UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
X |
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15 (d) OF |
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THE SECURITIES EXCHANGE ACT OF 1934 |
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For the fiscal year ended December 31, 2009 |
OR
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF |
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THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from ................... to .................................................................
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Exact name of registrants as specified in |
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Commission |
their charters, address of principal executive |
IRS Employer |
File Number |
offices, zip code and telephone number |
Identification Number |
1-14465 |
IDACORP, Inc. |
82-0505802 |
1-3198 |
Idaho Power Company |
82-0130980 |
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1221 W. Idaho Street |
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Boise, ID 83702-5627 |
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(208) 388-2200 |
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State of incorporation: Idaho |
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Websites: www.idacorpinc.com and www.idahopower.com |
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Name of exchange on |
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SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT: |
which registered |
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IDACORP, Inc.: Common Stock, without par value |
New York |
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SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT: |
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Idaho Power Company: Preferred Stock |
Indicate by check mark whether the registrants are
well-known seasoned issuers, as defined in Rule 405 of the Securities Act.
IDACORP, Inc. |
Yes |
( X ) |
No |
( ) |
Idaho Power Company |
Yes |
( ) |
No |
( X ) |
Indicate by check mark if the registrants are not required
to file reports pursuant to Section 13 or Section 15(d) of the Act.
IDACORP, Inc. |
Yes |
( ) |
No |
( X ) |
Idaho Power Company |
Yes |
( ) |
No |
( X ) |
Indicate by check mark whether the registrants (1) have
filed all reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such shorter period
that the registrants were required to file such reports), and (2) have been
subject to such filing requirements for the past 90 days. Yes ( X ) No ( )
Indicate by check mark whether the registrant has submitted
electronically and posted on its corporate Web site, if any, every Interactive
Data File required to be submitted and posted pursuant to Rule 405 of
Regulation S-T during the preceding 12 months (or for such shorter period that
the registrant was required to submit and post such files). Yes ___No ___
1
Indicate by check mark if disclosure of delinquent filers
pursuant to Item 405 of Regulation S-K is not contained herein, and will not be
contained, to the best of registrants knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form 10-K
or any amendment to this Form 10-K. ( X )
Indicate by check mark whether the registrants are large
accelerated filers, accelerated filers, non-accelerated filers, or smaller
reporting companies.
IDACORP, Inc.: |
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Large accelerated filer |
( X ) |
Accelerated filer |
( ) |
Non-accelerated filer |
( ) |
Smaller reporting company |
( ) |
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Idaho Power Company: |
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Large accelerated filer |
( ) |
Accelerated filer |
( ) |
Non-accelerated filer |
( X ) |
Smaller reporting company |
( ) |
Indicate by check mark whether the registrants are shell
companies (as defined in Rule 12b-2 of the Act).
IDACORP, Inc. |
Yes |
( ) |
No |
( X ) |
Idaho Power Company |
Yes |
( ) |
No |
( X ) |
Aggregate market value of voting and non-voting common stock
held by nonaffiliates (June 30, 2009):
IDACORP, Inc.: |
$1,224,885,216 |
Idaho Power Company: |
None |
Number of shares of common stock outstanding at January 31,
2010:
IDACORP, Inc.: |
47,951,829 |
Idaho Power Company: |
39,150,812 all held by IDACORP, Inc. |
Documents Incorporated by Reference: |
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Part III, Items 10 - 14 |
Portions of IDACORP, Inc.s definitive proxy statement to be filed pursuant to Regulation 14A for the Annual Meeting of Shareholders to be held on May 20, 2010. |
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This combined Form 10-K represents separate filings by
IDACORP, Inc. and Idaho Power Company. Information contained herein relating
to an individual registrant is filed by that registrant on its own behalf.
Idaho Power Company makes no representation as to the information relating to
IDACORP, Inc.s other operations.
Idaho Power Company meets the conditions set forth in
General Instruction (I)(1)(a) and (b) of Form 10-K and is therefore filing this
Form with the reduced disclosure format.
2
COMMONLY USED TERMS |
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AFUDC |
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Allowance for Funds Used During Construction |
APCU |
- |
Annual Power Cost Update |
Cal ISO |
- |
California Independent System Operator |
CalPX |
- |
California Power Exchange |
CAMP |
- |
Comprehensive Aquifer Management Plan |
CO 2 |
- |
Carbon Dioxide |
cfs |
- |
Cubic feet per second |
EIS |
- |
Environmental impact statement |
EPS |
- |
Earnings per share |
ESA |
- |
Endangered Species Act |
ESPA |
- |
Eastern Snake Plain Aquifer |
FASB |
- |
Financial Accounting Standards Board |
FCA |
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Fixed Cost Adjustment mechanism |
FERC |
- |
Federal Energy Regulatory Commission |
FIN |
- |
Financial Accounting Standards Board Interpretation |
Fitch |
- |
Fitch, Inc. |
FPA |
- |
Federal Power Act |
GAAP |
- |
Generally Accepted Accounting Principles |
HCC |
- |
Hells Canyon Complex |
Ida-West |
- |
Ida-West Energy, a subsidiary of IDACORP, Inc. |
IDWR |
- |
Idaho Department of Water Resources |
IE |
- |
IDACORP Energy, a subsidiary of IDACORP, Inc. |
IERCo |
- |
Idaho Energy Resources Co., a subsidiary of Idaho Power Company |
IFS |
- |
IDACORP Financial Services, a subsidiary of IDACORP, Inc. |
IPUC |
- |
Idaho Public Utilities Commission |
IRP |
- |
Integrated Resource Plan |
IWRB |
- |
Idaho Water Resource Board |
kW |
- |
Kilowatt |
LGAR |
- |
Load Growth Adjustment Rate |
maf |
- |
Million acre feet |
MD&A |
- |
Managements Discussion and Analysis of Financial Condition and Results of Operations |
Moodys |
- |
Moodys Investors Service |
MW |
- |
Megawatt |
MWh |
- |
Megawatt-hour |
NOx |
- |
Nitrogen Oxide |
NWRFC |
- |
National Weather Service Northwest River Forecast Center |
O&M |
- |
Operations and Maintenance |
OATT |
- |
Open Access Transmission Tariff |
OPUC |
- |
Oregon Public Utility Commission |
PCA |
- |
Power Cost Adjustment |
PCAM |
- |
Power Cost Adjustment Mechanism |
PURPA |
- |
Public Utility Regulatory Policies Act of 1978 |
RH BART |
- |
Regional Haze - Best Available Retrofit Technology |
RFP |
- |
Request for Proposal |
S&P |
- |
Standard & Poors Ratings Services |
SFAS |
- |
Statement of Financial Accounting Standards |
SO 2 |
- |
Sulfur Dioxide |
SRBA |
- |
Snake River Basin Adjudication |
Valmy |
- |
North Valmy Steam Electric Generating Plant |
VIEs |
- |
Variable Interest Entities |
WECC |
- |
Western Electricity Coordinating Council |
3
TABLE OF CONTENTS |
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Page |
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Part I |
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Business |
5-14 |
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Risk Factors |
15-19 |
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Unresolved Staff Comments |
19 |
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Properties |
20-21 |
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Legal Proceedings |
21 |
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Submission of Matters to a Vote of Security Holders |
21 |
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21-22 |
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Part II |
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Market for Registrants Common Equity, Related Stockholder |
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Matters and Issuer Purchases of Equity Securities |
23-24 |
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Selected Financial Data |
25 |
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Managements Discussion and Analysis of Financial Condition and |
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Results of Operations |
25-61 |
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Quantitative and Qualitative Disclosures about Market Risk |
61-62 |
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Financial Statements and Supplementary Data |
63 |
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Changes in and Disagreements with Accountants on Accounting and |
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Financial Disclosure |
121 |
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Controls and Procedures |
121-126 |
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Other Information |
126 |
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Part III |
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Directors, Executive Officers and Corporate Governance* |
126 |
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Executive Compensation* |
126 |
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Security Ownership of Certain Beneficial Owners and Management and Related |
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Stockholder Matters* |
127 |
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Certain Relationships and Related Transactions, and Director Independence* |
127 |
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Principal Accountant Fees and Services* |
127-129 |
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Part IV |
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Exhibits and Financial Statement Schedules |
129-141 |
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142-143 |
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*Except as indicated in Item 12, IDACORP, Inc. information is incorporated by reference to IDACORP, |
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Inc.s definitive proxy statement for the 2010 Annual Meeting of Shareholders. |
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4
SAFE HARBOR STATEMENT
This Form 10-K contains forward-looking statements
intended to qualify for the safe harbor from liability established by the
Private Securities Litigation Reform Act of 1995. Forward-looking statements
should be read with the cautionary statements and important factors included in
this Form 10-K at Part II, Item 7- Managements Discussion and Analysis of
Financial Condition and Results of Operations - FORWARD-LOOKING INFORMATION.
Forward-looking statements are all statements other than statements of
historical fact, including without limitation those that are identified by the
use of the words anticipates, believes, estimates, expects, intends,
plans, predicts, projects, may result, may continue, or similar
expressions.
PART I - IDACORP, INC. AND IDAHO POWER COMPANY
OVERVIEW
IDACORP, Inc. (IDACORP) is a holding company formed in 1998
whose principal operating subsidiary is Idaho Power Company (Idaho Power).
IDACORP is subject to the provisions of the Public Utility Holding Company Act
of 2005, which provides certain access to books and records to the Federal
Energy Regulatory Commission (FERC) and state utility regulatory commissions
and imposes certain record retention and reporting requirements on IDACORP.
Idaho Power was incorporated under the laws of the state of
Idaho in 1989 as successor to a Maine corporation organized in 1915. Idaho
Power is an electric utility engaged in the generation, transmission,
distribution, sale and purchase of electric energy and is regulated by the FERC
and the state regulatory commissions of Idaho and Oregon. Idaho Power is the
parent of Idaho Energy Resources Co. (IERCo), a joint venturer in Bridger Coal
Company (Bridger Coal), which supplies coal to the Jim Bridger generating plant
owned in part by Idaho Power.
IDACORPs other subsidiaries include:
IDACORP Financial Services, Inc. (IFS), an investor in affordable housing and other real estate investments;
Ida-West Energy Company (Ida-West), an operator of small hydroelectric generation projects that satisfy the requirements of the Public Utility Regulatory Policies Act of 1978 (PURPA); and
IDACORP Energy (IE), a marketer of energy commodities, which
wound down operations in 2003.
IDACORPs business strategy emphasizes Idaho Power as
IDACORPs core business. Idaho Power is IDACORPs only reportable business
segment, contributing 98.6 percent of IDACORPs income from continuing
operations in 2009. Segment data is presented in Note 17 to the consolidated
financial statements. At December 31, 2009, IDACORP had 1,994 full-time
employees, 1,979 of which were employed by Idaho Power.
Idaho Power detailed a three-part strategy of responsible
planning, responsible development and protection of resources, and responsible
energy use to ensure adequate energy supplies. Idaho Power continues to
evaluate and refine its business strategy to ensure coordination among and
integration of all functional areas of the company. Idaho Powers business
strategy balances the interests of owners, customers and employees while
maintaining the companys financial stability and flexibility. The strategy includes:
RESPONSIBLE PLANNING: Idaho Powers planning process is
intended to ensure adequate generation and transmission resources to meet
population growth and increasing electricity demand. This planning process now
integrates Idaho Powers regulatory strategy and financial planning, including
the consideration of regional economic development in the growing communities
we serve.
RESPONSIBLE DEVELOPMENT AND PROTECTION OF RESOURCES: Idaho
Powers business strategy has included the development and protection of
generation, transmission, distribution and associated infrastructure, and the
natural resources Idaho Power depends upon. The strategy now includes specific
consideration of workforce planning, development and retention related to these
strategic elements.
5
RESPONSIBLE ENERGY USE: Idaho Powers business strategy has
included energy efficiency and demand response programs and preparation for
potential carbon and renewable portfolio standard legislation. The strategy
now includes targeted reductions relating to carbon emission intensity and public
disclosure of these reductions.
IDACORP and Idaho Power make available free of charge their
Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on
Form 8-K and all amendments to these reports filed or furnished pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 as soon as
reasonably practicable after the reports are electronically filed with or
furnished to the Securities and Exchange Commission. IDACORPs website is www.idacorpinc.com
and can also be accessed through a link to the IDACORP website on the Idaho
Power website at www.idahopower.com.
UTILITY OPERATIONS
Idaho Powers service territory covers approximately 24,000
square miles in southern Idaho and eastern Oregon, with an estimated population
of one million. Idaho Power holds franchises in 71 cities in Idaho and nine
cities in Oregon and holds certificates from the respective public utility
regulatory authorities to serve all or a portion of 25 counties in Idaho and
three counties in Oregon. As of December 31, 2009, Idaho Power supplied
electric energy to approximately 490,000 general business customers. Idaho
Powers principal commercial and industrial customers are involved in food
processing, electronics and general manufacturing, forest products, beet sugar
refining and winter recreation.
Weather, customer demand and economic conditions impact
electricity sales. Extreme temperatures increase sales to customers who use
electricity for cooling and heating, and moderate temperatures decrease sales.
Increased precipitation levels during the agricultural growing season reduce
electricity sales to customers who use electricity to operate irrigation pumps.
Rates and Revenues
Retail
Electric utilities have historically been recognized as
natural monopolies and have operated in a highly regulated environment in which
they have an obligation to provide electric service to their customers in
return for an exclusive franchise within their service territory with an
opportunity to earn a regulated rate of return. Idaho Power is under the
retail jurisdiction (as to rates, service, accounting and other general matters
of utility operation) of the Idaho Public Utilities Commission (IPUC) and the
Oregon Public Utility Commission (OPUC) and as a regulated electric utility,
Idaho Power is generally not subject to retail competition. The IPUC and the
OPUC determine the rates that Idaho Power charges to its general business
customers. Idaho Power is also under the retail regulatory jurisdiction of the
IPUC, the OPUC and the Public Service Commission of Wyoming as to the issuance
of debt and equity securities.
Approximately 95 percent of Idaho Powers general business
revenue comes from customers located in Idaho. Idaho Power uses general rate
cases, power cost adjustment mechanisms, a fixed cost adjustment (FCA)
mechanism, and subject-specific filings to recover its costs of providing
service and to earn a return on investment. Significant rate cases and
proceedings are discussed in more detail in Note 3 to the consolidated
financial statements.
Special Customer Electric Service Agreements
Micron:
The IPUC authorized Idaho Power to amend
temporarily an electric service agreement with one of its largest customers,
Micron Technology, Inc. (Micron) for the period January 2009 through June 2009,
to provide Micron flexibility in restructuring its operations. Subsequently,
the IPUC approved an extension of the temporary amendment through December 31,
2009. The amendments did not have a significant impact on Idaho Powers 2009
earnings and are not expected to have a significant impact on 2010 earnings.
The IPUC approved a replacement agreement between Idaho Power and Micron on
February 12, 2010, providing operating and planning benefits to Idaho Power
while allowing Micron to reduce its contract demand from 85 MW to 60 MW.
6
Hoku:
In September 2008, Idaho Power entered into an
electric service agreement with a new customer, Hoku Materials, Inc. (Hoku), to
provide electric service to Hokus polysilicon production facility under
construction in Pocatello, Idaho. The IPUC approved the electric service
agreement in March 2009. The initial term of the agreement was four years
beginning June 1, 2009, (this date was subsequently changed to December 1,
2009) with a maximum demand obligation during the initial term of 82 MW.
Hoku was still not taking service on December 1, 2009, and
Idaho Power agreed to temporarily waive the minimum billed energy charge in the
Hoku special contract, effective December 1, 2009. The temporary waiver would
remain in effect until the month the contract load factor first exceeds 70
percent of the total contract demand, or March 31, 2011, whichever comes
first. The IPUC has approved this waiver. While the multi-month delay in the
starting date for Hokus required energy purchases reduces Idaho Powers revenues,
the revenue reductions are largely offset by corresponding reductions in Idaho
Powers costs of providing service to Hoku.
Wholesale
As a public utility under Part II of the Federal Power Act
(FPA), Idaho Power has authority to charge market-based rates for wholesale
energy sales under its FERC tariff and to provide transmission services under
its Open Access Transmission Tariff (OATT). Idaho Powers OATT is revised each
year based on financial and operational data Idaho Power files annually with the
FERC in its Form 1. The Energy Policy Act of 2005 (Energy Act) granted the
FERC increased statutory authority to implement mandatory transmission and
reliability standards, as well as enhanced oversight of power and transmission
markets, including protection against market manipulation. Significant rate
cases and proceedings are discussed in more detail in Note 3 to the
consolidated financial statements.
Idaho Power has one firm wholesale power sales
contract with Raft River Electric Cooperative for up to 15 MW. This contract
expires in September 2010. However, Raft River Electric Cooperative has
provided notice that is intends to renew the contract, as allowed in the
original agreement, through September 2011.
Idaho Power has one wholesale reserve sales contract, with
United Materials of Great Falls, Inc. The agreement requires Idaho Power to
carry reserves in association with an energy sales agreement between Idaho
Power and United Materials from the Horseshoe Bend Wind Farm located in
Montana. The term of the agreement runs seasonally through May 2013.
Energy sales
The following table presents Idaho Powers revenues and
energy use by customer type for the last three years. Idaho Powers operations
are discussed further in Part II, Item 7 - MD&A - RESULTS OF OPERATIONS -
Utility Operations:
7
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Years Ended December 31, |
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2009 |
2008 |
2007 |
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Revenues (thousands of dollars) |
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Residential |
$ |
409,479 |
$ |
353,262 |
$ |
308,208 |
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Commercial |
|
232,816 |
|
203,035 |
|
170,001 |
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Industrial |
|
141,530 |
|
122,302 |
|
101,409 |
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Irrigation |
|
109,655 |
|
105,712 |
|
88,685 |
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Deferred revenue related to Hells Canyon |
|
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relicensing AFUDC |
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(9,715) |
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- |
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- |
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Total general business |
|
883,765 |
|
784,311 |
|
668,303 |
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Off-system sales |
|
94,373 |
|
121,429 |
|
154,948 |
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Other |
|
67,858 |
|
50,336 |
|
52,150 |
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Total |
$ |
1,045,996 |
$ |
956,076 |
$ |
875,401 |
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Energy use (thousands of MWh) |
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Residential |
|
5,300 |
|
5,297 |
|
5,227 |
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Commercial |
|
3,858 |
|
3,970 |
|
3,937 |
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Industrial |
|
3,140 |
|
3,355 |
|
3,454 |
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Irrigation |
|
1,650 |
|
1,922 |
|
1,924 |
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Total general business |
|
13,948 |
|
14,544 |
|
14,542 |
|
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Off-system sales |
|
2,836 |
|
2,048 |
|
2,744 |
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Total |
|
16,784 |
|
16,592 |
|
17,286 |
|
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Power Supply
Idaho Power primarily relies on company-owned hydroelectric,
coal and gas-fired generation facilities and long-term power purchase
agreements (PPAs) to supply the energy needed to serve customers. Idaho
Powers annual hydroelectric generation varies depending on water conditions in
the Snake River and market purchases and sales are used to balance supply and
demand throughout the year. Idaho Powers low-cost hydroelectric plants are
typically the companys largest source of electricity. Idaho Powers
generating plants and their capacities are listed in Item 2 - Properties.
Weather, customer growth and economic conditions impact
power supply costs. Drought conditions and customer growth cause a greater
reliance on more expensive purchased power to meet load requirements.
Conversely, favorable hydroelectric generation conditions increase production
at Idaho Powers hydroelectric generating facilities and reduce the need for
purchased power. Economic conditions can affect market price of natural gas
and coal, which may impact fuel expense and market prices for purchased power.
Idaho Powers system is dual peaking, with the larger peak
demand occurring in the summer. The all-time system peak demand is 3,214 MW,
set on June 30, 2008, and the all-time winter peak demand is 2,527 MW set on
December 10, 2009. During these and other similar heavy load periods Idaho
Powers system is fully committed to serve loads and meet required operating
reserves.
The following table presents Idaho
Powers total power supply for the last three years:
|
MWh |
Percent of total generation |
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|
2009 |
2008 |
2007 |
2009 |
2008 |
2007 |
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(thousands of MWhs) |
|
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Hydroelectric plants |
8,096 |
6,908 |
6,181 |
53% |
48% |
46% |
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Coal-fired plants |
6,941 |
7,279 |
7,144 |
45% |
50% |
52% |
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Natural gas fired plants |
242 |
217 |
223 |
2% |
2% |
2% |
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|
Total system generation |
15,279 |
14,404 |
13,548 |
100% |
100% |
100% |
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Purchased power - cogeneration and |
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|
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small power production (CSPP) |
970 |
757 |
777 |
|
|
|
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Purchased power - Other |
1,942 |
2,960 |
4,419 |
|
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|
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Total purchased power |
2,912 |
3,717 |
5,196 |
|
|
|
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Total power supply |
18,191 |
18,121 |
18,744 |
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Hydroelectric Generation
Idaho Power operates 17
hydroelectric projects located on the Snake River and its tributaries.
Together, these hydroelectric facilities provide a total nameplate capacity of
1,709 MW and annual generation equal to approximately 8.6 million MWh under
median water conditions.
Because of its reliance on
hydroelectric generation, Idaho Powers generation operations can be
significantly affected by water conditions. The availability of hydroelectric
power depends on the amount of snow pack in the mountains upstream of Idaho
Powers hydroelectric facilities, reservoir storage, springtime snow pack
run-off, river base flows, spring flows, rainfall, amount and timing of water
leases, and other weather and stream flow management considerations. During
low water years, when stream flows into Idaho Powers hydroelectric projects
are reduced, Idaho Powers hydroelectric generation is reduced. This results
in less generation from Idaho Powers resource portfolio (hydroelectric,
coal-fired and gas-fired) available for off-system sales and, generally, an increased
use of purchased power to meet load requirements. Both of these situations - a
reduction in off-system sales and an increased use of more expensive purchased
power - result in increased power supply costs.
8
Stream flow conditions improved in 2009
resulting in an increase of 1.2 million MWh generated from Idaho Powers
hydroelectric facilities as compared to 2008. The observed stream flow data
released in August 2009 by the U.S. Army Corps of Engineers, indicated that
Brownlee reservoir inflow for April through July 2009 was 5.6 million acre-feet
(maf), or 89 percent of the National Weather Service Northwest River Forecast
Center (NWRFC) average, compared to 4.4 maf, or 70 percent of the NWRFC
average, in 2008.
Storage in selected federal reservoirs
upstream of Brownlee as of February 21, 2010, was 118 percent of average. The
stream flow forecast released on February 19, 2010, by the NWRFC predicts that
Brownlee reservoir inflow for April through July 2010 will be 2.9 maf, or 46
percent of the NWRFC average.
Power generation at the Idaho Power hydroelectric power
plants on the Snake River also depends on the state water rights held by Idaho
Power and the long-term sustainability of the Snake River, tributary spring
flows and the Eastern Snake Plain Aquifer that is connected to the Snake
River. Idaho Power continues to participate in water management issues in
Idaho that may affect those water rights and resources with the goal to
preserve, to the fullest extent possible, the long-term availability of water
for use at Idaho Powers hydroelectric projects on the Snake River. For
further information see Part II, Item 7 MD&A LEGAL MATTERS Snake
River Basin Water Rights.
