which have consented to such action, may, by filing written notice with the Corporate Trustee at its principal office and upon proof of holding as provided in subsection (B) above, revoke such consent so far as it concerns such bond. Except as aforesaid, any such action taken by the holder of any bond shall be conclusive and binding upon such holder and upon all future holders of such bond (and any bond issued in lieu thereof or exchanged therefor), irrespective of whether or not any notation of such consent is made upon such bond, and in any event any action taken by the holders of the percentage in aggregate principal amount of the bonds specified in subsection (A) above in connection with such action shall be conclusively binding upon the Company, the Trustees and the holders of all bonds."
SECTION 10. The words "and verified" are deleted each time they appear in Sections 3 and 7 of the Indenture.
ARTICLE V
The Trustees.
The Trustees hereby accept the trust hereby declared and provided and agree to perform the same upon the terms and conditions in the Original Indenture, as heretofore supplemented and as supplemented by this Thirty-sixth Supplemental Indenture, and in this Thirty-sixth Supplemental Indenture set forth, and upon the following terms and conditions:
The Trustees shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Thirty-sixth Supplemental Indenture or the due execution hereof by the Company or for or in respect of the recitals contained herein, all of which recitals are made by the Company only.
ARTICLE VI
Miscellaneous Provisions.
All terms contained in the Thirty-sixth Supplemental Indenture shall, for all purposes hereof, have the meanings given to such terms in Article I of the Original Indenture, as amended by Article IV of the Second Supplemental Indenture.
Except as hereby expressly amended and supplemented, the Original Indenture heretofore amended and supplemented is in all respects ratified and confirmed, and all the terms and provisions thereof shall be and remain in full force and effect.
This Thirty-sixth Supplemental Indenture may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original; but such counterparts together constitute but one and the same instrument.
IN WITNESS WHEREOF, Idaho Power Company, party hereto of the first part, caused its corporate name to be hereunto affixed and this instrument to be signed and sealed by its President or a Vice President and its corporate seal to be attested by its Secretary or an Assistant Secretary for and on its behalf, and Bankers Trust Company, one of the parties hereto of the second part, in token of its acceptance of the trust hereby created has caused its corporate name to be hereunto affixed and this instrument to be signed and sealed by a Vice President and its corporate seal to be attested by an Associate and Stanley Burg, one of the parties hereto of the second part, has for all like purposes hereunto set his hand and affixed his seal, each on the date hereinafter acknowledged, as of the day and year first above written.
IDAHO POWER COMPANY
By /s/ Darrel T. Anderson
_______________________________
Darrel T. Anderson
Vice-President - Finance and Treasurer
Attest:
/s/ Robert W. Stahman
_______________________________
Robert W. Stahman
Secretary
|
Executed, sealed and delivered by
IDAHO POWER COMPANY
in the presence of:
/s/ Theresa Kueber _______________________________ /s/ Diane Duman _______________________________ |
BANKERS TRUST COMPANY
By /s/ Carol Ng
_______________________________
Carol Ng
Vice President
Attest:
/s/ Dorothy Robinson
_______________________________
Executed, sealed and delivered by
BANKERS TRUST COMPANY,
in the presence of:
/s/ Aman Khanna
_______________________________
/s/ Annie Jaghats
_______________________________
/s/ Stanley Burg
_______________________________[L.S.]
Stanley Burg
|
Executed, sealed and delivered by
STANLEY BURG,
in the presence of:
/s/ Dusan Stojkovic _______________________________ /s/ Lina Reznikov _______________________________ |
STATE OF IDAHO )
) ss.:
COUNTY OF ADA )
|
On the 26th day of September, in the year 2001, before me personally came DARREL T. ANDERSON, to me known, who being by me duly sworn did depose and say that he resides at 1677 West Spanish Bay Drive, Eagle, Idaho 83616; that he is the Vice President - Finance and Treasurer of Idaho Power Company, one of the corporations described in and which executed the above instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation, and that he signed his name thereto by like order; the said DARREL T. ANDERSON, having personally appeared and known to me to be the Vice President - Finance and Treasurer of said corporation that executed the instrument, acknowledged to me that said corporation executed the same.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal the day and year in this certificate first above written.
/s/ Mary Gray
_______________________________
Mary Gray
Notary Public, State of Idaho
Commission Expires July 17, 2004
|
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
|
On the 21st day of September, in the year 2001, before me personally came Carol Ng, to me known, who being by me duly sworn did depose and say that she resides at 246-23 Van Zandt Avenue, Douglaston, New York 11362; that she is a Vice President of Bankers Trust Company, one of the corporations described in and which executed the above instrument; that she knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation, and that she signed her name thereto by like order; the said Carol Ng, having personally appeared and known to me to be a Vice President of said corporation that executed the instrument, acknowledged to me that said corporation executed the same.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal the day and year in this certificate first above written.
/s/ Tracy A. Salzmann _______________________________ Tracy A. Salzmann Notary Public, State of New York Registration No. 01SA6040727 Qualified in New York County Commission Expires April 24, 2002 |
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
|
On the 24th day of September, in the year 2001, before me, THERESA E. O'HARA, a Notary Public in and for the State of New York in the County of New York, personally appeared and came STANLEY BURG, to me known and known to me to be the person described in and who executed the within and foregoing instrument and whose name is subscribed thereto and acknowledged to me that he executed the same.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal the day and year in this certificate first above written.
/s/ Theresa E. O'Hara _______________________________ Notary Public, State of New York No. 31-4930942 Qualified in New York County Certificate filed in New York County Commission Expires May 31, 2002 |
STATE OF IDAHO )
) ss.:
COUNTY OF ADA )
|
DARREL T. ANDERSON, being first duly sworn, upon oath, deposes and says:
that he is an officer, to wit, the Vice President - Finance and Treasurer of
Idaho Power Company, a corporation, the mortgagor described in the foregoing
indenture or mortgage, and makes this affidavit on behalf of said Idaho Power
Company; that said indenture or mortgage is made in good faith without any
design to hinder, delay or defraud creditors, to secure the indebtedness
mentioned to be thereby secured.
/s/ Darrel T. Anderson
_______________________________
Subscribed and sworn to before me
this 26th day of September, 2001.
|
Mary Gray
/s/ Mary Gray _______________________________ Notary Public, State of Idaho Commission Expires July 17, 2004 |
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
|
Carol Ng, being first duly sworn, upon oath, deposes and says: that she is an officer, to wit, a Vice President of Bankers Trust Company, a corporation, one of the mortgagees and trustees named in the foregoing indenture or mortgage, and makes this affidavit on behalf of said Bankers Trust Company; that said indenture or mortgage is made in good faith without any design to hinder, delay or defraud creditors, to secure the indebtedness mentioned or provided for therein.
/s/ Carol Ng _______________________________ |
Subscribed and sworn to before me
this 21st day of September, 2001.
/s/ Tracy A. Salzmann _______________________________ Tracy A. Salzmann Notary Public, State of New York Registration No. 01SA6040727 Qualified in New York County Commission Expires April 24, 2002 |
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
|
STANLEY BURG, being first duly sworn, upon oath, deposes and says: that he is one of the mortgagees and trustees named in the foregoing indenture or mortgage; that said indenture or mortgage is made in good faith without any design to hinder, delay or defraud creditors, to secure the indebtedness mentioned or provided for therein.
/s/ Stanley Burg _______________________________ Stanley Burg |
Subscribed and sworn to before me
this 24th day of September, 2001.
/s/ Theresa E. O'Hara _______________________________ Notary Public, State of New York No. 31-4930942 Qualified in New York County Certificate filed in New York County Commission Expires May 31, 2002 |