Idaho Power is subject to the provisions of the Federal
Power Act (FPA) as a public utility and as a licensee as therein defined
and is subject to regulation by the FERC. As a licensee under Part I of the
FPA, Idaho Power and its licensed hydroelectric projects are subject to
conditions set forth in the FPA and related FERC regulations. These conditions
and regulations include provisions relating to condemnation of a project upon
payment of just compensation, amortization of project investment from excess
project earnings, possible takeover of a project after expiration of its
license upon payment of net investment, severance damages and other matters.
Idaho Power obtains licenses for its hydroelectric projects
from the FERC, similar to other utilities that operate nonfederal hydroelectric
projects on qualified waterways. These licenses last for 30 to 50 years
depending on the size, complexity, and cost of the project. Idaho Power is
actively pursuing the relicensing of the Hells Canyon Complex and Swan Falls
projects. For further information on relicensing activities see Part II, Item
7 MD&A RELICENSING OF HYDROELECTRIC PROJECTS.
The state of Oregon has a Hydroelectric Act providing for
licensing of hydroelectric projects in that state. With respect to project
property located in Oregon, Idaho Powers Brownlee, Oxbow and Hells Canyon
facilities are subject to the Oregon Hydroelectric Act. Idaho Power has
obtained Oregon licenses for these facilities and these licenses are not in
conflict with the FPA or Idaho Powers FERC licenses.
Coal and Natural-Gas Combustion Generation
Idaho Power co-owns three coal-fired power plants and owns two natural gas
combustion turbine power plants. The coal-fired plants are: Jim Bridger
located in Wyoming; Boardman located in Oregon; and Valmy located in Nevada.
The natural gas-fired plants, Danskin and Bennett Mountain, are located in
Idaho.
Fuel supply-coal
Idaho Power, through its subsidiary IERCo, owns a one-third
interest in Bridger Coal, which owns the Jim Bridger mine that supplies coal to
the Jim Bridger generating plant (one-third owned by Idaho Power). The mine,
located near the Jim Bridger plant, operates under a long-term sales agreement
that provides for delivery of coal over a 51-year period ending in 2024 from
surface, high-wall, and underground sources. The Jim Bridger mine has
sufficient reserves to provide coal deliveries for the term of the sales
agreement. Idaho Power also has a coal supply contract providing for annual
deliveries of coal through 2014 from the Black Butte Coal Companys Black Butte
and Leucite Hills mines located near the Jim Bridger plant. This contract
supplements the Bridger Coal deliveries and provides another coal supply to
operate the Jim Bridger plant. The Jim Bridger plants rail load-in facility
and unit coal train allow the plant to take advantage of potentially lower-cost
coal from other mines for tonnage requirements above established contract
minimums.
NV Energy, as operator of the Valmy generating plant, has an
agreement with Arch Coal Sales Company, Inc. to supply coal to the plant
through 2011. As a 50 percent owner of the plant, Idaho Power is obligated to
purchase one-half of the coal, Idaho Powers portion ranging from 515,000 tons
to 762,500 tons annually. NV Energy also has a coal supply contract with Black
Butte Coal Companys Black Butte Mine for deliveries through 2015. Idaho Power
is obligated to purchase one-half of the coal purchased under this agreement
ranging from as low as 44,000 to as many as 500,000 tons annually.
9
The Boardman generating plant receives coal from the Powder
River Basin through annual contracts. Portland General Electric, as operator
of the Boardman plant, has two agreements with Foundation Coal West, Inc. to
supply all of Boardmans coal requirements in 2010 and additional deliveries through
2011. As a ten percent owner of the plant, Idaho Power is obligated to
purchase ten percent of the coal purchased under these agreements, which
cumulatively ranges from 175,000 to 225,000 tons annually.
Fuel supply-natural gas
Idaho Power owns and operates the Danskin and Bennett
Mountain combustion turbines, which are supplied gas through Northwest Pipeline
GPs (Northwest) pipeline. Gas is purchased as needs are identified for summer
peaks or to meet system requirements. Natural gas is transported under two
long-term agreements with Northwest. The first agreement, which runs into
2022, with annual extensions at Idaho Powers sole discretion, is for 24,523
million British thermal units (MMBtu) per day. Idaho Power also has the
ability to flow a total of 78,092 MMBtu on an alternate firm basis without
incurring a reservation charge on the additional amount. The second agreement,
beginning in 2012 and running through 2027, provides Idaho Power with
transportation capacity for 22,000 MMBtu per day. In addition to the two
long-term gas transportation agreements, Idaho Power has entered into a
long-term storage agreement with Northwest for 131,453 MMBtu of total storage
capacity at the Jackson Prairie Storage Project located in Lewis County, Washington.
As the project is developed, storage capacity will be phased into service and
allocated to Idaho Power on a monthly basis. Idaho Powers current storage
allotment is approximately 53 percent of its total, and its full allotment is
expected to be reached by January 2011. The firm storage contract expires in
2043, with bilateral termination rights at the end of the contract. Storage
gas will be purchased and stored with the intent of fulfilling needs as
identified for summer peaks or to meet system requirements.
Idaho Power plans to construct and operate the Langley Gulch
combined-cycle natural gas power plant. Construction is scheduled to begin
during the summer of 2010 with an on-line date targeted for the summer of
2012. Gas for Langley Gulch will be supplied through Northwests pipeline.
Procurement of gas will be managed to meet system requirements and fueling
strategies.
Purchased Power Agreements
Idaho Power has four firm wholesale purchased power
contracts. The first contract is with PPL Energy Plus, LLC, for 83 MW per hour
during heavy load hours, to address increased demand during June, July and
August. The contract term is through August 2011. The second contract is with
Raft River Energy I, LLC for 13 MW (nameplate generation) from its Raft River
Geothermal Power Plant Unit #1 located in southern Idaho. The contract term is
through April 2033. The third contract is with Telocaset Wind Power Partners,
LLC, for 101 MW (nameplate generation) from its Elkhorn Valley wind project
located in eastern Oregon. The contract term is through 2027. A fourth
contract is currently before the IPUC for authorization. This contract is with
USG Oregon LLC for 22 MW (estimated average annual output) from its
to-be-constructed Neal Hot Springs #1 geothermal power plant located near Vale,
Oregon. The contract term is 25 years with an option to extend. Commercial
operation is expected in late 2012.
Idaho Power has an exchange agreement with Clatskanie
Peoples Utility. The agreement is for the exchange of up to 18 MWs of energy
from the Arrowrock Project in southern Idaho for energy from Idaho Powers
system or power purchased at the Mid-Columbia trading hub. The initial term of
the agreement is January 1, 2010, through December 31, 2015. Idaho Power has
the right to renew the agreement for two additional five-year terms. Idaho
Power also has an exchange agreement with NV Energy that is pending approval
from the Public Utilities Commission of Nevada. The term of the agreement is
one business day following the Public Utilities Commission of Nevadas
approval, and continuing for two consecutive years, and provides for the
exchange of up to 45 MW of energy hourly.
CSPP Purchases
Pursuant to the requirements of Section 210 of PURPA, the
state regulatory commissions have each issued orders and rules regulating Idaho
Powers purchase of power from cogeneration and small power production (CSPP)
facilities. A key component of the PURPA contracts is the energy price
contained within the agreements. The PURPA regulations specify that a utility
must pay energy prices based on the utilitys avoided costs. The Published
Avoided Cost is a price established by the IPUC and OPUC to estimate Idaho
Powers cost of developing additional generation resources. The IPUC and OPUC
have established specific rules and regulations to calculate the published
avoided cost that Idaho Power is required to include in the PURPA contracts.
10
Idaho Power has contracts for the purchase of energy from a
number of private developers. Under these contracts:
Idaho Power is required to purchase all of the output from the facilities located inside its service territory.
Idaho Power is required to purchase the output of projects located outside its service territory if it has the ability to receive at the facilitys requested point of delivery on the Idaho Power system.
The IPUC jurisdictional portion of the costs associated with CSPP contracts is fully recovered through base rates and the PCA; the OPUC jurisdictional portion is recovered through general rate case filings and the Oregon power cost mechanism.
For IPUC jurisdictional contracts, projects that generate up to ten average MW of energy monthly are eligible for IPUC Published Avoided Costs for up to a 20-year contract term.
For OPUC jurisdictional contracts, projects with a nameplate rating of up to ten MW of capacity are eligible for OPUC Published Avoided Costs for up to a 20-year contract term.
If a PURPA project does not qualify for Published Avoided Costs,
Idaho Power is required to negotiate the terms, prices and conditions with the
developer. These negotiations reflect the characteristics of the individual
projects (i.e., operational flexibility, location and size) and the benefits to
the Idaho Power system and must be consistent with other similar energy
alternatives.
On March 12, 2009, the IPUC increased the Published Avoided
Cost rates. For example, the rate for a 20-year levelized 2009 contract
increased from $69.54/MWh to $88.92/MWh. This increase continues a favorable
climate for PURPA project development and may lead to additional PURPA
agreements. Those agreements may result in Idaho Power acquiring energy at
above wholesale market prices and at times when a surplus already exists as
well as requiring additional operational integration costs, thus increasing
costs to its customers. As noted above, substantially all CSPP costs are
recovered through base rates and Idaho Powers power supply cost mechanisms.
As of December 31, 2009, Idaho Power had signed agreements to
purchase energy from 96 CSPP facilities with contracts originally ranging from
one to 35 years. Eighty of these facilities, with a combined nameplate
capacity of 298 MW, were on-line at the end of 2009; the other 16 facilities
under contract, with a combined nameplate capacity of 266 MW, are projected to
come on-line during 2010 and 2011. The majority of the new facilities will be
wind resources which will generate on an intermittent basis. During 2009,
Idaho Power purchased 970,419 megawatt-hours (MWh) from CSPP facilities at a
cost of $59 million, resulting in a blended price of 6.1 cents per kilowatt
hour.
Wholesale Competition
The 1992 National Energy Policy Act and the FERCs
rulemaking activities have established the regulatory framework to open the
wholesale energy market to competition. Open-access transmission for wholesale
customers provides energy suppliers with opportunities to sell and deliver
electricity at market-based prices. Idaho Power actively monitors and
participates, as appropriate, in energy industry developments, to maintain and
enhance its ability to effectively participate in wholesale energy markets in a
manner consistent with its business goals.
Wholesale Energy Market Activities
Idaho Power participates in the wholesale energy market by
buying power to help meet load demands and selling power that is in excess of
load demands. Idaho Powers market activities are guided by a risk management
policy and frequently updated operating plans and influenced by customer loads,
market prices, and cost and availability of generating resources. Some of
Idaho Powers hydroelectric generation facilities are operated to optimize the
water that is available by choosing when to run generation units and when to
store water in reservoirs. These decisions affect the timing and volumes of
market purchases and market sales. Even in below normal water years, there are
opportunities to vary water usage to maximize generation unit efficiency,
capture marketplace economic benefits and meet load demand. Wholesale energy
market prices and compliance factors, such as allowable river stage elevation
changes and flood control requirements, influence these dispatch decisions.
11
Transmission Services
Idaho Powers generating facilities are interconnected through
its integrated transmission system and are operated on a coordinated basis to
achieve maximum load-carrying capability and reliability. Idaho Powers
transmission system is directly interconnected with the transmission systems of
the Bonneville Power Administration (BPA), Avista Corporation, PacifiCorp,
NorthWestern Energy and NV Energy. Such interconnections, coupled with
transmission line capacity made available under agreements with some of the
above entities, permit the interchange, purchase, and sale of power among all
major electric systems in the west interconnecting with the winter-peaking
northern and summer-peaking southern regions of the western power system.
Idaho Power provides wholesale transmission service and provides firm and non-firm
wheeling services for eligible transmission customers. Idaho Power is a member
of the Western Electricity Coordinating Council, the Western Systems Power
Pool, the Northwest Power Pool, the Northern Tier Transmission Group, and the
North American Energy Standards Board. These groups have been formed to more
efficiently coordinate transmission reliability and planning throughout the
western grid.
Resource Planning
Idaho Power filed its 2009 Integrated Resource Plan (IRP)
with the IPUC and OPUC in December 2009. Idaho Power updates the IRP every two
years. The IRP forecasts Idaho Powers load and resource situation for the
next 20 years, analyzes potential supply-side and demand-side options and
identifies near-term and long-term actions.
The four primary goals of the IRP are to:
(1) identify sufficient resources to reliably serve the growing demand for energy within Idaho Powers service area throughout the 20-year planning period;
(2) ensure the selected resource portfolio balances cost, risk and environmental concerns;
(3) give equal and balanced treatment to both supply-side resources and demand-side measures; and
(4) involve the
public in the planning process in a meaningful way.
The 2009 IRP analyzed supply-side resources, demand-side
management programs, and transmission options taking into account many factors
including the estimated costs of complying with potential carbon legislation as
part of determining the preferred resource portfolio. The preferred portfolio
positions Idaho Power for compliance with anticipated carbon regulations and a
federal Renewable Electricity Standard (RES). Due to the uncertainty regarding
future carbon regulations, no new conventional coal resources were selected in
the preferred portfolio.
During the development of the 2009 IRP, Idaho Power
conducted regular public meetings with the IRP Advisory Council (IRPAC). The
IRPAC members include the IPUC, the OPUC, political, environmental, and
customer representatives and representatives of other public interest groups.
IRPAC meetings also serve as the primary forum for involving the public in the
planning process.
During the time between resource plan filings, the public
and regulatory oversight of the activities identified in the IRP allows for
discussion and adjustment of the IRP as warranted. Idaho Power makes periodic
adjustments and corrections to the resource plan to reflect changes in
technology, economic conditions, anticipated resource development and
regulatory requirements.
Supply-side Resource s
The foundation of Idaho Powers
energy resources is its company-owned generation facilities including 17
hydroelectric plants, two gas-fired plants and co-ownership in three coal-fired
plants (discussed in ITEM 2 PROPERTIES). To balance out its resource needs,
Idaho Power also utilizes long-term PPAs to supply the energy needed to serve
customers.
Idaho Power also has projects
identified for construction that including the 300-MW Langley Gulch
combined-cycle power plant, and a 49 MW expansion of the Shoshone Falls
hydroelectric facility. Idaho Power is also planning the Boardman to Hemingway
and the Gateway West transmission lines and constructing the Hemingway
substation to improve reliability, relieve congestion and provide system
flexibility (for more information see ITEM 7 MD&A LIQUIDITY AND CAPITAL
RESOURCES Capital Requirements Major Projects). The IRP also included
discussion related to the following resources:
Geothermal RFPs
Although the results of previously conducted geothermal request
for proposal (RFP) processes have been disappointing, Idaho Power continues to
work with project developers capable of delivering energy to the companys
service area. Idaho Power has included two 20-MW increments of geothermal
energy in the 2009 IRP preferred portfolio, one in 2012 and one in 2016.
12
Wind RFP
The 2009 IRP preferred portfolio includes 150 MW of wind
generation coming on-line in 2012. In May 2009, Idaho Power issued an RFP for
up to 150 MW of wind generation to come on-line no later than the end of 2012.
Idaho Power accelerated the release of the wind RFP to take advantage of the
benefits offered in the American Recovery and Reinvestment Act of 2009 (ARRA or
the economic stimulus package). Proposals were received in June 2009 and Idaho
Power expects to submit a contract to the IPUC for approval in the first half
of 2010.
Combined Heat and Power (CHP) RFP
CHP resources were not included in the 2009 IRP preferred
portfolio because of the level of uncertainty in being able to successfully
develop a CHP project. However, Idaho Power continues to work with large
customers and other parties to explore CHP development opportunities.
In November 2009, Idaho Power signed an agreement to jointly
investigate a CHP project with the Idaho Office of Energy Resources (IOER) and
Amalgamated Sugar, one of Idaho Powers large industrial customers. The
agreement establishes the framework for a CHP feasibility study to be performed
at Amalgamated Sugars Nampa, Idaho facility that could be as large as 100 MW.
IOER and Idaho Power will jointly fund the study.
Demand-Side Management Programs
In 2009, Idaho Power spent approximately $35 million on
energy efficiency and targeted demand reduction programs. Approximately $33
million of funding for these programs came from Idaho and Oregon energy
efficiency tariff riders. The balance of the funding comes from Idaho Power
base rates and from the remaining funds from the BPAs Conservation and
Renewables Discount, which was discontinued in 2007.
Idaho Power has several energy efficiency programs in place
and in development, targeting savings across the entire year and across a wide
range of customer segments. The emphasis of these programs is to reduce energy
consumption, especially during periods of high demand and minimize or delay the
need to build new supply-side alternatives. Idaho Powers programs include:
irrigation demand response and irrigation efficiency programs target irrigation customers with financial incentives for allowing Idaho Power to interrupt service to their irrigation pumps, and for either improving the energy efficiency of an irrigation system or installing a new energy efficiency system;
residential air conditioning equipment control measures;
residential energy efficiency programs targeted at new and existing homes, focusing on customer education and the application of energy efficiency remediation, including energy efficient building techniques, insulation augmentation, air duct sealing, and the use of efficient lighting; and
industrial and commercial facilities application of energy efficient techniques and technologies, operational and management processes to reduce energy consumption, and a new industrial peak reduction program.
Idaho Powers revised Irrigation Peak Rewards program design
was approved by the IPUC in January 2009. Participating customers receive a
credit on their bills in exchange for allowing Idaho Power, within specified
parameters, to interrupt service to their irrigation pumps during certain peak
hours in a six-week period in June and July. The cost of the program was $10
million in 2009 and is expected to increase to $11 million by 2011.
Idaho Powers voluntary Commercial Demand Response program
is for commercial and industrial customers larger than 200 kilowatts and was
approved in May 2009 by the IPUC. Idaho Power signed a five-year contract with
a third-party aggregator, EnerNOC, to operate the program and arranges with
Idaho Powers customers to achieve peak reductions. This program is
dispatchable (meaning Idaho Power will have flexibility to schedule peak
reduction benefits during times of greatest need) and is expected to increase
to 50 MW of summer peak demand reduction availability by 2012. The anticipated
cost of the program is approximately $12 million over its first five years.
Approximately $3 million of energy efficiency spending was
related to research, analysis and development, education, technology
evaluation, and market transformation. Some of this activity was done in
conjunction with the Northwest Energy Efficiency Alliance (NEEA). Idaho Power
contributed $1 million to the NEEA in 2009.
13
In 2009, Idaho Powers energy efficiency programs reduced
energy usage by approximately 160,000 MWh and the targeted demand reduction
programs resulted in a summer peak reduction of about 200 MW.
Environmental Regulation
Idaho Powers activities are subject to a broad range of
federal, state, regional and local laws and regulations designed to protect,
restore and enhance the quality of the environment including air, water, and
solid waste. Environmental regulation continues to impact Idaho Powers
operations due to the cost of installation and operation of equipment and
facilities required for compliance with such regulations, and the modification of
system operations to accommodate such regulations. In addition to generally
applicable regulations, the FERC licenses issued for Idaho Powers
hydroelectric generating plants have environmental requirements such as
aeration of turbine water to meet dissolved gas and temperature standards in
the tail waters downstream from the plants. Idaho Power monitors these issues
and reports the results to the appropriate regulatory agencies.
Idaho Power co-owns three coal-fired power plants and owns
two natural gas combustion turbine power plants that are subject to a broad
range of environmental requirements, including air quality regulation.
Idaho Powers environmental compliance costs will continue
to be significant for the foreseeable future especially with potential
additional regulation under discussion at the state and federal level. For a
more detailed discussion of these and other environmental issues, please see
Part II, Item 7 MD&A ENVIRONMENTAL ISSUES.
Idaho Power estimates its environmental expenditures, based
upon present environmental laws and regulations, will be as follows, excluding
Allowance for Funds Used During Construction (AFUDC) (in millions of dollars):
2010 |
2011 2012 |
||||
Studies and measures related to environmental concerns at hydroelectric facilities |
$ |
6 |
$ |
21 |
|
Investments in environmental equipment and facilities at thermal plants |
|
12 |
|
41 |
|
Total capital expenditures |
$ |
18 |
$ |
62 |
|
|
|
||||
Operating costs for environmental facilities - Hydroelectric |
$ |
16 |
$ |
41 |
|
Operating costs for environmental facilities - Thermal |
|
8 |
|
19 |
|
|
Total operations and maintenance |
$ |
24 |
$ |
60 |
|
|
|
|
|
IFS
IFS invests primarily in affordable housing developments,
which provide a return principally by reducing federal and state income taxes
through tax credits and accelerated tax depreciation benefits. IFS generated
tax credits of $8 million, $11 million and $15 million in 2009, 2008 and 2007,
respectively. IFSs portfolio also includes historic rehabilitation projects
such as the Empire Building in Boise, Idaho. IFS made $14 million and $8
million of new investments during 2009 and 2008, respectively, and will
continue to review future legislation for new opportunities for investment that
will be commensurate with the ongoing needs of IDACORP.
IFS has focused on a diversified approach to its investment
strategy in order to limit both geographic and operational risk. Over 90
percent of IFSs investments have been made through syndicated funds. At
December 31, 2009, the gross amount of IFSs portfolio equaled $197 million in
tax credit investments. These investments cover 49 states, Puerto Rico and the
U.S. Virgin Islands. The underlying investments include over 700 individual
properties, of which all but three are administered through syndicated funds.
IDA-WEST
Ida-West operates and has a 50 percent interest in nine
hydroelectric plants with a total generating capacity of 45 MW. Four of the
projects are located in Idaho and five are in northern California. All nine
projects are qualifying facilities under PURPA. Idaho Power purchased all of
the power generated by Ida-Wests four Idaho hydroelectric projects at a cost
of $9 million in 2009 and $8 million in both 2008 and 2007.
ITEM 1A. RISK FACTORS
The following are factors that could have a significant
impact on the operations and financial results of IDACORP, Inc. and Idaho Power
Company and could cause actual results or outcomes to differ materially from
those discussed in any forward-looking statements:
Reduced hydroelectric generation can reduce revenues and increase costs, and reduce earnings and cash flows. Idaho Power Company has a predominately hydroelectric generating base. Because of Idaho Power Companys heavy reliance on hydroelectric generation, water can significantly affect its operations. When hydroelectric generation is reduced, Idaho Power Company must increase its use of generally more expensive thermal generating resources and purchased power and opportunities for off-system sales are reduced, which reduces revenues. In addition, while Idaho Power Company can expect to recover the majority of the net power supply costs above the level included in its rates, recovery of the excess amounts does not occur until the subsequent power cost adjustment year.
Continuing declines in stream flows and over-appropriation of water in Idaho may reduce hydroelectric generation and revenues and increase costs. The combination of declining Snake River base flows, over-appropriation of water and drought conditions have led to disputes among surface water and ground water irrigators, and the state of Idaho. Recharging the Eastern Snake Plain Aquifer, which contributes to Snake River flows, by diverting surface water to porous locations and permitting it to sink into the aquifer is one proposed solution to the dispute. Diversions from the Snake River for aquifer recharge may further reduce Snake River flows available for hydroelectric generation and reduce Idaho Power Companys revenues and increase costs. Idaho Power Companys recent settlement agreement with the state of Idaho resolves litigation regarding certain Idaho Power Company water rights on the Snake River and provides for ongoing Snake River water issues to be addressed in the comprehensive aquifer management plan process. However, there is no assurance that this process will lead to increased Snake River stream flows for Idaho Power Companys hydroelectric projects. Idaho Power Company also has initiated legal action against the U.S. Bureau of Reclamation over the interpretation and effect of a 1923 contract with the U.S. Bureau of Reclamation on the operation of the American Falls Reservoir and the release of water from that reservoir to be used at Idaho Power Companys downstream hydroelectric projects. The comprehensive aquifer management plan process and the resolution of the litigation may affect Snake River flows available for hydroelectric generation and thereby reduce Idaho Power Company revenues and increase costs.
Idaho Power Companys reliance on coal and natural gas to fuel its power generation facilities exposes it to risk of increased costs and reduced earnings. In addition to hydroelectric generation, Idaho Power Company relies on coal and natural gas to fuel its generation facilities. Market price increases in coal and natural gas can result in reduced earnings. Increases in demand for natural gas, including increases in demand due to greater industry reliance on natural gas for power generation, may result in market price increases, short-term price volatility and/or supply availability issues. In addition, delivery of coal and natural gas depends upon gas pipelines, rail lines, rail cars and roadways. Any disruption in Idaho Power Companys fuel supply may require the company to find alternative fuel sources at higher costs, to produce power from higher cost generation facilities or to purchase power from other sources at higher costs.
Load growth in Idaho Power Companys service territory exposes it to greater market and operational risk and could increase costs and reduce earnings and cash flows.
o Increases in both the number of customers and the demand for energy have resulted and may continue to result in increased reliance on purchased power to meet customer load requirements. The price volatility of electricity has substantially increased from what it was at the inception of the power cost adjustment. While Idaho Power Company can expect to recover the majority of the net power supply costs above the amounts included in its rates, recovery of the excess amounts does not occur until the subsequent power cost adjustment year, and the remaining amount is absorbed by Idaho Power Company which could increase costs and reduce earnings and cash flows.
o Load growth can result in the need for additional investments in Idaho Power Companys infrastructure to serve the new load. If Idaho Power Company were unable to secure timely rate relief from the Idaho Public Utilities Commission, the Oregon Public Utility Commission or the Federal Energy Regulatory Commission to recover the costs of these additional investments, the resulting regulatory lag would have a negative effect on earnings and cash flows.
15
o Load growth can create planning and operating difficulties for Idaho Power Company that can negatively impact its ability to reliably serve customers.
Weather can reduce power sales and revenues and reduce earnings and cash flows. Warmer than normal winters, cooler than normal summers and increased rainfall during the irrigation seasons will reduce retail revenues from power sales and may impact the amount and timing of hydroelectric generation. Extreme weather events can disrupt transmission and distribution systems and cause service interruptions and extended outages, and potentially interrupt use of generation resources. Disruption in transmission and distribution systems increases operations and maintenance expenses and reduces earnings and cash flows.
Idaho Power Companys risk management policy and programs relating to hedging power and gas exposures and counterparty creditworthiness may not always perform as intended, and we may suffer economic losses. Idaho Power Company actively manages the market risk inherent in its energy related activities and counterparty credit positions. Idaho Power Company has procedures that monitor compliance with our risk management policies and programs, including verification of transactions, regular portfolio reporting of various risk management metrics and daily counterparty credit risk analysis. However, actual hydroelectric and thermal generation, transmission availability and market prices may be significantly different than those originally planned for when we enter into our risk management positions. The high volatility of these items creates uncertainty in the appropriate amount of hedging activity to pursue. Forecasts of future loads and available resources to meet those loads are inherently uncertain and may cause Idaho Power Company to over- or under-hedge actual resource needs, exposing the company to market risk on the over- or under-hedged position. Changes in market prices are also unpredictable and can at times result in Idaho Power Companys hedged positions performing less favorably than unhedged positions. In addition, Idaho Power Companys counterparty credit policies may not prevent counterparties from failing to perform, forcing the company to replace forward contracts with transactions in the open market. As a result, risk management decisions may have significant impacts if actual events result in greater losses or costs in delivering energy to customers and could negatively affect financial condition, results of operations or cash flows.
Increased capital expenditures can significantly affect liquidity. Increases in both the number of customers and the demand for energy require expansion and reinforcement of transmission and distribution systems and generating facilities. If Idaho Power Company does not receive timely regulatory recovery, Idaho Power Company will have to rely more on external financing for its future utility construction expenditures. These large planned expenditures may weaken the consolidated financial profile of IDACORP, Inc. and Idaho Power Company. Additionally, a significant portion of Idaho Power Companys facilities were constructed many years ago. Aging equipment, even if maintained in accordance with industry practices, may require significant capital expenditures. Failure of equipment or facilities used in Idaho Power Companys system could potentially increase repair and maintenance expenses, purchased power expenses and capital expenditures.
If the Idaho Public Utilities Commission, the Oregon Public Utility Commission or the Federal Energy Regulatory Commission grant less rate recovery in rate case filings than Idaho Power Company needs to cover increased costs of providing services, earnings and cash flows may be reduced . If the Idaho Public Utilities Commission, the Oregon Public Utility Commission or the Federal Energy Regulatory Commission grant less rate recovery in rate case filings than Idaho Power Company needs to cover increased costs of providing services, it may have a negative effect on earnings and cash flows and could result in downgrades of IDACORP, Inc.s and Idaho Power Companys credit ratings.
Climate change could affect customer demand and hydroelectric generation and disrupt transmission and distribution systems, reducing earnings and cash flows. Long-term climate change could affect Idaho Power Companys business in a variety of ways, including: (i) changes in temperature and precipitation could affect customer demand, (ii) extreme weather events could increase service interruptions, outages, and maintenance costs; (iii) changes in the amount and timing of snowpack and stream flows could adversely affect hydroelectric generation, and (iv) legislative and/or regulatory developments related to climate change could affect plans and operations including placing restrictions on the construction of new generation resources, the expansion of existing resources, or the operation of generation resources in general, and (v) consumer preference for, and resource planning decisions requiring, renewable or low GHG-emitting sources of energy could impact demand from existing sources and require significant investment in new generation and transmission resources. Any of these effects of climate change could reduce Idaho Power Companys earnings and cash flows.
16
Complying with environmental laws and regulations will increase capital expenditures and operating costs and may reduce Idaho Power Companys earnings and cash flows and ability to meet the electricity needs of its customers. Idaho Power Company is subject to extensive federal, state and local environmental statutes, rules and regulations relating to air quality, water quality, natural resources and health and safety. Compliance with these environmental statutes, rules and regulations involves significant capital and operating expenditures. Congress is considering legislation to limit and reduce greenhouse gas emissions, and the Environmental Protection Agency is taking action to address climate change and regulate greenhouse gas emissions, including the adoption of new reporting requirements that apply to Idaho Power Companys facilities. The Environmental Protection Agency has also made an endangerment finding for greenhouse gas emissions from motor vehicles and has indicated that the Clean Air Act will require it to regulate carbon dioxide and other greenhouse gas emissions from major stationary sources, including Idaho Power Companys thermal facilities, once it adopts greenhouse gas emission standards for motor vehicles. The adoption of a mandatory federal program to reduce carbon dioxide and other greenhouse gas emissions would raise uncertainty about the future viability of fossil fuels, specifically coal, as an economical energy source for new and existing electric generation facilities. Mercury and other pollutant emissions from Idaho Power Companys thermal facilities are also subject to extensive regulation. The adoption of new statutes, rules and regulations to reduce emissions, including controls to reduce carbon dioxide, greenhouse gas, mercury or other pollutant emissions will result in increased capital expenditures and could increase the cost of operating coal-fired generating plants or make them uneconomical to operate and result in reduced earnings and cash flows.
Complying with state or federal renewable energy portfolio standards could increase capital expenditures and operating costs and reduce earnings and cash flows. A number of states have adopted renewable energy portfolio standards. Idaho Power Companys operations in Oregon will be required to comply with a ten percent renewable energy portfolio standard beginning in 2025, and it is possible that Idaho and other states in which Idaho Power Company operates or sells power could adopt renewable energy portfolio standards in the future. A bill passed by the U.S. House of Representatives on June 26, 2009, would, if enacted, require utilities to obtain as much as 20 percent of their electricity from renewable sources by 2020 and reduce demand by an additional 5 percent through conservation and increased energy efficiency. A bill pending in the U.S. Senate would require 15 percent of electricity from renewable sources by 2021. New state or federal renewable energy portfolio standards could increase capital expenditures and operating costs and reduce earnings and cash flows.
The listing as threatened or endangered under the Endangered Species Act of fish, wildlife or plant species that are found in the areas of Idaho Power Companys generation facilities or transmission lines may require mitigation, affect the location of a project or the ability to construct a project and result in increased capital expenditures and operating costs. Relicensing of the Hells Canyon and Swan Falls hydroelectric projects and the construction of Langley Gulch and the Gateway West and Boardman to Hemingway transmission lines require consultation under the Endangered Species Act to determine the effects of these projects on any listed species within the project areas. The recent listing of slickspot peppergrass as a threatened species will require an Endangered Species Act consultation for the transmission and water lines for Langley Gulch as well as for the Gateway West and Boardman to Hemingway transmission lines. This listing may also affect Idaho Power Companys ability to purchase wind power from any wind power farms that were to be built in these areas. Any negative effects of the listing of slickspot peppergrass or any other species under the Endangered Species Act may require mitigation, cause a delay in relicensing or construction of projects, affect the location or ability to construct a project and increase the costs of construction and operations.
Conditions that may be imposed in connection with hydroelectric license renewals may require large capital expenditures, increase operating costs, reduce hydroelectric production and reduce earnings and cash flows. Idaho Power Company is currently involved in renewing federal licenses for several of its hydroelectric projects. The Federal Energy Regulatory Commission may impose conditions with respect to environmental, operating and other matters in connection with the renewal of Idaho Power Companys licenses. These conditions could have a negative effect on Idaho Power Companys operations, require large capital expenditures and increase operating costs, reduce hydroelectric production and reduce earnings and cash flows.
17
Idaho Power Companys business is subject to substantial governmental regulation and may be adversely affected by increased costs resulting from, or liability under, existing or future regulations or requirements. Idaho Power Company is subject to extensive federal and state laws, policies, and regulations, as well as regulatory actions and regulatory audits, including those of the Federal Energy Regulatory Commission, the Environmental Protection Agency, the North American Electric Reliability Corporation, the Western Electricity Coordinating Council and the public utility commissions in Idaho, Oregon and Wyoming. Some of these regulations are changing or subject to interpretation, and failure to comply may result in penalties or other adverse consequences. Idaho Power Company has reported compliance issues to the Federal Energy Regulatory Commission, and the Western Electricity Coordinating Council has recently completed an audit of reliability standards. Compliance with these requirements directly influences Idaho Power Companys operating environment and may significantly increase Idaho Power Companys operating costs.
IDACORP, Inc., its affiliate IDACORP Energy and Idaho Power Company are subject to costs and other effects of legal and regulatory proceedings, settlements, investigations and claims. IDACORP, Inc., IDACORP Energy and Idaho Power Company are involved in a number of proceedings, including the California refund proceeding, a portion of which remains pending before the Federal Energy Regulatory Commission and the United States Court of Appeals for the Ninth Circuit; a refund proceeding affecting sellers of wholesale power in the spot market in the Pacific Northwest; and show cause proceedings originating at the Federal Energy Regulatory Commission, a portion of which remains pending in the United States Court of Appeals for the Ninth Circuit. It is possible that additional proceedings related to the western energy situation may be filed in the future against IDACORP, Inc., IDACORP Energy or Idaho Power Company. IDACORP, Inc. and Idaho Power Company are or may also be subject to costs and other effects of additional legal claims, actions and complaints, including those related to the Jim Bridger, Valmy and Boardman coal-fired plants, in which Idaho Power Company holds an ownership interest. State attorneys general have brought actions against companies, seeking additional disclosure of climate change-related risks and impacts, and private parties have brought tort actions against companies relating to their alleged contribution to climate change. If IDACORP, Inc., IDACORP Energy or Idaho Power Company are required to make payments in connection with any legal or regulatory proceeding, settlement, investigation or claim, earnings and cash flows could be negatively affected.
As a holding company, IDACORP, Inc. does not have its own operating income and must rely on the upstream cash flows from its subsidiaries to pay dividends and make debt payments. IDACORP, Inc. is a holding company and thus its primary assets are shares or other ownership interests of its subsidiaries, primarily Idaho Power Company. Consequently, IDACORP, Inc.s ability to pay dividends and to service its debt is dependent upon dividends and other payments received from its subsidiaries. IDACORP, Inc.s subsidiaries are separate and distinct legal entities and have no obligation to pay any amounts to IDACORP, Inc., whether through dividends, loans or other payments. The ability of IDACORP, Inc.s subsidiaries to pay dividends or make distributions to IDACORP, Inc. depends on several factors, including their actual and projected earnings and cash flow, capital requirements and general financial condition, regulatory restrictions, and the prior rights of holders of their existing and future first mortgage bonds and other debt securities.
A downgrade in IDACORP, Inc.s and Idaho Power Companys credit ratings could negatively affect the companies ability to access capital, increase their cost of borrowing, and require the companies to post collateral with transaction counterparties. Credit rating agencies periodically review the corporate credit ratings and long-term ratings of IDACORP, Inc. and Idaho Power Company. IDACORP, Inc. and Idaho Power Company also have borrowing arrangements that rely on the ability of the banks to fund loans or support commercial paper. Downgrades of IDACORP, Inc.s or Idaho Power Companys credit ratings, or those affecting relationship banks, could limit the companies ability to access capital, including the commercial paper markets, require the companies to pay a higher interest rate on their debt and require the companies to post collateral with transaction counterparties.
Volatility and decreased lending capacity in the financial markets may negatively affect IDACORP, Inc.s and Idaho Power Companys ability to access capital and/or increase their cost of borrowing. IDACORP, Inc. and Idaho Power Company require liquidity to pay operating expenses and principal of and interest on debt and to finance capital expenditures. Financial markets have experienced extreme volatility and disruption, causing the cost of borrowing to rise and the availability of liquidity and credit for borrowers to decrease; As a result, IDACORP, Inc. and Idaho Power Company may experience higher interest costs and/or be unable to access capital, including the commercial paper markets. These conditions may adversely affect IDACORP, Inc.s and Idaho Power Companys results of operations, financial condition and cash flows.
18
One or more of the banks participating in IDACORP, Inc.s and Idaho Power Companys credit facilities could default on their obligations to fund loans requested by the companies or could withdraw from participation in the credit facilities, which could negatively affect cash flows and the ability to meet capital requirements. IDACORP, Inc. and Idaho Power Company have $100 million and $300 million multi-year revolving credit facilities, respectively, with a group of lender banks that expire in April 2012. These facilities supplement operating cash flow and provide a primary source of liquidity. The facilities are also used as backup for commercial paper borrowings and are available for general corporate purposes. IDACORP, Inc. and Idaho Power Company are subject to the risk that one or more of the participating banks may default on their obligations to make loans under the credit facilities. IDACORP, Inc. and Idaho Power Companys inability to obtain loans under their respective credit facilities as needed could negatively affect cash flows and the ability to meet capital requirements.
IDACORP and Idaho Power Company may incur losses on their investments or be unable to sell their investments when they desire to do so, which could adversely affect their liquidity and financial condition. IDACORP and Idaho Power Company invest cash in short-term interest bearing accounts, including money market funds. Volatility in the financial markets may result in a lack of liquidity and declines in value of some money market funds. The companies may realize additional losses on some or all of their invested funds or be unable to sell their investments when they desire to do so. This could adversely affect IDACORPs and Idaho Power Companys liquidity and financial condition.
National and regional economic conditions may cause increased late payments and uncollectible accounts, which would reduce earnings and cash flows. Recent concerns over energy costs, the availability and cost of credit, declining business and increased unemployment have contributed to a recession. These factors have resulted, and may continue to result, in an increase in late payments and uncollectible accounts and reduce IDACORP Inc.s and Idaho Power Companys earnings and cash flows.
National and regional economic conditions, in conjunction with increased electric rates, may reduce energy consumption, which may reduce revenues and future growth. The present economic recession and increased rates may reduce the amount of energy our customers consume, result in a loss of customers and reduce customer growth. A decrease in overall customer usage may reduce revenues, earnings, and future growth.
Adverse results of income tax audits could reduce earnings and cash flows. The outcome of ongoing and future income tax audits could differ materially from the amounts currently recorded, and the difference could reduce IDACORPs and Idaho Power Companys earnings and cash flows.
Employee workforce factors could increase costs and reduce earnings. Idaho Power Company is subject to workforce factors, including, but not limited to, loss or retirement of key personnel, availability of qualified personnel, an aging workforce, and impacts of efforts to organize workforce, including the possible unionization of one or more segments of the workforce. The costs of attracting and retaining appropriately qualified employees to replace an aging workforce could reduce earnings and cash flows.
Terrorist threats and activities could result in reduced revenues and increased costs. IDACORP, Inc. and Idaho Power Company are subject to direct and indirect effects of terrorist threats and activities. Potential targets include generation and transmission facilities. The effects of terrorist threats and activities could prevent Idaho Power Company from purchasing, generating or transmitting power and result in reduced revenues and increased costs.
IDACORP, Inc. and Idaho Power Company could be vulnerable to security breaches or other similar events that could disrupt their operations, require significant capital expenditures and/or result in claims against the companies. In the normal course of business, Idaho Power Company collects, processes and retains sensitive and confidential customer and proprietary information. Despite the security measures in place, Idaho Power Companys facilities and systems, and those of third-party service providers, could be vulnerable to security breaches or other similar events that could interrupt operations, resulting in a shutdown of service and expose Idaho Power Company to liability. In addition, Idaho Power Company may be required to expend significant capital and other resources to protect against security breaches or to alleviate problems caused by security breaches.
ITEM 1B. UNRESOLVED STAFF COMMENTS
None
ITEM 2. PROPERTIES
Idaho Powers system is comprised of 17 hydroelectric
generating plants located in southern Idaho and eastern Oregon, two natural
gas-fired plants located in southern Idaho and interests in three coal-fired
steam electric generating plants located in Wyoming, Nevada and Oregon. The
system also includes approximately 4,796 pole miles of high-voltage
transmission lines, 23 step-up transmission substations located at power
plants, 22 transmission substations, eight switching stations, 223 energized
distribution substations (excluding mobile substations and dispatch centers)
and approximately 26,675 pole miles of distribution lines.
Idaho Power holds FERC licenses for all of its hydroelectric
projects that are subject to federal licensing. These projects and the other
generating stations and their nameplate capacities are listed below:
Relicensing of Idaho Powers hydroelectric projects is
discussed in Part II, Item 7 - MD&A RELICENSING OF HYDROELECTRIC
PROJECTS.
Idaho Power owns in fee all of its principal plants and
other important units of real property, except for portions of certain projects
licensed under the FPA and reservoirs and other easements. Idaho Powers property
is also subject to the lien of its Mortgage and Deed of Trust and the
provisions of its project licenses. In addition, Idaho Powers property is
subject to minor defects common to properties of such size and character that
do not materially impair the value to, or the use by, Idaho Power of such
properties. Idaho Power considers its properties to be well-maintained and in
good operating condition.
20
IERCo owns a one-third interest in Bridger Coal Company and
coal leases near the Jim Bridger generating plant in Wyoming from which coal is
mined and supplied to the plant.
Ida-West holds 50 percent interests in nine operating
hydroelectric plants with a total generating capacity of 45 MW. These plants
are located in Idaho and California.
Please see Note 10 to IDACORPs and Idaho Powers
consolidated financial statements.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None
EXECUTIVE OFFICERS OF THE REGISTRANTS
The names, ages and positions of all of the executive
officers of IDACORP, Inc. and Idaho Power Company are listed below along with
their business experience during the past five years. Mr. J. LaMont Keen and
Mr. Steven R. Keen are brothers. There are no other family relationships among
these officers, nor is there any arrangement or understanding between any
officer and any other person pursuant to which the officer was elected.
J. LAMONT KEEN, 57
President and Chief Executive Officer of IDACORP, Inc., July 1, 2006 present.
President and Chief Executive Officer of Idaho Power Company, November 17, 2005 present.
Executive Vice President of IDACORP, Inc., March 1, 2002 July 1, 2006.
President and Chief Operating Officer of Idaho Power Company, March 1, 2002 November 17, 2005.
Senior Vice President Administration and Chief Financial Officer of IDACORP, Inc. and Idaho Power Company, May 1999 March 2002.
Member of the Boards of Directors of both IDACORP, Inc. and Idaho Power Company.
DARREL T. ANDERSON, 51
Executive Vice President Administrative Services and Chief Financial Officer of IDACORP, Inc. and Idaho Power Company, October 1, 2009 present.
Senior Vice President Administrative Services and Chief Financial Officer of IDACORP, Inc. and Idaho Power Company, July 1, 2004 October1, 2009.
Vice President, Chief Financial Officer and Treasurer of IDACORP, Inc. and Idaho Power Company, March 2002 July 2004
Vice President Finance and Treasurer of IDACORP, Inc. and Idaho Power Company, May 1999 March 2002.
DANIEL B. MINOR, 52
Executive Vice President Operations of Idaho Power Company, October 1, 2009 present.
Senior Vice President Delivery of Idaho Power Company, July 1, 2004 October 1, 2009.
Vice President Administrative Services & Human Resources of IDACORP, Inc. and Idaho Power Company, November 2003, July 2004
Vice President - Corporate Services of Idaho Power Company, May 2003 November 2003
Director of Audit Services of Idaho Power Company, July 2001 May 2003.
REX BLACKBURN, 54
Senior Vice President and General Counsel, IDACORP, Inc. and Idaho Power Company, April 1, 2009 present.
Lead Counsel of Idaho Power Company, January 1, 2008 March 31, 2009.
Lawyer at Blackburn and Jones, LLP, January 2003 December 31, 2007.
LISA A. GROW, 44
Senior Vice President Power Supply of Idaho Power Company, October 1, 2009 present.
Vice President Delivery Engineering and Operations of Idaho Power Company, July 20, 2005 September 30, 2009
General Manager of Grid Operations and Planning of Idaho Power Company, October 2004 July 20, 2005
Operations Manager (Grid Ops) of Idaho Power Company, March 2002 October 2004.
21
STEVEN R. KEEN, 49
Vice President and Treasurer of IDACORP, Inc. and Idaho Power Company, June 1, 2006 present.
President of IDACORP Financial Services, September 1998 May 31, 2007.
PATRICK A. HARRINGTON, 49
Corporate Secretary of IDACORP, Inc. and Idaho Power Company, March 15, 2007 present.
Senior Attorney, June 2003 March 15, 2007.
DENNIS C. GRIBBLE, 57
Vice President and Chief Information Officer of IDACORP, Inc. and Idaho Power Company, June 1, 2006 present.
Vice President and Treasurer of IDACORP, Inc. and Idaho Power Company, July 2004 June 1, 2006.
LORI D. SMITH, 49
Vice President Corporate Planning and Chief Risk Officer of IDACORP, Inc. and Idaho Power Company, January 1, 2008 present.
Vice President Finance and Chief Risk Officer of IDACORP, Inc. and Idaho Power Company, July 2004 January 1, 2008.
LUCI K. MCDONALD, 52
Vice President Human Resources of IDACORP, Inc. and Idaho Power Company, December 2004 present.
Corporate Staff Director of Human Resources of Boise Cascade Corporation, September 1999 November 2004.
NAOMI SHANKEL, 38
Vice President, Audit and Compliance of IDACORP, Inc. and Idaho Power Company, September 21, 2006 present.
Director, Audit Services of IDACORP, Inc. and Idaho Power Company, July 2003 September 21, 2006.
JEFFREY MALMEN, 42
Vice President Public Affairs of IDACORP, Inc. and Idaho Power Company, October 1, 2008 present.
Senior Manager Governmental Affairs of IDACORP, Inc. and Idaho Power Company, December xx, 2007 October 1, 2008
Chief of Staff of the Office of Idaho Governor C.L. Butch Otter, January 2007 November 2007
Chief of Staff of the Office of Idaho Congressman C.L. Butch Otter, January 2001 December 2006.
JOHN R. GALE, 59
Vice President Regulatory Affairs of Idaho Power Company, March 2001 present.
WARREN KLINE, 54
Vice President Customer Service and Regional Operations of Idaho Power Company, July 20, 2005 present.
General Manager of Regional Operations of Idaho Power Company, March 2002 July 20, 2005.
N. VERN PORTER, 50
Vice President Delivery Engineering and Operations, Idaho Power Company, October 1, 2009 present.
General Manager of Power Production of Idaho Power Company, April 22, 2006 October1, 2009.
Senior Manager of Power Supply Operations of Idaho Power Company, August 2003 April 22, 2006.
22
PART II
ITEM 5. MARKET FOR REGISTRANTS COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES
IDACORPs common stock, without par value, is traded on the
New York Stock Exchange. On February 19, 2010, there were 13,803 holders of
record and the stock price was $33.02 per share.
The outstanding shares of Idaho Powers common stock, $2.50
par value, are held by IDACORP and are not traded. IDACORP became the holding
company of Idaho Power on October 1, 1998.
The amount and timing of dividends paid on IDACORPs common
stock are within the sole discretion of IDACORPs Board of Directors. The
Board of Directors reviews the dividend rate quarterly to determine its
appropriateness in light of IDACORPs current and long-term financial position
and results of operations, capital requirements, rating agency requirements,
legislative and regulatory developments affecting the electric utility industry
in general and Idaho Power in particular, competitive conditions and any other
factors the Board of Directors deems relevant. The ability of IDACORP to pay dividends
on its common stock is dependent upon dividends paid to it by its subsidiaries,
primarily Idaho Power.
A covenant under IDACORPs credit facility and Idaho Powers
credit facility described in MD&A - LIQUIDITY AND CAPITAL RESOURCES -
Financing Programs Credit Facilities requires IDACORP and Idaho Power to
maintain leverage ratios of consolidated indebtedness to consolidated total
capitalization, as defined, of no more than 65 percent at the end of each
fiscal quarter.
Idaho Powers Revised Code of Conduct approved by the IPUC
on April 21, 2008, states that Idaho Power will not pay any dividends to
IDACORP that will reduce Idaho Powers common equity capital below 35 percent
of its total adjusted capital without IPUC approval. Idaho Power must obtain
approval of the OPUC before it could directly or indirectly loan funds or issue
notes or give credit on its books to IDACORP.
Idaho Powers ability to pay dividends on its common stock
held by IDACORP and IDACORPs ability to pay dividends on its common stock are
limited to the extent payment of such dividends would violate the covenants or
Idaho Powers Code of Conduct. At December 31, 2009, the leverage ratios for
IDACORP and Idaho Power were 51 percent and 53 percent, respectively. Based on
these restrictions, IDACORPs and Idaho Powers dividends were limited to $608
million and $514 million, respectively, at December 31, 2009.
Idaho Powers articles of incorporation contain restrictions
on the payment of dividends on its common stock if preferred stock dividends
are in arrears. Idaho Power has no preferred stock outstanding. IDACORP and
Idaho Power paid dividends of $57 million, $54 million and $53 million in 2009,
2008 and 2007, respectively.
The following table shows the reported high and low sales
price of IDACORPs common stock and dividends paid for 2009 and 2008 as
reported in the consolidated transaction reporting system.
|
Quarters |
||||||||
Common Stock, without par value: |
1 st |
2 nd |
3 rd |
4 th |
|||||
2009 |
|
|
|
|
|||||
|
High |
$ |
30.47 |
$ |
26.20 |
$ |
29.56 |
$ |
32.83 |
|
Low |
|
20.91 |
|
22.22 |
|
24.68 |
|
27.71 |
|
Dividends paid per share |
|
0.30 |
|
0.30 |
|
0.30 |
|
0.30 |
2008 |
|
|
|
|
|
|
|
|
|
|
High |
$ |
35.11 |
$ |
33.36 |
$ |
33.89 |
$ |
30.66 |
|
Low |
|
28.74 |
|
28.55 |
|
27.96 |
|
21.88 |
|
Dividends paid per share |
|
0.30 |
|
0.30 |
|
0.30 |
|
0.30 |
|
|
|
|
|
|
|
|
|
|
Issuer Purchases of Equity Securities:
23
None
Performance Graph
The following performance graph
shows a comparison of the five-year cumulative total shareholder return for
IDACORP common stock, the S&P 500 Index and the Edison Electric Institute
(EEI) Electric Utilities Index. The data assumes that $100 was invested on
December 31, 2004, with beginning-of-period weighting of the peer group indices
(based on market capitalization) and monthly compounding of returns.
Source: Bloomberg and Edison Electric Institute
|
|
|
EEI Electric |
|||
|
IDACORP |
S & P 500 |
Utilities Index |
|||
2004 |
$ |
100.00 |
$ |
100.00 |
$ |
100.00 |
2005 |
|
99.86 |
|
104.91 |
|
116.05 |
2006 |
|
136.18 |
|
121.46 |
|
140.14 |
2007 |
|
128.56 |
|
128.13 |
|
163.34 |
2008 |
|
111.83 |
|
80.73 |
|
121.03 |
2009 |
|
126.99 |
|
102.10 |
|
133.99 |
|
|
|
|
|
|
|
The foregoing performance graph and data shall not be deemed
filed as part of this Form 10-K for purposes of Section 18 of the Securities
Exchange Act of 1934 or otherwise subject to the liabilities of that section
and should not be deemed incorporated by reference into any other filing of
IDACORP or Idaho Power under the Securities Act of 1933 or the Securities
Exchange Act of 1934, except to the extent IDACORP or Idaho Power specifically
incorporates it by reference into such filing.
ITEM 6. SELECTED FINANCIAL DATA
In the second quarter of 2006, IDACORP management designated
the operations of two subsidiaries, IDACORP Technologies, Inc. and IDACOMM as
assets held for sale, and the companies were sold in July 2006 and February
2007, respectively. IDACORPs consolidated financial statements reflect the reclassification
of the results of these businesses as discontinued operations for all periods
presented. Beginning January 1, 2009, noncontrolling interests (previously
known as minority interests) were required to be classified as equity.
IDACORPs consolidated financial statements reflect the reclassification of
noncontrolling interests to equity for all periods presented.
ITEM 7. MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(Dollar amounts and Megawatt-hours (MWh) are in thousands
unless otherwise indicated).
INTRODUCTION:
In Managements Discussion and Analysis of Financial
Condition and Results of Operations (MD&A), the general financial condition
and results of operations for IDACORP, Inc. and its subsidiaries (collectively,
IDACORP) and Idaho Power Company and its subsidiary (collectively, Idaho Power)
are discussed.
IDACORP is a holding company formed in 1998 whose principal
operating subsidiary is Idaho Power. IDACORP is subject to the provisions of the
Public Utility Holding Company Act of 2005, which provides certain access to
books and records to the Federal Energy Regulatory Commission (FERC) and state
utility regulatory commissions and imposes certain record retention and
reporting requirements on IDACORP.
25
Idaho Power is an electric utility with a service territory
covering approximately 24,000 square miles in southern Idaho and eastern
Oregon. Idaho Power is regulated by the FERC and the state regulatory
commissions of Idaho and Oregon. Idaho Power is the parent of Idaho Energy
Resources Co., (IERCo) a joint venturer in Bridger Coal Company, which supplies
coal to the Jim Bridger generating plant owned in part by Idaho Power.
IDACORPs other subsidiaries include:
IDACORP Financial Services, Inc. (IFS), an investor in affordable housing and other real estate investments;
Ida-West Energy Company (Ida-West), an operator of small hydroelectric generation projects that satisfy the requirements of PURPA; and
IDACORP Energy (IE), a marketer of energy commodities, which wound down operations in 2003.
On February 23, 2007, IDACORP completed the sale of all of
the outstanding common stock of IDACOMM to American Fiber Systems, Inc.
While reading the MD&A, please refer to the accompanying
consolidated financial statements of IDACORP and Idaho Power, which present the
financial position at December 31, 2009 and 2008, and the results of operations
and cash flows for each company for the years ended December 31, 2009, 2008 and
2007.
FORWARD-LOOKING INFORMATION:
In connection with the safe harbor provisions of the Private
Securities Litigation Reform Act of 1995, IDACORP and Idaho Power are hereby
filing cautionary statements identifying important factors that could cause
actual results to differ materially from those projected in forward-looking
statements, as such term is defined in the Reform Act, made by or on behalf of
IDACORP or Idaho Power in this Annual Report on Form 10-K, in presentations, in
response to questions or otherwise. Any statements that express, or involve
discussions as to expectations, beliefs, plans, objectives, assumptions or
future events or performance, often, but not always, through the use of words
or phrases such as anticipates, believes, estimates, expects,
intends, plans, predicts, projects, may result, may continue or
similar expressions, are not statements of historical facts and may be
forward-looking. Forward-looking statements involve estimates, assumptions and
uncertainties and are qualified in their entirety by reference to, and are
accompanied by, the following important factors, which are difficult to
predict, contain uncertainties, are beyond IDACORPs or Idaho Powers control
and may cause actual results to differ materially from those contained in
forward-looking statements:
The effect of regulatory decisions by the Idaho Public Utilities Commission, the Oregon Public Utility Commission and the Federal Energy Regulatory Commission affecting our ability to recover costs and/or earn a reasonable rate of return including, but not limited to, the disallowance of costs that have been deferred;
Changes in and compliance with state and federal laws, policies and regulations, including new interpretations by oversight bodies, which include the Federal Energy Regulatory Commission, the North American Electric Reliability Corporation, the Western Electricity Coordinating Council, the Idaho Public Utilities Commission and the Oregon Public Utility Commission, of existing policies and regulations that affect the cost of compliance, investigations and audits, penalties and costs of remediation that may or may not be recoverable through rates;
Changes in tax laws or related regulations or new interpretations of applicable law by the Internal Revenue Service or other taxing jurisdiction;
Litigation and regulatory proceedings, including those resulting from the energy situation in the western United States, and penalties and settlements that influence business and profitability;
Changes in and compliance with laws, regulations and policies including changes in law and compliance with environmental, natural resources and endangered species laws, regulations and policies and the adoption of laws and regulations addressing greenhouse gas emissions, global climate change, and energy policies;
Global climate change and regional weather variations affecting customer demand and hydroelectric generation;
26
Over-appropriation of surface and groundwater in the Snake River Basin resulting in reduced generation at hydroelectric facilities;
Construction of power generation, transmission and distribution facilities, including an inability to obtain required governmental permits and approvals, rights-of-way and siting, and risks related to contracting, construction and start-up;
Operation of power generating facilities including performance below expected levels, breakdown or failure of equipment, availability of transmission and fuel supply;
Changes in operating expenses and capital expenditures, including costs and availability of materials, fuel and commodities;
Blackouts or other disruptions of Idaho Power Companys transmission system or the western interconnected transmission system;
Population growth rates and other demographic patterns;
Market prices and demand for energy, including structural market changes;
Increases in uncollectible customer receivables;
Fluctuations in sources and uses of cash;
Results of financing efforts, including the ability to obtain financing or refinance existing debt when necessary or on favorable terms, which can be affected by factors such as credit ratings, volatility in the financial markets and other economic conditions;
Actions by credit rating agencies, including changes in rating criteria and new interpretations of existing criteria;
Changes in interest rates or rates of inflation;
Performance of the stock market, interest rates, credit spreads and other financial market conditions, as well as changes in government regulations, which affect the amount and timing of required contributions to pension plans and the reported costs of providing pension and other postretirement benefits;
Increases in health care costs and the resulting effect on medical benefits paid for employees;
Increasing costs of insurance, changes in coverage terms and the ability to obtain insurance;
Homeland security, acts of war or terrorism;
Natural disasters and other natural risks, such as earthquake, flood, drought, lightning, wind and fire;
Adoption of or changes in critical accounting policies or estimates; and
New accounting or Securities and Exchange Commission requirements, or new interpretation or application of existing requirements.
Any forward-looking statement speaks only as of the date on
which such statement is made. New factors emerge from time to time and it is
not possible for management to predict all such factors, nor can it assess the
impact of any such factor on the business or the extent to which any factor, or
combination of factors, may cause results to differ materially from those
contained in any forward-looking statement.
EXECUTIVE OVERVIEW:
Business Strategy
IDACORPs business strategy emphasizes Idaho Power as
IDACORPs core business. Idaho Power detailed a three-part strategy of
responsible planning, responsible development and protection of resources, and
responsible energy use to ensure adequate energy supplies. Idaho Power
continues to evaluate and refine its business strategy to ensure coordination
and integration with all functional areas of the company. Idaho Powers
business strategy balances the interest of owners, customers and employees
while maintaining the companys financial stability and flexibility. The
strategy includes:
RESPONSIBLE PLANNING: Idaho Powers planning process is
intended to ensure adequate generation and transmission resources to meet
population growth and increasing electricity demand. This planning process now
integrates Idaho Powers regulatory strategies and financial planning,
including the consideration of regional economic development in the growing
communities we serve.
27
RESPONSIBLE DEVELOPMENT AND PROTECTION OF RESOURCES: Idaho
Powers business strategy has included the development and protection of
generation, transmission, distribution and associated infrastructure, and
natural resources Idaho Power depends upon. The strategy now includes
consideration of workforce planning, development and retention related to these
strategic elements.
RESPONSIBLE ENERGY USE: Idaho Powers business strategy has
included energy efficiency and demand response programs and preparation for
potential carbon and renewable portfolio standard legislation. The strategy
now includes targeted reductions relating to carbon emission intensity and public
disclosure of reporting these reductions.
2009 Financial Results
IDACORPs net income and earnings per diluted share for the
last three years were as follows:
|
2009 |
2008 |
2007 |
|||
Net Income Attributable to IDACORP, Inc. |
$ |
124,350 |
$ |
98,414 |
$ |
82,339 |
Average outstanding shares - diluted (000s) |
|
47,182 |
|
45,379 |
|
44,365 |
Earnings per diluted share |
$ |
2.64 |
$ |
2.17 |
$ |
1.86 |
|
|
|
|
|
|
|
The following table presents a reconciliation of IDACORP net
income for 2008 to 2009 (in millions):
Net Income Attributable to IDACORP, Inc. - 2008 |
|
|
$ |
98.4 |
|
Change in Idaho Power net income before taxes: |
|
|
|
|
|
|
Rate and other regulatory changes, net of PCA and FCA mechanisms |
$ |
48.8 |
|
|
|
Reduced sales volumes |
|
(23.3) |
|
|
|
Increase in other operations and maintenance expense, excluding FCA |
|
(2.8) |
|
|
|
Increase in depreciation expense |
|
(8.5) |
|
|
|
2008 OATT rate refund |
|
5.0 |
|
|
|
2008 investment impairment |
|
6.8 |
|
|
|
Other net increases |
|
0.3 |
|
|
Decrease in income tax expense |
|
2.1 |
|
|
|
|
Total increase in Idaho Power net income |
|
|
|
28.4 |
Decreased net income at IFS (net of tax) |
|
|
|
(2.9) |
|
Decrease in expenses at holding company (net of tax) |
|
|
|
0.7 |
|
Other net decreases (net of tax) |
|
|
|
(0.2) |
|
|
Net Income Attributable to IDACORP, Inc. - 2009 |
|
|
$ |
124.4 |
|
|
|
|
|
Changes to the Idaho power cost adjustment (PCA)
mechanism and base rate increases that both took effect in the first quarter of
2009, positively impacted net income as did decreased net power supply costs.
Earnings in 2009 also increased due to a May 2009 Oregon Public Utility
Commission (OPUC) stipulation allowing the deferral for future recovery of $6.4
million of excess power supply costs incurred in 2007.
Idaho Powers retail customer sales volumes decreased
four percent in 2009 as compared to 2008. Irrigation usage decreased 14
percent primarily due to increased precipitation. Economic factors and energy
conservation also contributed to the reduction in sales volume.
Other O&M expense increased due to an increase in
payroll related expenses and uncollectible accounts and was partially offset by
decreases in outside services and other office expenses. Depreciation expense
increased mainly due to the accelerated depreciation of the existing meter
infrastructure. Two items that positively impacted the comparison of 2009 to
2008 results relate to 2008 activities that did not recur in 2009; an OATT rate
refund ordered by the FERC that reduced transmission revenue and an impairment
of investments.
Idaho Powers 2009 effective income tax rate decreased
primarily due to examination settlements and the timing and amount of other
regulatory flow-through tax adjustments, partially offset by the tax expense on
higher pre-tax income.
There was no accelerated amortization of deferred
investment tax credits during 2009 as the Idaho jurisdictional earnings
exceeded 9.5 percent of the Idaho retail common equity, as permitted by the
Idaho 2009 settlement agreement.
28
Regulatory Matters
Idaho Power has a number of pending or recently completed
regulatory filings. Regulatory matters are discussed in more detail later in
the MD&A.
Idaho 2009 Settlement Agreement:
In January 2010,
the IPUC approved a settlement agreement among Idaho Power, several of Idaho
Powers customers, the IPUC staff and others with respect to rates for 2009
2011. The settlement contains four important elements: (1) a general rate freeze
until January 1, 2012, with some exceptions; (2) a specified distribution of
the expected 2010 PCA decrease to directly reduce customer rates, providing
some general rate relief to Idaho Power and resetting base level power supply
costs for the PCA going forward; (3) use of investment tax credits to get to a
9.5 percent return on equity in the Idaho jurisdiction; and (4) an equal
sharing of any Idaho earnings exceeding the authorized level of 10.5 percent.
Oregon 2009 General Rate Case:
In December 2009,
Idaho Power filed a Joint Stipulation and testimony in support of a stipulation
that would settle the revenue requirement issues surrounding the general rate
case filed on July 31, 2009. If approved by the OPUC, the Joint Stipulation
would result in a $5 million, or 15.4 percent, increase to base rates. The new
rates reflect a return on equity of 10.175 percent and an overall rate of
return of 8.061 percent. The requested effective date for new rates is March
1, 2010.
Oregon 2010 Annual Power Cost Update:
In October
2009, Idaho Power filed the October Update portion of its 2010 annual power
cost update (APCU). The filing reflects that revenues associated with Idaho
Powers base net power supply costs would increase $2.6 million over the
previous October Update, an average 8.2 percent increase. The actual impact of
the 2010 APCU will be determined once the March Forecast portion is filed in
March 2010 and combined with the October Update. Final rates are expected to
become effective on June 1, 2010.
Oregon Excess Power Cost Deferrals May-December 2007
Excess Power Costs:
In May 2009, the OPUC adopted a stipulation allowing
Idaho Power to defer excess net power supply costs of $6.4 million (including
interest through the date of the order) for the period May 1 through December
31, 2007. Idaho Power recorded this deferral in the second quarter of 2009.
Idaho and Oregon Rate Orders:
Idaho Power received
five additional rate orders from the IPUC and the OPUC at the end of May 2009.
The IPUC rate orders are for the Fixed Cost Adjustment mechanism, Idaho Energy
Efficiency Rider, Advanced Metering Infrastructure (AMI), and PCA, and the OPUC
rate order is for the Annual Power Cost Update. Each of these orders increases
rates, but only the AMI order, relating to the installation of new meters,
increases Idaho Powers rate base.
Open Access Transmission Tariff (OATT) Amended Legacy
Agreements:
In 2009, Idaho Power submitted filings to the FERC to increase
rates under two agreements Idaho Power has with PacifiCorp and to terminate
certain contract services, replacing them with OATT service. The FERC accepted
one of Idaho Powers filings, effective June 13, 2009, for a net annualized
revenue increase of $3.2 million. The FERC accepted the second filing and
suspended the rates, setting the case for settlement judge procedures and
hearing. Idaho Power began collecting the new rates effective August 19, 2009,
with a net annualized revenue increase of $3.7 million. Settlement discussions
are ongoing. The impact of these revised agreements on 2010 transmission
revenue is expected to be a $3.8 million increase as compared with 2009.
Integrated Resource Plan (IRP):
Idaho Power filed
the 2009 IRP with the IPUC and OPUC in December, 2009. The IRP addresses
available supply-side and demand-side resource options, planning period load
forecasts, potential resource portfolios, a risk analysis and near-term and
long-term action plans.
Liquidity
29
IDACORP and Idaho Power expect to continue financing capital
requirements with a combination of internally generated funds and externally
financed capital. In 2009, IDACORP issued 489,360 common stock shares through
its continuous equity program at an average price of $28.79 per share for
proceeds of $14 million. In March 2009, Idaho Power issued $100 million of its
6.15% First Mortgage Bonds and in November 2009, Idaho Power issued $130
million of its 4.5% First Mortgage Bonds. In December 2009, Idaho Power repaid
$80 million of its 7.2% First Mortgage Bonds. These matters are discussed in
more detail in LIQUIDITY AND CAPITAL RESOURCES later in the MD&A.
Capital Requirements:
Idaho Power has several major projects in development.
The most significant projects are summarized here and are discussed further in
LIQUIDITY AND CAPITAL RESOURCES Capital Requirements Major Projects.
Langley Gulch power plant: Langley Gulch will be a natural gas-fired combined cycle combustion turbine (CCCT) generating plant with a summer nameplate capacity of approximately 300 MWs and a winter capacity of approximately 330 MWs. The plant will be constructed at an estimated cost of $427 million near New Plymouth, Idaho commencing in summer 2010, and is anticipated to achieve commercial operation by November 1, 2012. Contract incentives may advance the commercial operation date to July 1, 2012. Idaho Power received cost recovery and ratemaking assurances from the IPUC for this project.
Transmission Projects:
The Boardman-Hemingway Line is a
proposed 500-kV line between a substation near Boardman, Oregon and the
Hemingway substation. Idaho Power estimates total construction costs of $600
million and expects its share of the project to be between 30 and 50 percent.
Idaho Power estimates the project will be completed in 2015. Idaho Power and
PacifiCorp are jointly exploring Gateway West, a project to build transmission
lines between Windstar, a substation located near Douglas, Wyoming and Hemingway
substation. The current estimated cost for Idaho Powers share of the project
is between $300 million and $500 million. Initial phases of the project could
be completed by 2014. Idaho Powers share may change and the timing of the
projects segments may be deferred and constructed as demand requires.
Pension Plan:
As Idaho Powers pension plan is below
the minimum required funding levels at January 1, 2010, future minimum
contributions are required. Based on the assumptions allowed under the PPA,
WRERA, Treasury guidance and IRS guidance, IDACORP and Idaho Power were not
required to contribute to the pension plan in 2009, and estimated minimum
required contributions will be approximately $6 million in 2010, $44 million in
2011, $47 million in 2012, $39 million in 2013, and $40 million in 2014. On
October 20, 2009, Idaho Power filed an application with the IPUC requesting the
clarification of a pension recovery method for cash contributions made to the
pension plan. On February 17, 2010, the IPUC approved a recovery methodology
that would permit Idaho Power to include in future rate cases a reasonable
amortization and recovery of cash contributions. The amortization of deferred
pension costs is expected to match the revenues received as future pension
contributions are recovered through rates. Approximately $29 million, $8
million and $3 million of pension expenses were deferred as a regulatory asset
in 2009, 2008, and 2007, respectively.
Other Issues
Water Management Issues
: Power generation at the
Idaho Power hydroelectric power plants on the Snake River depends on the state
water rights held by Idaho Power and the long-term sustainability of the Snake
River, tributary spring flows and the Eastern Snake Plain Aquifer that is
connected to the Snake River. Idaho Power continues to participate in water
management issues in Idaho that may affect those water rights and resources
with the goal to preserve, to the fullest extent possible, the long-term
availability of water for use at Idaho Powers hydroelectric projects on the
Snake River. For a further discussion of water management issues see LEGAL
MATTERS Snake River Basin Water Rights.
Environmental Issues:
Long-term climate change could
significantly affect Idaho Powers business and climate change regulations are
expected to have major implications for Idaho Power and the energy industry.
On September 17, 2009, IDACORPs and Idaho Powers Board of Directors approved
guidelines that established a goal to reduce the carbon dioxide (CO
2
)
emission intensity of Idaho Powers utility operations. The guidelines are
intended to further prepare Idaho Power for potential legislative and/or
regulatory restrictions on greenhouse gas (GHG) emissions while minimizing the
costs of complying with such restrictions on Idaho Powers customers.
30
Idaho Power, along with its partners in its coal plants, is
required to monitor and report quarterly to the Environmental Protection Agency
(EPA) their GHG emissions beginning January 1, 2010. The EPA has indicated
that it will begin to regulate GHG emissions from stationary sources, including
Idaho Powers facilities, through its new source review and operating permit
programs when the regulations relating to GHG emissions from motor vehicles are
finalized. Idaho Powers thermal facilities are also subject to EPA and/or
state-promulgated (i) national ambient air quality standards including those
for ozone and fine particulate matter, (ii) laws and regulations limiting
mercury emissions, (iii) regional haze best available retrofit technology
requirements and (iv) new source review and performance standards. Idaho
Powers environmental compliance costs will continue to be significant for the
foreseeable future, particularly in light of possible additional regulation at
the federal and state levels. These issues are discussed in more detail in
ENVIRONMENTAL ISSUES.
Boardman Coal Plant:
On January 14, 2010, Portland General Electric
announced that it intended to pursue an alternative operating plan, subject to
regulatory approval for its Boardman coal-fired electricity generation plant.
Under the plan, near-term expenditures for pollution control equipment would be
significantly reduced and the plant would either cease to operate in 2020, or
it would discontinue the use of coal as a fuel source. Idaho Power is a ten
percent owner of the plant, representing 64,200 kW of nameplate capacity. At
December 31, 2009, Idaho Powers net book value in the Boardman plant was $20
million with annual depreciation of approximately $1.2 million.
American Recovery and Reinvestment Act of 2009:
Under the ARRA, Idaho Power submitted a grant application to the Department of
Energy (DOE) in August 2009, requesting $47 million. This grant would match a
$47 million investment by Idaho Power in Smart Grid technology as well as other
incremental projects. In October 2009, Idaho Power received notice that its
application was selected for negotiation. Negotiations with the DOE on the
grant agreement terms are expected to be completed in the first quarter of
2010.
Key Operating and Financial Metrics
|
2010 |
2009 |
|
|
Estimate |
Actual |
|
Idaho Power Operation & Maintenance Expense (Millions) |
$295-$305 |
$293 |
|
Idaho Power Capital Expenditures (Millions) |
$355-$365 |
$273 |
|
Idaho Power Hydroelectric Generation (Million MWh) |
6.5-8.5 |
8.1 |
|
Non-regulated subsidiary earnings and holding company expenses (Millions) |
$0-$3.0 |
$1.8 |
|
Effective Income Tax Rates: |
|
|
|
|
Idaho Power |
13% - 17% |
23% |
|
Consolidated IDACORP |
6% - 10% |
15% |
|
|
|
|
The range for capital expenditures includes amounts for
Langley Gulch power plant, the Hemingway-Bowmont transmission line, the
Hemingway substation and expenditures for the siting and permitting of major
transmission expansions for the Boardman to Hemingway and Gateway West
transmission projects.
The projected range for annual hydroelectric generation is
based on 2009-2010 Snake River Basin snowpack at 60 percent of average on
February 21, 2010, with reservoir storage levels in selected federal reservoirs
upstream of Brownlee at approximately 118 percent of average as of February 21,
2010.
The effective income tax rate ranges include the utilization
of up to $25 million of additional deferred investment tax credit (ADITC)
amortization at Idaho Power. The rates do not reflect discrete events such as
examination settlements or method changes.
RESULTS OF OPERATIONS:
This section of the MD&A takes a closer look at the
significant factors that affected IDACORPs and Idaho Powers earnings over the
last three years. In this analysis, the results of 2009 are compared to 2008
and the results of 2008 are compared to 2007.
The following table presents earnings (losses) for IDACORP
and its subsidiaries:
31
|
2009 |
2008 |
2007 |
||||
Idaho Power |
$ |
122,559 |
$ |
94,115 |
$ |
76,579 |
|
IDACORP Financial Services |
|
521 |
|
3,426 |
|
7,112 |
|
IDACORP Energy |
|
(238) |
|
406 |
|
(171) |
|
Ida-West Energy |
|
2,727 |
|
2,353 |
|
2,223 |
|
Holding company expenses |
|
(1,219) |
|
(1,886) |
|
(3,471) |
|
Discontinued operations |
|
- |
|
- |
|
67 |
|
|
Net Income Attributable to IDACORP, Inc. |
$ |
124,350 |
$ |
98,414 |
$ |
82,339 |
Average outstanding shares - diluted (000s) |
|
47,182 |
$ |
45,379 |
|
44,365 |
|
Earnings per diluted share |
$ |
2.64 |
|
2.17 |
$ |
1.86 |
|
|
|
|
|
|
|
|
|
Utility Operations
Operating environment:
Idaho Power primarily uses
its hydroelectric and coal-fired generation facilities and long-term power
purchase agreements to supply the energy needed to serve customers. Regional
energy market purchases and sales are used to balance supply and demand
throughout the year.
Idaho Power develops operation plans during the year to
provide guidance for generation resource utilization and energy market
activities. Idaho Powers energy risk management policy and unit operating
requirements provide the framework for the plans. The plans incorporate
forecasts for generation unit availability, reservoir storage and stream flows,
gas and coal prices, customer loads and energy market prices.
In developing its plans, Idaho Power determines to what
extent its own resources can be used to meet forecast loads and when to
transact in the regional energy market. The allocation of hydroelectric
generation between heavy load and light load hours or calendar periods is also
a consideration. This allocation is intended to utilize the flexibility of the
hydroelectric system to shift generation to high value periods, while operating
within the constraints imposed on the system.
Hydroelectric generation depends on stream flows in the
Snake River, on which most of Idaho Powers hydroelectric facilities are
built. Stream flows are dependent on the amount of snow pack in the mountains
upstream of Idaho Powers hydroelectric facilities, springtime snow pack
run-off, river base flows, spring flows, rainfall and other weather and stream
flow management considerations. Idaho Power also leases water from third
parties to augment stream flows and increase its ability to meet mid-summer
electricity demands with lower-cost hydroelectric generation and to offset the
impact of drought and changing water use patterns in southern Idaho.
When hydroelectric generation is reduced, Idaho Power has
less electricity available for off-system sales and, most likely, will increase
its use of purchased power to meet load requirements, resulting in increased
power supply costs. During good water years, increased off-system sales and
the decreased need for purchased power reduce power supply costs.
Regional energy market prices can also be affected by
hydroelectric generating conditions. In times with high hydroelectric
generation the availability of abundant energy tends to reduce wholesale
prices, and during low hydroelectric generation wholesale prices tend to be
higher.
A combination of increased precipitation, higher reservoir
storage releases and the purchase of leased water resulted in 8.1 million MWh
generated from Idaho Powers hydroelectric facilities in 2009, compared to 6.9
million MWh in 2008 and 6.2 million in 2007. Hydroelectric generation was
99
percent of the 30-year average in 2009. The observed stream flow data released
in August 2009, by the U.S. Army Corps of Engineers, Northwest Division
indicated that Brownlee reservoir inflow for April through July 2009 was 5.6
million acre-feet (maf), compared to 4.4 maf in April-July 2008. Annual
Brownlee reservoir inflow for 2009 was 11.3 maf, or 70 percent of the NWRFC
average compared to 10.1 maf in 2008 and 8.5 maf in 2007. Storage in selected
federal reservoirs upstream of Brownlee as of February 21, 2010, was 118
percent of average. The stream flow forecast released on February 19, 2010, by
the NWRFC predicts that Brownlee reservoir inflow for April through July 2010
will be 2.9 maf, or 46 percent of the NWRFC average.
The following table presents
Idaho Powers energy sales and supply (in MWhs) for the last three years:
32
|
2009 |
2008 |
2007 |
||||
General business sales |
|
13,948 |
|
14,544 |
|
14,542 |
|
Off-system sales |
|
2,836 |
|
2,048 |
|
2,744 |
|
|
Total energy sales |
|
16,784 |
|
16,592 |
|
17,286 |
Hydroelectric generation |
|
8,096 |
|
6,908 |
|
6,181 |
|
Coal generation |
|
6,941 |
|
7,279 |
|
7,145 |
|
Natural gas and other generation |
|
242 |
|
217 |
|
222 |
|
|
Total system generation |
|
15,279 |
|
14,404 |
|
13,548 |
Purchased power |
|
2,912 |
|
3,716 |
|
5,196 |
|
Line losses |
|
(1,407) |
|
(1,528) |
|
(1,458) |
|
|
Total energy supply |
|
16,784 |
|
16,592 |
|
17,286 |
|
|
|
|
|
|
|
Idaho Powers modeled median
annual hydroelectric generation is 8.6 million MWh, based on hydrologic
conditions for the period 1928 through 2009 and adjusted to reflect the current
level of water resource development.
General Business Revenue:
Rate actions have
significantly impacted general business revenue over the last three years. The
following table presents significant rate increases during that period. These
and other rate actions are discussed further in REGULATORY MATTERS and in
Note 3 to the consolidated financial statements.
|
|
Percentage |
Annualized $ |
|
Description |
Effective Date |
Increase |
increase (millions) |
|
2007-2008 PCA |
6/1/2007 |
14.5 |
$ |
78 |
2007 Idaho general rate case |
3/1/2008 |
5.2 |
|
32 |
2008-2009 PCA |
6/1/2008 |
10.7 |
|
73 |
Danskin Plant |
6/1/ 2008 |
1.37 |
|
9 |
2008 Idaho general rate case |
2/1/2009 |
3.1 |
|
21 |
2008 Idaho general rate case |
3/19/2009 |
0.9 |
|
6 |
2009-2010 PCA |
6/1/2009 |
10.2 |
|
84 |
AMI |
6/1/2009 |
1.8 |
|
11 |
|
|
|
|
|
The primary influences on electricity sales volumes are
weather, customer demand and economic conditions. Extreme temperatures
increase sales to customers who use electricity for cooling and heating, and
moderate temperatures decrease sales. Precipitation levels during the
agricultural growing season affect sales to customers who use electricity to
operate irrigation pumps. Increased precipitation reduces electricity usage by
these customers. The following table presents Boise, Idaho weather conditions
for the last three years:
33
The following table presents Idaho Powers general business
revenues, MWh sales and average and year-end number of customers for the last
three years:
|
2009 |
2008 |
2007 |
|||||
Revenue |
|
|
|
|
|
|
||
|
Residential |
$ |
409,479 |
$ |
353,262 |
$ |
308,208 |
|
|
Commercial |
|
232,816 |
|
203,035 |
|
170,001 |
|
|
Industrial |
|
141,530 |
|
122,302 |
|
101,409 |
|
|
Irrigation |
|
109,655 |
|
105,712 |
|
88,685 |
|
|
Deferred revenue related to Hells Canyon relicensing AFUDC |
|
(9,715) |
|
- |
|
- |
|
|
|
Total |
$ |
883,765 |
$ |
784,311 |
$ |
668,303 |
MWh |
|
|
|
|
|
|
||
|
Residential |
|
5,300 |
|
5,297 |
|
5,227 |
|
|
Commercial |
|
3,858 |
|
3,970 |
|
3,937 |
|
|
Industrial |
|
3,140 |
|
3,355 |
|
3,454 |
|
|
Irrigation |
|
1,650 |
|
1,922 |
|
1,924 |
|
|
|
Total |
|
13,948 |
|
14,544 |
|
14,542 |
Customers (average) |
|
|
|
|
|
|
||
|
Residential |
|
405,144 |
|
402,520 |
|
397,285 |
|
|
Commercial |
|
64,151 |
|
63,492 |
|
61,640 |
|
|
Industrial |
|
127 |
|
122 |
|
126 |
|
|
Irrigation |
|
18,753 |
|
18,401 |
|
18,043 |
|
|
|
Total |
|
488,175 |
|
484,535 |
|
477,094 |
Customers (year-end) |
|
|
|
|
|
|
||
|
Residential |
|
406,631 |
|
404,373 |
|
400,637 |
|
|
Commercial |
|
64,349 |
|
64,125 |
|
62,765 |
|
|
Industrial |
|
129 |
|
125 |
|
123 |
|
|
Irrigation |
|
18,818 |
|
18,542 |
|
18,126 |
|
|
|
Total |
|
489,927 |
|
487,165 |
|
481,651 |
|
|
|
|
|
|
|
|
|
2009 vs. 2008:
Rates:
Rate changes positively impacted general business
revenue by $128 million in 2009 as compared to 2008. PCA rate increases
accounted for $79 million of the increases and base rate changes contributed
$49 million. Also, a new tiered rate structure for residential and small
commercial customers was implemented February 1, 2009, as part of the general
rate case. The table below presents the residential rates by tier.
Idaho Residential Rate Structure |
|||||
February 1, 2008 |
Summer |
Non-Summer |
February 1, 2009 |
Summer |
Non-Summer |
0-300 kWh |
5.6973 cents |
5.6973 cents |
0-800 kWh |
5.9750 cents |
5.5792 cents |
Above 300 kWh |
6.4125 cents |
5.6973 cents |
801-2,000 kWh |
7.2798 cents |
6.1991 cents |
|
|
|
Above 2,000 kWh |
8.7358 cents |
7.1290 cents |
Customers: General business revenues increased $10 million due to customer growth of one percent.
Usage:
Changes in usage decreased general business
revenue $38 million. Irrigation usage decreased 14 percent primarily due to
increased precipitation. Commercial and industrial usage also declined due to
a weaker economy and increased energy efficiency. Idaho Power does have in
place the Load Growth Adjustment Rate (LGAR) and FCA mechanisms, both of which
diminish the impact of changes in sales volumes from levels included in base rates.
2008 vs. 2007:
Rates: Rate changes positively impacted general business revenue by $114 million in 2008 as compared to 2007. PCA rate increases accounted for $82 million of the increases and base rate changes contributed $31 million of the increase.
Customers: General business customer growth of two percent increased revenue $8 million.
34
Usage:
Changes in usage, primarily resulting from cooler
summer temperatures, decreased general business revenue $5 million.
Off-system sales:
Off-system sales consist primarily
of long-term sales contracts and opportunity sales of surplus system energy.
The following table presents Idaho Powers off-system sales for the last three
years:
|
2009 |
2008 |
2007 |
|||
Revenue |
$ |
94,373 |
$ |
121,429 |
$ |
154,948 |
MWh sold |
|
2,836 |
|
2,048 |
|
2,744 |
Revenue per MWh |
$ |
33.28 |
$ |
59.29 |
$ |
56.47 |
|
|
|
|
|
|
|
2009 vs. 2008:
Off-system sales revenue declined 22
percent in 2009 due to lower market prices, partially offset by increased
sales. Prices for wholesale power in the Northwest were much lower than in
2008 due to an abundance of energy in the region during the spring and fall and
due to lower energy commodity prices. Improved hydroelectric generating
conditions and lower system load increased the amount of electricity available
for sale.
The off-system sales revenue per MWh is nearly 40 percent
lower than the purchased power cost per MWh. In accordance with Idaho Powers
risk management policy, Idaho Power made forward purchases of energy for
delivery in the third quarter of 2009. Most of the purchases were identified
and made months in advance when market prices were higher. In the third
quarter, reduced demand and improved generating conditions caused regional
energy market prices to drop and Idaho Power to have additional surplus energy
available for sale off-system into that lower price energy market.
2008 vs. 2007:
Off-system sales revenue declined 22
percent in 2008. Sales volumes decreased due to changes to Idaho Powers risk
management policy guidelines implemented in 2008 that resulted in less forward
sales activity. Revenue per MWh increased due to the impact of higher energy
commodity prices through much of 2008.
Other revenues:
The following table presents the
components of other revenues:
|
2009 |
2008 |
2007 |
||||
Transmission services and property rental |
$ |
36,037 |
$ |
31,456 |
$ |
38,663 |
|
Energy efficiency |
|
31,821 |
|
18,880 |
|
13,487 |
|
|
Total |
$ |
67,858 |
$ |
50,336 |
$ |
52,150 |
|
|
|
|
|
|
|
|
2009 vs. 2008 : Other revenues increased $18 million due mainly to the following:
Transmission revenues increased $5 million due primarily to OATT rate refunds ordered by the FERC reducing 2008 revenues. Idaho Power recorded approximately $4 million of refunds related to transmission sales from prior years. The OATT is discussed in more detail in Note 3 to the consolidated financial statements; and
Energy efficiency revenues increased $13 million. These revenues
mirror program expenditures and result in a zero net impact on net income.
Energy efficiency revenues and expenses have steadily increased as program
activity has increased.
2008 vs. 2007 : Other revenues decreased $2 million due mainly to the following:
Transmission revenues decreased $7 million, due primarily to the aforementioned OATT rate refunds and to OATT rate decreases; and
Energy efficiency revenues increased $5 million.
Energy efficiency activities are funded through a rider
mechanism on customer bills. Energy efficiency program expenditures are
reported as an operating expense with an equal amount of revenues recorded in
other revenues, resulting in no net impact on earnings. The cumulative
variance between expenditures and amounts collected through the rider is
recorded as a regulatory asset or liability pending future collection from or
obligation to customers. An asset balance indicates that Idaho Power has spent
more than it has collected and a liability balance indicates that Idaho Power
has collected more than it has spent. At December 31, 2009, Idaho Powers
rider balance was a regulatory asset of $11 million.
35
Purchased power:
The following table presents Idaho
Powers purchased power expenses and volumes:
|
2009 |
2008 |
2007 |
|||
Expense |
$ |
160,569 |
$ |
231,137 |
$ |
289,484 |
MWh purchased |
|
2,912 |
|
3,716 |
|
5,196 |
Cost per MWh purchased |
$ |
55.14 |
$ |
62.20 |
$ |
55.71 |
|
|
|
|
|
|
|
2009 vs. 2008
: Purchased power expense decreased $71
million due to lower system load and more favorable hydroelectric generating
conditions, which decreased the amount of purchased power Idaho Power needed to
serve loads.
2008 vs. 2007
: Purchased power expense decreased $58
million due to improved hydroelectric generation
conditions and more normal weather, which allowed Idaho Power to better utilize
its own generation resources. Despite improved water conditions in the
region, overall market prices remained higher early in the year due to a
gradual spring runoff and a need to re-fill reservoirs. In addition, increases
in energy commodity prices impacted the electricity market.
Fuel expense:
The following table presents Idaho
Powers fuel expenses and generation at its coal and natural gas generating
plants:
|
2009 |
2008 |
2007 |
|||||
Expense |
|
|
|
|
|
|
||
|
Coal |
$ |
130,234 |
$ |
132,015 |
$ |
114,837 |
|
|
Natural gas and other |
|
19,332 |
|
17,388 |
|
19,485 |
|
|
|
Total fuel expense |
$ |
149,566 |
$ |
149,403 |
$ |
134,322 |
MWh generated |
|
|
|
|
|
|
||
|
Coal |
|
6,941 |
|
7,279 |
|
7,145 |
|
|
Natural gas and other |
|
242 |
|
217 |
|
222 |
|
|
|
Total MWh generated |
|
7,183 |
|
7,496 |
|
7,367 |
Cost per MWh |
|
|
|
|
|
|
||
|
Coal |
$ |
18.76 |
$ |
18.14 |
$ |
16.07 |
|
|
Natural gas |
$ |
79.88 |
$ |
80.13 |
$ |
87.77 |
|
|
Weighted average, all sources |
$ |
20.82 |
$ |
19.93 |
$ |
18.23 |
|
|
|
|
|
|
|
|
2009 vs. 2008
: Fuel expense remained nearly the same
due to offsetting variances. The decrease in generation is due to lower system
loads and lower wholesale energy prices, which resulted in reduced dispatch due
to economics, and an unplanned mid-year maintenance outage at Boardman. Coal
prices were higher in 2009 due to an increase in operating costs at Bridger
Coal Company, which supplies coal to the Jim Bridger plant, as well as higher
prices for coal delivered to the Boardman plant.
2008 vs. 2007:
Fuel expense increased $15 million
due to higher coal prices at the Valmy and Jim Bridger plants. Coal prices at
Valmy increased 13 percent due to higher transportation costs. Production
costs at Bridger Coal Company were 13 percent higher due to difficulties with
its underground longwall mining operation in January and February, the
continued transition to underground mining operations, and rising prices for
fuel and other commodities. The increases were partially offset by a nine
percent reduction in fuel expense at Idaho Powers natural gas fired plants,
which had favorable market conditions in the fourth quarter due to pipeline
transportation constraints in the region.
PCA:
PCA expense represents the effects of the Idaho
and Oregon power supply costs deferral mechanisms, which are discussed in more
detail below in REGULATORY MATTERS Power Supply Cost Deferrals. In each
year presented, net power supply costs were higher than the amounts estimated
in the annual PCA forecast, resulting in the deferral of costs for recovery in
subsequent rate years. As the deferred costs are recovered in rates, the
deferred balances are amortized.
36
The following table presents the components of the PCA:
|
2009 |
2008 |
2007 |
||||
Idaho power supply cost deferral |
$ |
(42,533) |
$ |
(108,688) |
$ |
(118,850) |
|
Oregon power supply cost deferral |
|
184 |
|
(5,196) |
|
(1,994) |
|
Oregon 2007 excess power cost order |
|
(6,358) |
|
- |
|
- |
|
Amortization of prior year authorized balances |
|
115,417 |
|
66,471 |
|
(287) |
|
|
Total power cost adjustment |
$ |
66,710 |
$ |
(47,413) |
$ |
(121,131) |
|
|
|
|
|
|
|
|
2009 vs. 2008
: The $114 million change in the PCA is
due primarily to lower deferral of power supply costs and higher amortization
of previously deferred power supply costs. In addition, an order from the OPUC
that allows Idaho Power to defer for future recovery $6 million of costs
incurred in 2007 was recorded in May 2009.
2008 vs. 2007
: The $74 million change in 2008 PCA
expense is due primarily to higher amortization from prior year excess net
power supply costs to match increased revenues.
Other operations and maintenance (O&M) expenses:
2009 vs. 2008
: Other O&M expenses increased $6 million due
primarily to an $8 million increase in labor related charges and a $2 million
increase in charges for uncollectible accounts, partially offset by decreases
of $4 million in legal, other contracted services and office supplies due to
cost containment measures.
The deterioration of the economy across Idaho Powers
service area led to an increase in uncollectible accounts to approximately $5
million representing approximately a half percent of general business revenues
for 2009. The reserve for uncollectible accounts has also increased over 2008
levels most notably the residential and commercial reserves.
2008 vs. 2007
: Other O&M expenses increased $8
million due mainly to an $11 million increase in labor related charges, a $2
million increase due to new water leases, a $2 million increase in uncollectible
accounts due to economic conditions, and an increase of $4 million for workers
compensation, legal and other outside services. The increases were partially
offset by a $6 million decrease in FCA charges, a $3 million decrease in
transmission costs due to lower purchased power volumes and lower thermal
O&M expense of $4 million due to lower annual outage costs.
Energy efficiency:
Energy efficiency activities are
funded through a rider mechanism on customer bills. Energy efficiency program
expenditures are reported as an operating expense with an equal amount of
revenues recorded in other revenues, resulting in no net impact on earnings.
Energy efficiency expenses were $32 million, $19 million and $14 million in
2009, 2008 and 2007, respectively.
Gain on the sale of emission allowances:
Gain on
sale of emission allowances was $0.3 million, $0.5 million and $3 million in
2009, 2008 and 2007, respectively. The bulk of Idaho Powers accumulated
excess emission allowances were sold from 2005 to 2007.
Non-utility Operations
IFS:
IFS contributed $1 million, $3 million and $7
million to net income in 2009, 2008 and 2007, respectively; principally from
the generation of federal income tax credits and accelerated tax depreciation
benefits related to its investments in affordable housing and historic
rehabilitation developments.
IFS made $14 million in new investments in 2009 and $8
million in 2008. IFS generated tax credits of $8 million, $11 million and $15
million during 2009, 2008 and 2007, respectively. IFS will continue to pursue
new opportunities for investment commensurate with the ongoing needs of
IDACORP.
Ida-West:
Ida-West had net income of $3 million in
2009 and $2 million in 2008 and 2007. Ida-West continues to hold joint venture
investments in independent power projects.
37
Energy Marketing:
In 2003, IE wound down its power
marketing operations, closed its business locations and sold its forward book
of electricity trading contracts to Sempra Energy Trading. In 2007, all
trading contracts expired. IE has not recorded any material net income for the
years presented. Currently, IE has no operations but has been working to
settle outstanding legal matters surrounding transactions in the California
energy markets in 2000 and 2001.
Discontinued Operations
: Discontinued operations
presents the results of operations of IDACOMM, Inc. prior to its sale in early
2007.
Income Taxes
Idaho Power is currently evaluating a tax accounting method change that
would allow a current income tax deduction for repair related expenditures on
its utility assets that are currently capitalized for book and tax purposes.
The deduction would be computed for tax years 1999 and forward. Idaho Power
has the ability to apply for this method change following the automatic consent
procedures and could make such application with the filing of IDACORPs 2009
consolidated federal income tax return in September 2010. Idaho Powers
prescribed regulatory accounting treatment requires immediate income
recognition for temporary tax differences of this type. A regulatory asset is
established to reflect Idaho Powers ability to recover increased income tax
expense when such temporary differences reverse.
Status of audit proceedings:
In December 2008, the IRS began its examination of IDACORPs 2006 tax
year. The 2006 exam was completed in May 2009. The IRS began its examination
of IDACORPs 2007-2008 tax years in July 2009 and completed the exam in
December. The 2006 examination report was submitted to the U.S. Congress Joint
Committee on Taxation (JCT) for review in June 2009 and was accepted without
change in July. Tax years 2007-2008 did not require JCT review. The
settlement of these years resulted in a net income tax benefit of $4 million
for 2009 at both IDACORP and Idaho Power.
In May 2009, IDACORP formally
entered the IRS Compliance Assurance Process (CAP) program for its 2009 tax
year. The CAP program provides for IRS examination throughout the year. The
2009 examination is expected to be completed in 2010. In January 2010, IDACORP
was accepted into CAP for its 2010 tax year. IDACORP and Idaho Power are
unable to predict the outcome of these examinations.
Specifically within the 2009 CAP examination, the IRS began
its audit of Idaho Powers current method of uniform capitalization. In
September 2009, the IRS issued Industry Director Directive #5 (IDD) which
discusses the IRSs compliance priorities and audit techniques related to the
allocation of mixed service costs in the uniform capitalization methods of
electric utilities. The IRS and Idaho Power are jointly evaluating the impact
the IDD guidance has on Idaho Powers uniform capitalization method. Idaho
Power expects that the examination will be completed during 2010.
LIQUIDITY AND CAPITAL RESOURCES:
Operating Cash Flows
IDACORPs operating cash flows are driven principally by
Idaho Power. General business revenues and the costs to supply power to
general business customers are factors that have the greatest impact on Idaho
Powers operating cash flows, and are subject to risks and uncertainties
relating to weather and water conditions and Idaho Powers ability to obtain
rate relief to cover its operating costs and provide a return on investment.
IDACORPs and Idaho Powers operating cash inflows for the
year ended December 31, 2009, were $284 million and $272 million,
respectively. These amounts were an increase of $148 million and $153 million,
respectively, compared to the year ended December 31, 2008. The following are
significant items that affected operating cash flows in 2009:
In 2009, PCA rates more closely matched actual net power supply costs than in 2008. This more timely recovery of current costs improved cash flows by approximately $65 million compared to 2008. In addition, the collection of deferred net power supply costs increased $49 million compared to 2008.
Changes in net cash paid and refunded for income taxes improve cash flows by $42 million and $50 million at IDACORP and Idaho Power, respectively, primarily due to audit settlements.
38
A refund of $13 million was made to Idaho Powers transmission customers upon a final order from the FERC on Idaho Powers OATT. The OATT is discussed further in Note 3 to the consolidated financial statements.
Net income increased by approximately $26 million and $28 million
at IDACORP and Idaho Power, respectively, compared to 2008.
IDACORPs and Idaho
Powers operating cash flows for the year ended December 31, 2008 were $137
million and $120 million, respectively. These amounts were an increase of $56
million and $38 million, respectively, compared to the year ended December 31,
2007. The following are significant items that affected operating cash flows
in 2008:
Collection of previously deferred net power supply costs increased $66 million compared to 2007.
Income tax payments increased $17 million and $33 million for IDACORP and Idaho Power, respectively, due to the timing of and increases in taxable income.
Investing Cash Flows
Idaho Powers construction expenditures were $252 million,
$244 million and $287 million in 2009, 2008 and 2007, respectively. Idaho
Power is experiencing a cycle of heavy infrastructure investment needed to
address customer growth, peak demand growth, and aging plant and equipment.
Net proceeds from the sales of emission allowances provided
investing cash of approximately $2 million, $3 million and $20 million in 2009,
2008 and 2007, respectively. The changes were primarily caused by changes in
the number of allowances sold each year as well as changes in market prices.
In August 2007, Idaho Power
reimbursed IDACORP for the $44 million refundable tax deposit IDACORP made on
Idaho Powers behalf with the IRS related to a disputed income tax assessment.
In May 2008, Idaho Power withdrew $20 million from the deposit and in December
2008 the remainder of the deposit was applied to accrued taxes and interest.
Income tax matters are discussed further in Note 2 to the consolidated
financial statements.
In 2009 and 2008, Idaho Power had cash inflows of $2 million
and $5.7 million, respectively, from the sale of Southwest Intertie Project
rights-of-way. IDACORP made cash investments in affordable housing through IFS
of $6 million and $8 million in 2009 and 2008, respectively. In 2009, IFS
received $9 million from the sale of investments.
Financing Cash Flows
Debt:
On December 1, 2009, Idaho Power repaid $80
million of its 7.2% First Mortgage Bonds. On November 20, 2009, Idaho Power
issued $130 million of its 4.5% First Mortgage Bonds, Secured Medium Term
Notes, Series H, due March 1, 2020. On August 20, 2009, Idaho Power completed
the remarketing of its $166.1 million Pollution Control Revenue Refunding Bonds
and on August 25, 2009, Idaho Power used the proceeds from the remarketed bonds
plus other funds to prepay its $170 million Term Loan Credit Agreement. The
Pollution Control Revenue Refunding Bonds and Term Loan Credit Agreement are
discussed further in Note 4 to the consolidated financial statements. On March
30, 2009, Idaho Power issued $100 million of its 6.15% First Mortgage Bonds,
Secured Medium-Term Notes, Series H, due April 1, 2019. On February 27, 2009,
IFS repaid $7 million of its outstanding debt. IDACORP and Idaho Power reduced
short-term debt by $94 million and $109 million, respectively.
On July 10, 2008, Idaho Power issued $120 million of its
6.025% First Mortgage Bonds, Secured Medium-Term Notes, Series H, due July 15,
2018. On October 18, 2007, Idaho Power issued $100 million of 6.25% First
Mortgage Bonds, Secured Medium-Term Notes, Series G, due October 15, 2037. On
June 22, 2007, Idaho Power issued $140 million of 6.30% First Mortgage Bonds,
Secured Medium-Term Notes, Series F, due June 15, 2037. These issuances were
used to retire short-term and long-term debt and finance capital expenditures.
39
Equity:
IDACORP has entered into Sales Agency
Agreements as a means of selling its common stock from time to time in
at-the-market offerings. Under these agreements IDACORP sold 881,337 shares in
2007 at an average price of $32.32. In 2008, IDACORP sold 1,453,967 shares an
average price of $28.72. In 2009, IDACORP received $14 million, net of agents
fees, from the issuance of 489,360 shares. The average price of the shares
sold was $28.79. IDACORPs current Sales Agency Agreement is with BNY Mellon
Capital Markets, LLC. As of December 31, 2009, there were 2.1 million shares
remaining on the current agency agreement.
IDACORP uses original issue common stock for its Dividend Reinvestment and
Stock Purchase Plan and 401(k) plan for the purpose of adding additional common
equity to its capital structure. Under these plans, IDACORP issued 366,673
shares in 2009, 280,250 shares in 2008 and 250,020 shares in 2007, for proceeds
of $9.6 million, $8.4 million and $8.4 million, respectively.
IDACORP issued 25,800 shares in 2009, 30,700 shares in 2008
and 10,070 shares in 2007, in connection with the exercise of stock options,
for proceeds of $0.6 million, $0.9 million and $0.3 million, respectively.
IDACORP and Idaho Power paid dividends of $57 million, $54
million and $53 million in 2009, 2008 and 2007, respectively. IDACORP made
capital contributions of $20 million, $37 million and $51 million to Idaho
Power in 2009, 2008 and 2007, respectively.
Financing Programs
IDACORPs consolidated capital structure consisted of common
equity of 49 percent and debt of 51 percent at December 31, 2009. Idaho
Powers consolidated capital structure consisted of common equity of 47 percent
and debt of 53 percent at December 31, 2009.
Shelf Registrations
: IDACORP currently has
approximately $574 million remaining on its shelf registration statement that
can be used for the issuance of debt securities and common stock. Effective
with the November 20, 2009, issuance noted above, Idaho Power has no securities
remaining registered on its shelf registration statement. Idaho Power intends
to file a new shelf registration statement that can be used for the issuance of
first mortgage bonds and unsecured debt. Please see Note 4 to IDACORPs and
Idaho Powers consolidated financial statements for more information regarding
long-term financing arrangements.
Credit Facilities:
IDACORP and Idaho Power each have
a five-year credit agreement that terminates on April 25, 2012, which is used
for general corporate purposes and commercial paper back-up and provides for
the issuance of loans and standby letters of credit. IDACORPs facility
permits borrowings of up to $100 million at any one time outstanding, which may
be increased upon request to $150 million. Idaho Powers facility permits
borrowings of up to $300 million at any one time outstanding, which may be
increased upon request to $450 million. Each company may request one-year
extensions of the then existing termination date. Interest on borrowings under
the facilities is a Eurodollar rate or a floating rate, plus a margin
determined by the companys ratings on its senior unsecured long-term debt
securities. The companies also pay a utilization fee and a facility fee.
Each facility contains a covenant requiring a leverage ratio
of consolidated indebtedness to consolidated total capitalization of no more
than 65 percent as of the end of each fiscal quarter. At December 31, 2009,
the leverage ratio for IDACORP was 51 percent and for Idaho Power was 53
percent. There are additional covenants, subject to exceptions, that prohibit
or restrict: certain investments or acquisitions; mergers or sale or
disposition of property without consent; the creation of certain liens; and any
agreements restricting dividend payments to the company from any material
subsidiary. At December 31, 2009, IDACORP and Idaho Power were in compliance
with all facility covenants.
The events of default under the facilities include: nonpayment
of principal, interest and fees, when due or subject to a grace period;
materially false representations or warranties; breach of covenants, subject in
some instances to grace periods; bankruptcy or insolvency-related events;
default in the payment of indebtedness in excess of $25 million, defaults that
will permit acceleration of such debt, or the acceleration of any of such debt;
the acquisition of 20 percent of the outstanding voting shares of the company;
the failure of IDACORP to own all of the outstanding voting stock of Idaho
Power; unfunded liabilities of all single employer plans under the Employee
Retirement Income Security Act of 1974 (ERISA) exceeding $75 million; and
environmental proceedings, investigations or violations of law, which could
reasonably be expected to have a material adverse effect.
40
The facilities were amended effective February 2, 2010 at
the request of IDACORP and Idaho Power because of their concern about
continuing compliance with the unfunded liability provisions. The amendments
removed representations and default provisions relating to unfunded liabilities
of all single employer plans in excess of $75 million and replaced them with
representations and default provisions relating to meeting the minimum funding
standards and not requesting a funding waiver under the Internal Revenue Code
or ERISA. Unfunded liabilities will now be relevant and measured only upon
notice of termination of a plan and will then constitute a default only if they
exceed $75 million.
A default or an acceleration of indebtedness of IDACORP or
Idaho Power in excess of $25 million, including indebtedness under the
applicable facility, will result in a cross default under the other facility.
Upon any bankruptcy or insolvency-related event of default, the obligations of
the lenders to make loans under the facility will automatically terminate and
all unpaid obligations will become due and payable. Upon any other event of
default, the lenders holding 51 percent of the outstanding loans or of the aggregate
commitments may terminate or suspend the obligations to make loans or declare
the obligations to be due and payable.
A ratings downgrade would result in an increase in the cost
of borrowing, but would not result in a default or acceleration of the debt
under the facilities. If Idaho Powers ratings are downgraded below investment
grade, Idaho Power must extend or renew its authority for borrowings under its
IPUC and OPUC regulatory orders. The IPUC order provides that Idaho Powers
authority will continue for 364 days from such downgrade, if Idaho Power
promptly notifies the IPUC and files to continue its original authority to
borrow. The Oregon statutes permit the issuance of short-term debt without
approval of the OPUC.
Without additional approval from the IPUC, the OPUC and the
Public Service Commission of Wyoming, the aggregate amount of short-term
borrowings by Idaho Power at any one time outstanding may not exceed $450
million.
The following table outlines available liquidity as of
December 31, 2009 and 2008.
At February 19, 2010, IDACORP had no loans and $25 million
of commercial paper outstanding and Idaho Power had no loans and no commercial
paper outstanding.
Certain of Idaho Powers derivative instruments contain
provisions that require Idaho Powers unsecured debt to maintain an investment
grade credit rating from each of the major credit rating agencies. If Idaho
Powers unsecured debt were to fall below investment grade, it would be in
violation of these provisions, and the counterparties to the derivative
instruments could request immediate payment or demand immediate and ongoing
full daily collateralization on derivative instruments in net liability
positions. Credit-contingent features are also discussed in Note 15 to the
consolidated financial statements.
Credit Ratings
Access to capital markets at a
reasonable cost is determined in large part by credit quality. The following
table outlines the current S&P, Moodys and Fitch Ratings, Inc. (Fitch)
ratings of IDACORPs and Idaho Powers securities:
41
These security ratings reflect the views of the rating
agencies. An explanation of the significance of these ratings may be obtained
from each rating agency. Such ratings are not a recommendation to buy, sell or
hold securities. Any rating can be revised upward or downward or withdrawn at
any time by a rating agency if it decides that the circumstances warrant the
change. Each rating should be evaluated independently of any other rating.
Capital Requirements
Idaho Power is experiencing a cycle of heavy infrastructure
investment, adding capacity to its baseload generation, transmission system and
distribution facilities to ensure adequate supply of electricity, to provide
service to new customers and to maintain system reliability. Idaho Powers
aging hydroelectric and thermal generation facilities require continuing
upgrades and component replacement, and the costs related to relicensing
hydroelectric facilities and complying with the new licenses are substantial.
Due to the heavy infrastructure requirements from 2010-2012, Idaho Power will
continue to focus on critical infrastructure needs that relate to system
reliability and resource adequacy and has reduced ongoing capital expenditures
and major projects from prior estimates. The table below presents the low and
high ranges of the capital expenditure categories. Idaho Power expects that
total capital expenditures will be at or slightly above $1 billion from
2010-2012. Internal cash generation after dividends is expected to provide
less than the full amount of total capital requirements for 2010 through 2012.
While IDACORP and Idaho Power expect minimal need for external financing in
2010, except for issuances under the dividend reinvestment and employee-related
plans, and potential pre-funding of 2011 debt maturities should IDACORP and
Idaho Power decide to access the capital markets, IDACORP has access to its
registered securities including its Continuous Equity Program (CEP) which has
approximately 2.1 million shares of common stock available and Idaho Power
intends to file a new shelf registration statement that can be used for the
issuance of first mortgage bonds and unsecured debt. IDACORP and Idaho Power
expect to continue financing capital requirements with a combination of
internally generated funds and externally financed capital.
The following table presents Idaho Powers estimated cash
requirements for construction, excluding AFUDC, for 2010 through 2012 (in
millions of dollars):
|
2010 |
2011-2012 |
|||
Ongoing capital expenditures |
$ |
155-160 |
$ |
352-380 |
|
Advanced Metering Infrastructure (AMI) |
|
23-25 |
|
23-25 |
|
Langley Gulch Power Plant (detailed below) |
|
138-140 |
|
175-180 |
|
Other major projects |
|
39-40 |
|
90-95 |
|
|
Total |
$ |
355-365 |
$ |
640-680 |
|
|
|
|
|
|
Major Projects:
AMI:
The AMI project provides the means to
automatically retrieve energy consumption information, eliminating manual meter
reading expense. Idaho Power intends to install this technology for
approximately 99 percent of its customers and is on pace to complete the
installations by the end of 2011. The total cost estimates for the project are
approximately $74 million. Idaho Power has expended approximately $24 million
of the total costs as of December 31, 2009. The remaining costs are included
in the table above.
Langley Gulch Power Plant:
On September 1, 2009, the
IPUC issued an order granting Idaho Powers March 6, 2009, request for a CPCN
authorizing Idaho Power to construct, own and operate the Langley Gulch power
plant. Langley Gulch will be a natural gas-fired CCCT generating plant with a
summer nameplate capacity of approximately 300 MWs and a winter capacity of
approximately 330 MWs. The plant will be constructed near New Plymouth, Idaho,
commencing in summer 2010, and is anticipated to achieve commercial operation
by November 1, 2012. Contract incentives may advance the commercial operation
date to July 1, 2012. The total cost estimate for the project including AFUDC
is $427 million, $54 million of which Idaho Power incurred as of December 31,
2009. The remaining costs are included in the table above. The plant will
connect to Idaho Powers existing grid.
42
Idaho Power requested in its application that the IPUC
provide Idaho Power with assurances of future ratemaking treatment for
construction costs up to Idaho Powers cost estimate. In the order, the IPUC
found that Idaho Power had satisfied statutory requirements that would entitle
Idaho Power to receive such ratemaking assurances. The order grants Idaho
Power assurance and pre-approval to include $396.6 million of construction
costs in Idaho Powers rate base when Langley Gulch achieves commercial
operation. The order contemplates that Idaho Power may request recovery of
additional costs if they exceed $396.6 million provided that Idaho Power is
able to demonstrate that the additional costs were reasonably and prudently
incurred.
Idaho Power is responsible for specific portions of the
Langley Gulch Project, which include permitting the site under the Payette
County planning and zoning ordinance, design and construction of the cooling
water pump station and pipeline from the Snake River to the site, design and
construction of the gas pipeline from the Williams Northwest Pipeline to the
site, and design and construction of the new electric transmission lines to the
existing grid. The cost of these activities are included in the $427 million
estimated total cost for Langley Gulch.
Other Major Projects:
Hemingway Station:
Construction is underway for the
new 500-kV Hemingway station, located near Boise, Idaho. This station will
relieve capacity and operating constraints to ensure reliable service to Idaho
Powers network and native load customers. The station was originally part of
the Gateway West Project, but construction was accelerated to help meet
forecast deficits and improve reliability. The station is expected to be in
service by summer 2010 at a total cost of approximately $57 million. The 2010
cost estimate for the project, including substation interconnections, is $20
million and is included in the above table.
Hemingway-Bowmont Transmission Line:
A part of the
Hemingway Station Project, the Hemingway-Bowmont transmission line, currently
under construction, is 12 miles of new 230-kV double circuit transmission line
that will provide power to the Treasure Valley in southwest Idaho. The project
is scheduled to be in service by summer 2010 at a total cost of approximately
$16 million. The 2010 cost estimate for the project is $6.5 million and is
included in the above table.
Boardman-Hemingway Line:
The Boardman-Hemingway Line
is a proposed 500-kV transmission project between a substation near Boardman,
Oregon and the Hemingway station. This line will provide transmission service
for existing network and native load customers and other requests pursuant to
Idaho Powers OATT, and will improve reliability and relieve existing
congestion. The line will allow for the transfer of up to 1,500 MW of
additional energy between Idaho and the Northwest, depending on the outcome of
WECC rating studies to determine project capacity limits. On March 9, 2009,
Idaho Power initiated a community advisory project to engage the public in
route selection alternatives. Idaho Powers preferred route selection will be
processed in compliance with the National Environmental Policy Act and Oregon
Energy Facility Siting Council requirements. The initial phase of the project,
estimated at $50 million, will be funded primarily by Idaho Power and includes
the engineering, environmental review, permitting and rights-of-way. Cost
estimates for the 2010-2012 timeframe of the initial phase are included in the
table above. Total cost estimates for the project (including initial phase
project estimate and construction costs of the line) are approximately $600
million. Idaho Power expects its share of the project to be between 30 and 50
percent, to meet needs identified in the 2009 IRP and forecast growth of
network customers. Idaho Power and PacifiCorp are exploring potential joint
development and ownership opportunities regarding the Boardman-Hemingway
project. The Bonneville Power Administration is also currently investigating whether
participation in project may be feasible. This project is expected to be
completed in 2015 subject to siting, permitting and regulatory approvals.
Construction costs beyond the initial phase are not included in Idaho Powers
2010 to 2012 forecast.
Gateway West Project:
Idaho Power and PacifiCorp are
jointly exploring the Gateway West project to build transmission lines between
Windstar, a substation located near Douglas, Wyoming and the Hemingway
station. This project will provide transmission service for existing network
and native load customers, forecasted growth and requests pursuant to Idaho
Powers OATT transmission obligations. The project is expected to improve
reliability and relieve existing congestion. Idaho Power and PacifiCorp have a
cost sharing agreement for expenses incurred for analysis work of the initial
phases.
43
Idaho Powers share of the initial phase of engineering,
environmental review, permitting and rights-of-way is approximately $40 million
and cost estimates for the 2010-2012 timeframe of the initial phase are
included in the above table. Construction costs are not included in Idaho
Powers 2010 to 2012 forecast. Initial phases of the project could be
completed by 2014 depending on the timing of rights-of-way acquisition, siting
and permitting, and construction sequencing. Idaho Powers share will vary by
segment across the project and the current estimated cost for its share is between
$300 million and $500 million. However, based on the 2009 IRP and the
withdrawal of some third-party transmission service requests, Idaho Powers
share may change and the timing of the projects segments may be deferred and
constructed as demand requires. The Bureau of Land Management has indicated
the draft environmental impact statement is expected to be issued during the
summer of 2010.
For a discussion of environmental considerations relating to
the above projects, see ENVIRONMENTAL ISSUES Endangered Species.
Hydroelectric projects:
In the table above
Idaho Power has included costs relating to the relicensing of hydroelectric
facilities and complying with the renewed licenses. These costs total
approximately $25 million for the three year period. An additional $12 million
relating to future hydroelectric projects is also included in the table.
Environmental Regulation Costs
:
Idaho
Power anticipates approximately $42 million in annual capital and operating
costs for environmental facilities during 2010. Hydroelectric facility
expenses including costs for relicensing Hells Canyon and thermal plant
expenses account for approximately $22 million and $20 million, respectively.
From 2011 through 2012, total environmental related operating and capital costs
are estimated to be approximately $122 million. Expenses related to the
hydroelectric facilities are expected to be $62 million and include costs
associated with the relicensing of Hells Canyon. Thermal plant expenses are
expected to total $60 million during this period. These amounts are included
in the table above but do not include costs related to possible changes in the
environmental laws or regulations and enforcement policies that may be enacted
in response to issues such as climate change and other pollutant emissions from
coal-fired generation plants.
Other capital requirements:
IDACORPs non-regulated
capital expenditures are expected to be $7 million in 2010 and primarily relate
to IFSs tax-structured investments. Currently there are no expenditures
anticipated for 2011 or 2012.
American Recovery and Reinvestment Act of 2009
Under the ARRA, Idaho Power submitted a grant application to
the Department of Energy (DOE) in August 2009, requesting $47 million. This
grant would match a $47 million investment by Idaho Power in Smart Grid
technology as well as other incremental projects. In October 2009, Idaho Power
received notice that its application was selected for negotiation.
Negotiations with the DOE on the grant agreement terms are expected to be
complete in the first quarter of 2010.
Off-Balance Sheet Arrangements
Idaho Power has agreed to guarantee the performance of
reclamation activities at Bridger Coal Company of which IERCo owns a one-third
interest. This guarantee, which is renewed each December, was $63 million at
December 31, 2009. Bridger Coal Company has a reclamation trust fund set aside
specifically for the purpose of paying these reclamation costs. At this time
Bridger Coal Company is revising their estimate of future reclamation costs.
To ensure that the reclamation trust fund maintains adequate reserves, Bridger
Coal Company has the ability to add a per ton surcharge if it is determined
that future liabilities exceed the trusts assets. Because of the existence of
the fund and the ability to apply a per ton surcharge, the estimated fair value
of this guarantee is minimal.
44
Contractual Obligations
The following table presents IDACORPs and Idaho Powers
contractual cash obligations for the respective periods in which they are due:
|
Payment Due by Period |
|||||||||||
|
Total |
2010 |
2011-2012 |
2013-2014 |
Thereafter |
|||||||
|
(millions of dollars) |
|||||||||||
Idaho Power: |
|
|
|
|
|
|
|
|
|
|
||
Long-term debt (1) |
$ |
1,414 |
$ |
1 |
$ |
222 |
$ |
72 |
$ |
1,119 |
||
Future interest payments (2) |
|
1,256 |
|
77 |
|
146 |
|
129 |
|
904 |
||
Operating leases |
|
15 |
|
3 |
|
3 |
|
3 |
|
6 |
||
Purchase obligations: |
|
|
|
|
|
|
|
|
|
|
||
|
Cogeneration and small power |
|
|
|
|
|
|
|
|
|
|
|
|
|
production |
|
2,214 |
|
83 |
|
222 |
|
229 |
|
1,680 |
|
Large power production (3) |
|
260 |
|
128 |
|
132 |
|
- |
|
- |
|
|
Fuel supply agreements |
|
383 |
|
64 |
|
117 |
|
107 |
|
95 |
|
|
Purchased power & transmission (4) |
|
89 |
|
44 |
|
31 |
|
6 |
|
8 |
|
|
Other (5) |
|
149 |
|
65 |
|
36 |
|
21 |
|
27 |
|
|
|
Total purchase obligations |
|
5,780 |
|
465 |
|
909 |
|
567 |
|
3,839 |
Pension and postretirement plans (6) |
|
256 |
|
13 |
|
106 |
|
95 |
|
42 |
||
Other long-term liabilities - Idaho Power |
|
4 |
|
3 |
|
1 |
|
- |
|
- |
||
|
Total Idaho Power |
|
6,040 |
|
481 |
|
1,016 |
|
662 |
|
3,881 |
|
Other: |
|
|
|
|
|
|
|
|
|
|
||
Long-term debt (1)(7) |
|
9 |
|
8 |
|
- |
|
- |
|
1 |
||
|
Total IDACORP |
$ |
6,049 |
$ |
489 |
$ |
1,016 |
$ |
662 |
$ |
3,882 |
|
(1) For additional information, see Note 4 to IDACORPs and Idaho Powers Consolidated Financial Statements. |
||||||||||||
(2) Future interest payments are calculated based on the assumption that all debt is outstanding until maturity. For debt instruments with variable rates, interest is calculated for all future periods using the rates in effect at December 31, 2009. |
||||||||||||
(3) Large power production relates to the Langley Gulch power plant and includes two contracts with Siemens Energy, Inc. relating to the purchase of a gas turbine and the purchase of a steam turbine and an Engineering, Procurement and Construction Services Agreement with Boise Power Partners Joint Venture, a joint venture consisting of Kiewit Power Engineers Co. and TIC-The Industrial Company, for design, engineering, procurement, construction management and construction services for Langley Gulch. |
||||||||||||
(4) Approximately $21 million of the obligations included in purchased power and transmission have contracts that do not specify terms related to expiration. As these contracts are presumed to continue indefinitely, 10 years of information estimated based on current contract terms, have been included in the table for presentation purposes. |
||||||||||||
(5) Approximately $51 million of the amounts in other purchase obligations are contracts that do not specify terms related to expiration. As these contracts are presumed to continue indefinitely, 10 years of information, estimated based on current contract terms, have been included in the table for presentation purposes. |
||||||||||||
(6) Idaho Power estimates pension contributions based on actuarial data. Idaho Power cannot estimate pension contributions beyond 2014 at this time. For more information on pension, please refer to Note 11 of IDACORPs and Idaho Powers Consolidated Financial Statements. |
||||||||||||
(7) Amounts include the obligations of IDACORPs subsidiaries other than Idaho Power, which is shown separately. |
||||||||||||
|
REGULATORY MATTERS:
Rate changes and regulatory decisions have a significant
impact on results of operations and cash flows. This section discusses several
important rate matters that have affected results during the past two years, as
well as significant pending regulatory issues. Regulatory matters and the
financial impact of rate decisions are also discussed in Note 3 to the
consolidated financial statements.
45
Idaho Power has continued to focus on timely recovery of its
costs through filings with the IPUC and OPUC. The table below summarizes the
most significant base rate changes during the last two years.
|
|
Annualized |
|
|
|
Effective |
$ Impact |
|
|
Description |
Date |
(millions) |
Notes |
|
Base rate increases |
|
|
|
|
Idaho |
|
|
|
|
2007 general rate case |
3/1/2008 |
$ |
32.1 |
No rates of return were specified in the settlement |
Danskin power plant |
6/1/2008 |
|
8.9 |
Adds $64.2 million to rate base for this project |
2008 general rate case |
2/1/2009 3/19/2009 |
|
20.9 6.1 |
Provides a return on equity of 10.5 percent and overall rate of return of 8.18 percent. Approximately $15 million related to increases in base net power supply costs. Allowed Idaho Power to include in rates approximately $10.6 million relating to AFUDC on the Hells Canyon Complex relicensing project. |
AMI |
6/1/2009 |
|
10.5 |
Order is based on Idaho Powers projected investment in AMI through December 31, 2009. Allowed Idaho Power to begin three-year accelerated depreciation of existing metering equipment on June 1, 2009. The associated increase in annualized depreciation expense is $9.2 million. |
Oregon |
|
|
|
|
2008 annual power cost update |
6/1/2008 |
|
4.8 |
Represents a 15.7 percent increase in Oregon rates. |
Depreciation filing |
1/1/2009 |
|
(0.4) |
|
AMI |
6/1/2009 |
|
0.8 |
Authorizes accelerated depreciation and recovery of existing meters in the Oregon jurisdiction over an 18-month period beginning January 2009. The associated increase in annual depreciation expense is $0.8 million |
2009 annual power cost update |
6/1/2009 |
|
3.9 |
Represents an 11.5 percent increase in Oregon rates. |
|
|
|
|
|
2009 Idaho Settlement Agreement
On January 13, 2010, the IPUC approved a settlement
agreement among Idaho Power, several of Idaho Powers customers, the IPUC staff
and others. Significant elements of the settlement agreement include:
A general rate moratorium in effect until January 1, 2012. The moratorium does not apply to other specified revenue requirement proceedings, such as the PCA, the FCA, pension funding, AMI, energy efficiency rider, and government imposed fees.
A specified distribution of the expected 2010 PCA. This distribution is intended to reduce customer rates, provide some general rate relief to Idaho Power and reset base power supply costs for the PCA. The associated rate change is expected to become effective June 1, 2010. This provision is in anticipation of a significant reduction in PCA rates for the 2010-2011 PCA year. The PCA reduction will be allocated as follows:
o The first $40 million will be allocated equally between customers and Idaho Power. Idaho Powers share would be applied to increase permanent base rates on a uniform percentage basis to all customer classes and contract customers. The customers share would be a direct PCA rate reduction.
o All of the next $20 million will be allocated to customers as a direct PCA rate reduction.
o PCA reductions in excess of $60 million will be applied to absorb any increase in the base level of net power supply expenses.
o If the PCA reduction exceeds $60 million plus the increase in base net power supply expenses, the next $10 million will be allocated equally between Idaho Power and customers.
o Any remainder will go entirely to customers.
A provision to share earnings with customers if Idaho Powers actual rate of return on equity is more than 10.5 percent in any calendar year from 2009 to 2011 in its Idaho jurisdiction. Idaho Power will share with Idaho customers 50 percent of any returns in excess of 10.5 percent.
46
A provision to allow the accelerated amortization of accumulated deferred investment tax credits (ADITC) if Idaho Powers actual rate of return on equity is below 9.5 percent in any calendar year from 2009 to 2011 in its Idaho jurisdiction. Idaho Power would be permitted to amortize additional ADITC in an amount up to $45 million over the three-year period, but could use no more that $15 million in any one year unless there is a carryover. Carryover amounts are added to the $15 million annual allowance up to a maximum amortization of $25 million in any one year.
Because Idaho Powers Idaho-jurisdiction return on equity
was between 9.5 and 10.5 percent, the sharing and accelerated amortization provisions
were not triggered in 2009.
The settlement agreement also included a provision to
reestablish the base level for net power supply costs effective with the June
1, 2010, PCA rate change. On January 19, 2010, Idaho Power filed with the IPUC
a request to increase base net power supply costs by $74.8 million in the Idaho
jurisdiction. This amount, which is subject to approval by the IPUC, reflects
the maximum increase to Idaho Powers base net power supply costs, which would
be used for both base rates and PCA calculations. The actual change in net
power supply costs for rate purposes will depend upon the amount approved by
the IPUC as well as the amount of any PCA decrease determined for the 2010-2011
PCA year. Written comments or protests with respect to Idaho Powers
application are due March 11, 2010.
2009 Oregon Rate Case:
On December 16, 2009, Idaho
Power filed a Joint Stipulation and testimony in support of a stipulation that
would settle the revenue requirement issues surrounding the general rate case
filed on July 31, 2009. If approved by the OPUC, the Joint Stipulation would
result in a $5 million, or 15.4 percent, increase to base rates. The new rates
reflect a return on equity of 10.175 percent and an overall rate of return of
8.061 percent. The requested effective date for new rates is March 1, 2010.
Power Supply Cost Deferrals
Idaho Powers power supply costs can vary significantly from
year to year, primarily because of weather, loads and commodity markets. Idaho
Power has power cost adjustment mechanisms in both Idaho and Oregon. These
mechanisms allow Idaho Power to recover from or refund to customers a majority
of the fluctuations in power supply costs. Because of these mechanisms, the
primary financial impacts of power supply cost variations is that cash is paid
out but recovery from customers does not occur until a future period, resulting
in fluctuations in operating cash flows from year to year.
The following table summarizes Idaho Powers deferred power
supply cost activity during the last two years.
47
PCA Workshops:
In its order approving Idaho Powers
2008-2009 PCA, the IPUC directed Idaho Power to set up workshops with the IPUC
Staff and several of Idaho Powers largest customers to address issues not
resolved in that PCA filing. The workshops resulted in the following changes
to the PCA mechanism, effective February 1, 2009:
PCA sharing ratio the PCA allocates the deviations in net power supply expenses between customers (95 percent) and shareholders (5 percent). The previous sharing ratio was 90/10.
LGAR the LGAR is an element of the PCA formula that is intended to eliminate recovery of power supply expenses associated with load growth resulting from changing weather conditions, a growing customer base, or changing customer use patterns. The 2007 general rate case reset the LGAR from $29.41 to $62.79 per MWh, but applied that rate to only 50 percent of the load growth beginning in March 2008. The stipulation agreed on a new formula for calculating the LGAR. Based on the final rates approved by the IPUC in the 2008 general rate case and the supporting data, the current LGAR is $26.63 per MWh, effective February 1, 2009.
Use of Idaho Powers operation plan power supply cost forecast the operation plan forecast may better match current collections with actual net power supply costs in the year they are incurred and result in smaller amounts being included in the following years true-up rate, beginning with the 2009-2010 PCA filing.
Inclusion of third-party transmission expense transmission expenses paid to third parties to facilitate wholesale purchases and sales of energy, including losses, are a necessary component of net power supply costs. Deviation in these costs from levels included in base rates is now reflected in PCA computations.
Adjusted distribution of base net power supply costs base net
power supply costs are distributed throughout the year based upon the monthly
shape of normalized revenues for purposes of the PCA deferral calculation.
Fixed Cost Adjustment Mechanism (FCA)
The FCA mechanism began as a pilot program for Idaho Powers
Idaho residential and small general service customers, running from 2007
through 2009. The FCA is a rate mechanism designed to remove Idaho Powers
disincentive to invest in energy efficiency programs by separating (or
decoupling) the recovery of fixed costs from the variable kilowatt-hour charge
and linking it instead to a set amount per customer. On October 1, 2009, Idaho
Power filed an application with the IPUC to make the FCA mechanism permanent
beginning January 1, 2010. The application is being processed under modified
procedure.
Idaho Power accrued $6.6 million related to the FCA in 2009;
subject to IPUC approval, recovery should begin June 1, 2010. The IPUC
approved a rate increase effective June 1, 2009, through May 31, 2010, to
recover $2.7 million of fixed costs under-recovered during 2008. The IPUC
approved a rate reduction, effective June 1, 2008 through May 31, 2009, to
return $2.4 million of fixed costs over-recovered in 2007.
Langley Gulch Power Plant Ratemaking Treatment
On September 1, 2009, the IPUC issued an order providing
cost recovery and ratemaking assurances related to Idaho Powers Langley Gulch
project. The IPUC found that Idaho Power had satisfied statutory requirements
that would entitle Idaho Power to receive such ratemaking assurances and
granted Idaho Power assurance and pre-approval to include $396.6 million of
construction costs in Idaho Powers rate base when Langley Gulch achieves
commercial operation. The order contemplates that Idaho Power may request
recovery of additional costs if they exceed $396.6 million; provided that Idaho
Power is able to demonstrate that the additional costs were reasonably and
prudently incurred. Please see further discussion of the Langley Gulch project
in LIQUIDITY AND CAPITAL RESOURCES - Major Projects - Langley Gulch Power
Plant.
Pension Expense
In the 2003 Idaho general rate case, the IPUC disallowed
recovery of pension expense because there were no current cash contributions
being made to the pension plan. On June 1, 2007, the IPUC issued an order
authorizing Idaho Power to account for its defined benefit pension expense on a
cash basis. The IPUC acknowledged that it is appropriate for Idaho Power to
seek recovery in its revenue requirement of reasonable and prudently incurred
pension expense based on actual cash contributions. Idaho Power deferred
approximately $29 million, $8 million and $3 million of pension expense to a
regulatory asset in 2009, 2008, and 2007 respectively. Idaho Power does not receive
a carrying charge on the current deferral balance.
48
On October 20, 2009, Idaho Power filed an application with
the IPUC to implement a mechanism to track and recover annually cash
contributions made to the pension plan. Estimated minimum required
contributions will be approximately $6 million in 2010, $44 million in 2011 $47
million in 2012, $39 million in 2013, and $40 million in 2014. In its
comments, the IPUC Staff recommended against establishing an annual tracking
mechanism but supported allowing the inclusion in a future rate case of
reasonable amortization of cash contributions. Idaho Power met with the IPUC
Staff to clarify its understanding of their recommendation. As a result of the
meeting, Idaho Power filed reply comments with the IPUC stating that is was not
opposed to the Staffs recommendation with the clarification that the IPUC will
approve amortization of future deferred cash contributions at the same time and
in the same amounts as will be approved for recovery. On February 17, 2010, the
IPUC issued its order approving the recovery methodology agreed to by Idaho
Power and the IPUC Staff as clarified in Idaho Powers reply comments. The
IPUC also approved a carrying charge on the difference between actual contributions
and the recovery of these amounts in rates.
Idaho Power recovers pension expense in its Oregon
jurisdiction on the accrual basis.
Idaho Energy Efficiency Rider (Rider)
Idaho Powers Rider is the chief funding mechanism for Idaho
Powers investment in energy efficiency, conservation, and demand response
programs. Effective June 1, 2009, Idaho Power collects 4.75 percent of base
revenues, or approximately $29-$33 million annually, under the Rider.
In the 2008 general rate case, Idaho Power requested that
the IPUC explicitly find that Idaho Powers expenditures between 2002 and 2007
of $29 million of funds obtained from the Rider were prudently incurred and no
longer subject to potential disallowance. In 2009, the IPUC approved a
stipulation identifying $14.3 million of Rider funding as prudent, and on
January 25, 2010, Idaho Power and the IPUC Staff filed a stipulation for
approval by the IPUC to find the remaining expenditures through 2007 were
prudently incurred.
On October 5, 2009, Idaho Power and other investor-owned
electric utilities serving in Idaho began a series of informal public workshop
with the IPUC Staff to discuss how energy efficiency evaluation and prudency
will be determined on a prospective basis. As a result a Memorandum of Understanding
(MOU) written by Staff, Idaho Power and other investor-owned electric utilities
in Idaho has been signed outlining a process for future energy expenditure
approval. This document was filed with the IPUC on January 25, 2010.
In the first quarter of 2010, Idaho Power expects to request
a similar prudency determination from the IPUC for Rider expenditures in 2008
and 2009. Idaho Power spent approximately $19 million in 2008 and $33 million
in 2009 for rider-funded energy efficiency and demand response initiatives in
its Idaho and Oregon jurisdictions combined. The increase in spending in 2009
reflects Idaho Powers growing emphasis on these programs, such as
implementation of a revised irrigation peak rewards program and commercial
demand response program in 2009.
FERC OATT Proceeding:
In 2006, Idaho Power moved
from a fixed rate to a formula rate for its open access transmission tariff
(OATT), which allows transmission rates to be updated each year. The FERC
accepted Idaho Powers new formula rates, effective June 1, 2006, subject to
refund pending the outcome of a hearing and settlement process.
While the majority of issues related to Idaho Powers 2006
revised OATT filing have been resolved, Idaho Power is awaiting an order upon
reconsideration from the FERC regarding the treatment of Legacy Agreements.
These agreements are contracts for transmission service that were in existence
before the implementation of the OATT in 1996. The impact of FERCs ruling is
being mitigated by revising certain of the Legacy Agreements as provided for in
the agreements. Revisions are expected to increase annual transmission revenue
by approximately $3.8 million in 2010 compared to 2009.
Idaho Powers OATT is discussed further in Note 3 to the
consolidated financial statements.
FERC Compliance Program:
The FERC issued Policy
Statements on Enforcement in 2005 and 2008 and a Policy Statement on Compliance
in 2008. These statements encourage companies to self-report to the FERC
matters that constitute or may constitute violations of the Federal Power Act
(FPA), the Natural Gas Act, the Natural Gas Policy Act and the requirements of
FERC rules, regulations, orders and tariffs. The Policy Statements identify
self-reporting as a factor the FERC will consider in determining the proper
remedy for a violation and emphasize the role compliance programs play in
identifying and correcting violations and in evaluating whether and the extent
to which penalties may be imposed.
49
Idaho Power has implemented a compliance program to ensure
that its operations conform to the FERCs requirements and to provide a means
of identifying, correcting and if warranted, self-reporting any such matters to
the FERC. Idaho Power also self-reports matters relating to transmission reliability
standards to the WECC. In 2007, FERC Order No. 693 approved mandatory
reliability standards developed by the North American Electric Reliability
Corporation. In 2008, FERC Order No. 706 also approved Critical Infrastructure
Protection Reliability Standards (CIP) developed by the North American Electric
Reliability Corporation. The WECC, a regional electric reliability
organization, has responsibility for compliance and enforcement of these
standards. As part of its compliance program, Idaho Power has reported
compliance issues relating to the FERCs Standards of Conduct and Idaho Powers
OATT to the FERC, as well as matters relating to CIP and other reliability
standards to the WECC. Some of these matters have been resolved, while others
are being reviewed by the FERC or the WECC. Those matters that have been
resolved to date have resulted in no material impact to Idaho Power. Idaho
Power is unable to predict what action if any the FERC or the WECC will take
with regard to the unresolved matters. Idaho Power plans to continue its
policy of using its compliance program to reduce potential violations and to
self-report matters to the FERC and the WECC.
Bonneville Power Administration Residential Exchange
Program:
The Pacific Northwest Electric Power Planning and Conservation
Act of 1980 (the Act), through the Residential Exchange Program (REP), has
provided access to the benefits of low-cost federal hydroelectric power to
residential and small farm customers of the regions investor-owned utilities
(IOUs). The REP is administered by the Bonneville Power Administration (BPA).
Pursuant to agreements between the BPA and Idaho Power, benefits from the BPA
were passed through to Idaho Powers residential and small farm customers
through electricity bill credits.
On May 3, 2007, the U.S. Court of Appeals for the Ninth
Circuit ruled that the agreements entered into between the BPA and the IOUs
(including Idaho Power) are inconsistent with the Act and shortly thereafter
suspended REP payments to Idaho Power and the IOUs. Effective June 1, 2007,
Idaho Power eliminated the credit on its customers bills. Subsequent BPA
filings and decisions have provided no REP benefits to Idaho Powers customers
and Idaho Power has filed petitions for review of these decisions with the U.S.
Court of Appeals for the Ninth Circuit.
Idaho Power has been working with the other northwest IOUs
and consumer-owned utilities, northwest state public utility commissions and
the BPA to resolve these issues.
Settlement efforts took place from August through November
of 2009 and parties in the case have agreed to the selection of a mediator,
with sessions expected to begin in the spring of 2010. Since these benefits
were passed through to Idaho Powers customers, the outcome of this matter is
not expected to have an effect on Idaho Powers financial condition or results
of operations.
Relicensing of Hydroelectric Projects :
Idaho Power, like other utilities that operate nonfederal
hydroelectric projects on qualified waterways, obtains licenses for its
hydroelectric projects from the FERC. These licenses last for 30 to 50 years
depending on the size, complexity, and cost of the project. Idaho Power is
actively pursuing the relicensing of the Hells Canyon Complex (HCC) and Swan Falls
projects.
The relicensing costs are recorded in construction work in
progress until new multi-year licenses are issued by the FERC, at which time
the charges will be transferred to electric plant in service. Relicensing
costs and costs related to new licenses will be submitted to regulators for
recovery through the ratemaking process. Relicensing costs of $117 million and
$4 million for HCC and Swan Falls, respectively, were included in construction
work in progress at December 31, 2009.
The IPUC authorized Idaho Power to include in rates
approximately $6.8 million annually ($10.6 million grossed up for income taxes)
of AFUDC relating to the HCC relicensing project. This became effective
February 1, 2009, and Idaho Power collected approximately $9.7 million in
2009. Collecting these amounts in current rates will reduce the relicensing
amount submitted to regulators for recovery through the ratemaking process.
50
Hells Canyon Complex:
The most significant ongoing
relicensing effort is the HCC, which provides approximately 68 percent of Idaho
Powers hydroelectric generating nameplate capacity and 36 percent of its total
generating nameplate capacity. In July 2003, Idaho Power filed an application
for a new license in anticipation of the July 2005 expiration of the
then-existing license. Idaho Power is currently operating under an annual
license issued by the FERC and expects to continue operating under annual
licenses until the new license is issued.
Consistent with the requirements of the National Environmental
Policy Act of 1969, as amended (NEPA), the FERC Staff issued on August 31,
2007, a final environmental impact statement (EIS) for the HCC, which the FERC
will use to determine whether, and under what conditions, to issue a new
license for the project. The purpose of the final EIS is to inform the FERC,
federal and state agencies, Native American tribes and the public about the
environmental effects of Idaho Powers proposed operation of the HCC. Idaho
Power has reviewed the final EIS and is developing comments for filing with the
FERC. However, certain portions of the final EIS, involve issues that may be
influenced by the water quality certifications for the project under section
401 of the Clean Water Act and formal consultations under the Endangered
Species Act (ESA), which remain unresolved. Idaho Power anticipates filing
comments to the final EIS as the section 401 and ESA processes progress and the
manner in which they may affect pending issues becomes certain.
In conjunction with the issuance of the final EIS, on
September 13, 2007, the FERC requested formal consultation under the ESA with
the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife
Service (USFWS) regarding the effect of HCC relicensing on several aquatic and
terrestrial species listed as threatened under the ESA. However, formal
consultation has not yet been initiated and NMFS and USFWS continue to gather
and consider information relative to the effect of relicensing on relevant
species. Idaho Power continues to cooperate with the USFWS, the NMFS and the
FERC in an effort to address ESA concerns.
Because the HCC is located on
the Snake River where it forms the border between Idaho and Oregon, Idaho Power
has filed Water Quality Certification Applications, required under section 401
of the Clean Water Act, with the States of Idaho and Oregon requesting that
each state certify that any discharges from the project comply with applicable
state water quality standards. Temperature and other water quality issues are
of interest to various federal and state agencies, Native American tribes, and
other parties who may provide input to the states certification process.
Section 401 of the Clean Water Act requires that a state either approve or deny
a 401 water quality certification application within one-year of the filing of
the application or the state may be considered to have waived its certification
authority under the Act. As a consequence, Idaho Power has been filing and
withdrawing its section 401 certification applications with Oregon and Idaho on
an annual basis while it has been working through water quality certification
issues with the states. Most recently, on December 23, 2009, Idaho Power
withdrew the 401 certification applications filed with Oregon and Idaho, and
immediately refiled the applications, in order to allow Idaho Power additional
time to address unresolved issues associated with water quality certification
for the project. One such issue involves the Temperature Enhancement
Management Program that Idaho Power proposed in its application and whether
that program provides reasonable assurance that discharges from the HCC will
adequately address fall temperature water quality criteria below Hells Canyon
Dam. Idaho Power is continuing to work with Idaho and Oregon to ensure that
any discharges from the HCC will comply with the temperature and other
applicable necessary state water quality standards so that appropriate water
quality certifications can be issued for the project.
The FERC is expected to issue a license order for the HCC
once the ESA consultation and the section 401 certification processes are
completed.
Swan Falls Project:
The license for the Swan Falls
hydroelectric project expires in June 2010. In June 2008, Idaho Power filed a
license application with the FERC. On January 9, 2009, the FERC issued a
scoping document giving notice of scheduled scoping meetings, soliciting
scoping comments and of its intent to prepare an EIS pursuant to the NEPA.
FERC held scoping meetings on February 10 and 11, 2009. On May 5, 2009, FERC
issued Scoping Document 2 for the project, advising that based on the scoping
meetings and comments received that staff will prepare an EIS, which the FERC
will use to determine whether, and under what conditions, to issue a new
hydropower license for the project. On June 16, 2009, FERC issued its Notice
of Application Ready for Environmental Analysis and Soliciting Comments,
Recommendations, Terms and Conditions, and Prescriptions. The deadline for
filing comments, recommendations, terms and conditions, and prescriptions was
August 15, 2009. Filings were made by the USFWS and state of Idaho. The FERC
expects to complete the EIS in 2010.
51
On June 6, 2008, Idaho Power filed an application with the
Idaho Department of Environmental Quality (IDEQ) for section 401 water quality
certification. On April 1, 2009, the IDEQ issued public notice, seeking public
comment on a draft section 401 certification for the project. No public
comments were submitted and the IDEQ issued the section 401 certification on
May 4, 2009.
Shoshone Falls Expansion:
On August 17, 2006, Idaho
Power filed a license amendment application with the FERC, which would allow
Idaho Power to upgrade the Shoshone Falls project from 12.5 MW to 62.5 MW. The
license amendment is expected to be issued in 2010. In conjunction with the
license amendment application, Idaho Power has filed a water rights application
with the Idaho Department of Water Resources (IDWR).
LEGAL MATTERS:
Western Energy Proceedings at the FERC:
Idaho Power and IE are parties to proceedings at
the FERC arising from the western energy situation the California energy
crisis that occurred during 2000 and 2001, and the energy shortages, high
prices and blackouts in the western United States. High prices for electricity
in California and in western wholesale markets during 2000 and 2001 caused
numerous purchasers of electricity in those markets to initiate proceedings
seeking refunds or other forms of relief.
The three major sets
of cases arising out of the western energy situation relate to (i) pricing of
sales in the California Independent System Operator (Cal ISO) and California
Power Exchange (CalPX) markets (the California refund proceeding); (ii) claims
of market manipulation and tariff violations in those markets, some of which
have been the subject of FERC show cause orders (the market manipulation
cases); and (iii) pricing of sales in the spot power markets in the Pacific
Northwest (the Pacific Northwest refund proceeding).
Proceedings in all
three sets of cases remain pending before the FERC. In addition, there are
pending in the United States Court of Appeals for the Ninth Circuit (Ninth
Circuit) approximately 200 petitions for review of numerous FERC orders
regarding the western energy situation, including the California refund
proceeding and the market manipulation cases. Decisions in these appeals may
have implications with respect to other pending cases, including those to which
Idaho Power or IE are parties.
Idaho Power and IE
have reached settlements with the principal parties to the California refund
proceeding and the market manipulation cases, but there remain claims by
parties that have not settled that represent a small minority of potential
refunds in those proceedings. Idaho Power and IE are unable to predict the
outcome of these matters, but believe that the settlement releases they have
obtained will restrict potential claims that might result from the disposition
of these two sets of proceedings and that these matters will not have a
material adverse effect on their consolidated financial positions, results of
operations or cash flows.
In the Pacific Northwest refund proceeding, after reviewing
the FERCs 2003 decision declining to order refunds, the Ninth Circuit remanded
the case to the FERC on April 16, 2009 to consider whether evidence of market
manipulation would have altered the agencys conclusions about refunds and to
include sales to the California Department of Water Resources (CDWR) in the
proceedings. Although the FERC has not yet acted on the remand from the Ninth
Circuit, in separate filings the California Parties (Pacific Gas & Electric
Company, San Diego Gas & Electric Company, Southern California Edison
Company, the California Public Utilities Commission, the California Department
of Water Resources and the California Attorney General) and the City of Tacoma,
Washington and the Port of Seattle, Washington asked the FERC to take actions
to reorganize and restructure the case so that they may pursue claims that all
spot market sales in the Cal ISO and CalPX markets and in the Pacific Northwest
from January 1, 2000 through June 20, 2001 should be repriced, and thereby
become subject to refund, because market manipulation and tariff violations
affected spot market prices. This would expand the scope of the refund period
in the Pacific Northwest proceeding from the December 25, 2000 through June 20,
2001 period previously considered by the FERC. In May 2009, the California
Parties requested that the FERC sever the CDWR sales from the Pacific Northwest
proceeding and consolidate the CDWR sales portion with ongoing proceedings in
cases that Idaho Power and IE have settled, as well as with a new complaint
filed on May 22, 2009 by the California Attorney General against some sellers,
but not including Idaho Power and IE. In August 2009, the City of Tacoma,
Washington and the Port of Seattle, Washington requested the FERC, either on a
summary basis or after new evidentiary hearings, to require refunds from all
sellers in the Pacific Northwest spot markets for the expanded period (January
1, 2000 through June 21, 2000). Idaho Power and IE are unable to predict the
outcome of these matters or estimate the impact they may have on their
consolidated financial positions, results of operations or cash flows.
52
Sierra Club Lawsuits at the Bridger and Boardman coal
fired plants in which Idaho Power has ownership interests:
In February
2007, the Sierra Club and the Wyoming Outdoor Council filed a complaint against
PacifiCorp in the U.S. District Court in Cheyenne, Wyoming, alleging violations
of air quality opacity standards at the Jim Bridger coal-fired plant in
Sweetwater County, Wyoming. Opacity is an indication of the amount of light
obscured by the flue gas of a power plant. The complaint alleged thousands of
opacity permit violations by PacifiCorp and sought a declaration that
PacifiCorp had violated opacity limits, a permanent injunction ordering
PacifiCorp to comply with such limits, civil penalties of up to $32,500 per day
per violation, and reimbursement of plaintiffs costs of litigation, including
reasonable attorneys fees. Idaho Power is not a party to this proceeding but
has a one-third ownership interest in the plant. PacifiCorp owns a two-thirds
interest in and is the operator of the plant. On February 10, 2010, PacifiCorp
and plaintiffs reached an agreement in principle to the settlement of the
lawsuit in its entirety. The settlement is subject to the approval of the
Environmental Protection Agency and the court. If approved, the settlement
will not have a material adverse effect on Idaho Powers consolidated financial
positions, results of operations or cash flows.
In September 2008, the Sierra Club and four other non-profit
corporations filed a complaint against Portland General Electric Company (PGE)
in the U.S. District Court for the District of Oregon alleging opacity permit
limit violations at the Boardman coal-fired plant located in Morrow County,
Oregon. The complaint also alleged violations of the Clean Air Act, related
federal regulations and the Oregon State Implementation Plan relating to PGEs
construction and operation of the plant. The complaint sought a declaration
that PGE had violated opacity limits, a permanent injunction ordering PGE to
comply with such limits, injunctive relief requiring PGE to remediate alleged
environmental damage and ongoing impacts, civil penalties of up to $32,500 per
day per violation, and reimbursement of plaintiffs costs of litigation,
including reasonable attorneys fees. Idaho Power is not a party to this
proceeding but has a 10 percent ownership interest in the Boardman plant. PGE
owns 65 percent and is the operator of the plant. PGE has stated that it
cannot determine with certainty the total amount of monetary penalties and
damages asserted, but based solely on the complaint, the estimated amount is
$60 million.
Idaho Power is unable to predict the outcome of this matter
or estimate the impact it may have on its consolidated financial positions,
results of operations or cash flows.
Snake River Basin Water Rights:
Idaho Power is
engaged in the Snake River Basin Adjudication (SRBA), general stream
adjudication, commenced in 1987, to define the nature and extent of water
rights in the Snake River basin in Idaho, including the water rights of Idaho
Power.
On March 25, 2009, Idaho Power and the State of Idaho
(State) entered into a settlement agreement with respect to the 1984 Swan Falls
Agreement and Idaho Powers water rights under the Swan Falls Agreement, which
settlement agreement is subject to certain conditions discussed below. The
settlement agreement will also resolve litigation between Idaho Power and the
State relating to the Swan Falls Agreement that was filed by Idaho Power on May
10, 2007, with the Idaho District Court for the Fifth Judicial Circuit, which
has jurisdiction over SRBA matters including the Swan Falls case.
The settlement agreement resolves the pending litigation by
clarifying that Idaho Powers water rights in excess of minimum flows at its
hydroelectric facilities between Milner Dam and Swan Falls Dam are subordinate
to future upstream beneficial uses, including aquifer recharge. The agreement
commits the State and Idaho Power to further discussions on important water
management issues concerning the Swan Falls Agreement and the management of
water in the Snake River Basin. It also recognizes that water management
measures that enhance aquifer levels, springs and river flows, such as aquifer
recharge projects, benefit both agricultural development and hydropower
generation and deserve study to determine their economic potential, their
impact on the environment and their impact on hydropower generation. These
will be a part of the Comprehensive Aquifer Management Plan (CAMP), approved by
the Idaho Water Resource Board (IWRB) for the Eastern Snake Plain Aquifer
(ESPA), which includes limits on the amount of aquifer recharge. Idaho Power
is a member of the ESPA CAMP advisory committee and implementation committee.
53
On April 24, 2009, the Governor of Idaho signed into law
legislation approving provisions contained in the settlement agreement. On May
6, 2009, as part of the settlement, Idaho Power, the Governor of Idaho and the
IWRB executed a memorandum of agreement relating to future aquifer recharge
efforts and further assurances as to limitations on the amount of aquifer
recharge. Idaho Power and the State also filed a joint motion to the SRBA
court to dismiss the Swan Falls case and enter the stipulated water right
decrees set forth in the settlement agreement. Parties representing
groundwater users in the ESPA objected to some of the language proposed by
Idaho Power and the State relating to water rights in the decrees to be entered
by the SRBA court as contemplated by the settlement agreement. Specifically,
the concerns relate to the language describing the subordination of the rights
and its interplay with the original Swan Falls settlement document and
implementing legislation. On January 4, 2010, the court issued an order
approving the overall settlement subject to certain modifications to the draft
water right decrees proposed by the company and the state. The company is
working with the state and the parties to reach agreement consistent with the
courts order regarding the language of the decrees.
Idaho Power has also filed an action in the U.S. District
Court of Federal Claims in Washington, D.C. in October, 2007 against the U.S.
Bureau of Reclamation relating to a contract right for delivery of water to its
hydropower projects on the Snake River to recover damages from the U.S. Bureau
of Reclamation for the lost generation resulting from reduced flows and a
prospective declaration of contractual rights so as to prevent the U.S. Bureau
of Reclamation from continued failure to fulfill its contractual and fiduciary
duties to Idaho Power. Trial of the matter has not been scheduled.
Idaho Power is unable to predict the outcome of these
matters or estimate the impact either may have on its consolidated financial
positions, results of operations or cash flows.
For further information regarding legal proceedings, see
Note 10 to the consolidated financial statements.
ENVIRONMENTAL ISSUES:
Global Climate Change:
Long-term climate change could significantly affect Idaho
Powers business in a variety of ways, including the following: (i) changes in
temperature and precipitation could affect customer demand, (ii) extreme
weather events could increase service interruptions, outages, and maintenance
costs; (iii) changes in the amount and timing of snowpack and stream flows
could adversely affect hydroelectric generation, and (iv) legislative and/or
regulatory developments related to climate change could affect plans and
operations including placing restrictions on the construction of new generation
resources, the expansion of existing resources, or the operation of generation
resources in general
, and (v)
consumer preference for, and resource planning decisions requiring, renewable
or low GHG-emitting sources of energy could impact demand from existing sources
and require significant investment in new generation and transmission
resources.
Greenhouse Gas Emission Reduction Goals:
In
September 2009, IDACORPs and Idaho Powers Board of Directors approved
guidelines that established a goal to reduce the carbon dioxide (CO
2
)
emission intensity of Idaho Powers utility operations. Idaho Powers goal is
to reduce its resource portfolios average CO
2
emission intensity
for the 2010 through 2013 time period to a level of 10 to 15 percent below
Idaho Powers 2005 CO
2
emission intensity of 1,194 lbs CO
2
/MWh.
Since Idaho Powers CO
2
emission intensity
fluctuates with stream flows and production levels of anticipated renewable
resource additions, Idaho Power believes an average intensity reduction goal to
be achieved over several years is appropriate. Generation from Idaho
Power-owned and any renewable resources under contract for which Idaho Power
has long-term rights to the Renewable Energy Credits (RECs) will be included in
the denominator of this calculation. Idaho Powers progress toward achieving
this intensity reduction goal, as well as additional information on Idaho
Powers CO
2
emissions, will be reported on Idaho Powers website.
The guidelines are intended to reduce Idaho Powers average CO
2
emission
intensity in a manner that minimizes the costs of those reductions to Idaho
Powers customers.
In 2006 Idaho Powers and Ida-West ranked as one of the 30
lowest emitters of CO
2
/MWh produced among the nations 100 largest
electricity producers, according to a collaborative report from CERES, the
natural Resources Defense Council, Public Service Enterprise Group and PG&E
Corporation using publicly reported 2006 generation and emissions data.
In May 2009, Idaho Power submitted information to the Carbon
Disclosure Project (CDP), an independent, not-for-profit organization that
claims the largest database of corporate climate change information in the
world. The CDP posted responding companies information at its website in
September 2009. Idaho Powers estimated CO
2
emission intensity
(Lbs/MWh) from its generation facilities as submitted to the CDP was 1,150 and
1,097 for 2007 and 2008, respectively. Idaho Power estimates that its CO
2
emission intensity from Idaho Power-owned generation facilities for 2009 was
1,003 Lbs CO
2
/MWh.
54
Regulation of Greenhouse Gas Emissions:
The American
Clean Energy and Security Act of 2009, H.R. 2454, Passed the U.S. House of
Representatives on June 26, 2009. Senate Environment and Public Works Chairman
Barbara Boxer (D-CA) and Senator John Kerry (D-MA) introduced a climate change
bill on the Senate floor on September 30, 2009. The timeline for action on the
Senate floor remains unclear and debate continues on the direction, scope and
timing of federal legislation to reduce GHG emissions. There are also state
and regional initiatives (including the western Regional Climate Action
Initiative) considering regional market-based mechanisms to reduce GHG
emissions.
Oregon enacted legislation in August 2007 establishing
economy-wide goals for the reduction of greenhouse gas emissions. Oregons
goals seek to (i) by 2010, cease the growth of Oregon greenhouse gas emission;
(ii) by 2020, reduce greenhouse gas levels to 10 percent below 1990 levels; and
(iii) by 2050, reduce greenhouse gas levels to at least 75 percent below 1990
levels. The legislation also calls for state government-developed policy
recommendations in the future to assist in the monitoring and achievement of
these goals. The impact of the enacted legislation on Idaho Power cannot be
determined at this time.
On January 14, 2010, Portland General Electric announced
that it intended to pursue an alternative operating plan for its Boardman power
plant. Under the alternative operating plan, near-term expenditures for
pollution control equipment would be significantly reduced and Boardman would
either cease to operate in 2020, or it would discontinue the use of coal as a
fuel source. Idaho Power is a ten percent owner of the plant, representing
64,200 kW of nameplate capacity.
In support of international efforts to reduce GHG emissions,
in January 2010, President Obama pledged to cut GHG emissions in the United
States from 2005 levels by 17 percent by 2020 and 80 percent by 2050. Any
international treaty creating mandatory GHG emission reduction requirements in
the United States would need to be ratified by the U.S. Senate and implemented
through legislation adopted by the U.S. Congress.
In September 2009, the EPA issued a final rule that requires
monitoring and reporting of GHG emissions by a number of entities beginning on
January 1, 2010. Most facilities will be required to report annually.
Electric generation facilities (including Idaho Powers facilities) already
reporting CO
2
emissions under the Clean Air Act (CAA) Acid Rain
Program must report CO
2
, nitrous oxide and methane emissions to the
EPA on a quarterly basis.
In December 2009, the EPA issued an endangerment
finding for GHG emissions from motor vehicles which has been appealed to the
U.S. Court of Appeals for the District of Columbia Circuit. The endangerment
finding is required for the EPA and the Department of Transportation National
Highway Traffic Safety Administration to finalize their September 2009 proposal
to adopt national GHG emission standards for motor vehicles. On September 30,
2009, the EPA acknowledged that the CAA will require it to regulate GHG
emissions from stationary sources (including Idaho Powers thermal facilities)
through both its preconstruction and operating permit programs when it
finalizes its proposal to adopt national GHG emission standards for motor
vehicles. Under this proposed rule, EPA is seeking to establish an
applicability threshold of 25,000 tons of GHGs per year (CO
2
equivalent)
for such programs.
Idaho Power will continue to monitor and evaluate any
proposed international, federal, state or regional GHG legislation or
initiatives as well as any judicial decisions that could affect its generating
facilities. The majority of current initiatives regarding GHG emissions
contemplate market-based compliance programs. The regulation of GHG emissions
under the CAA could result in GHG emission limits on stationary sources that do
not provide market-based compliance options such as cap-and-trade programs or
emission offsets. Such a program could raise uncertainty about the future
viability of fossil fuels, specifically coal, as an economical energy source
for new and existing electric generation facilities because new technologies
for reducing CO
2
emissions from coal, including carbon capture
storage, are still in the development stage and are not yet proven. At this
time, however, Idaho Power is unable to estimate the costs of compliance with
any such legislation or initiatives because they are in the early stages of
development and final legislation, if adopted, could vary from current
proposals. In the 2009 IRP, Idaho Power did not include any new conventional
coal resources in the resource portfolio due to the uncertainty regarding
future carbon regulations.
55
Renewable Portfolio Standards (RPS):
The American
Clean Energy and Security Act of 2009 as passed in the U.S. House of
Representatives on June 26, 2009, would require utilities to obtain 20 percent
of their electricity from renewable sources by 2020, and reduce demand an
additional five percent through conservation and increased energy efficiency.
The Senate version would require electric utilities to meet 15 percent of their
electricity sales through renewable sources of energy or energy efficiency by
2021. Resources eligible to meet these standards include wind, solar,
geothermal, biomass, landfill gas, ocean, and incremental hydropower
(efficiency improvements or new capacity). Both bills recognize the benefits
of existing hydroelectric generation by allowing utilities to subtract
generation from existing hydroelectric projects from their total sales base
prior to calculating the percentage requirement. Idaho Power will be required
to comply with a ten percent RPS in Oregon beginning in 2025. Idaho Power
expects to meet these requirements with the RECs from the Elkhorn Valley wind
project. No RPS requirement currently exists in Idaho. Idaho Power continues
to monitor proposed federal RPS legislation, which if passed could increase
capital expenditures and operating costs and reduce earnings and cash flows.
Idaho Power is currently purchasing energy from seven
wind projects with a combined nameplate rating of 192 MW. Idaho Power also has
an additional 275 MW of wind generation with signed and IPUC approved contracts
that have not yet been constructed; Because of IPUC rules related to PURPA
contracts and the IPUC order for Idaho Power to sell some of its near-term
RECs, Idaho Power does not hold the green tags or RECs associated with all of
these projects. Idaho Power continues to pursue additional geothermal, wind,
and combined heat and power (CHP) generation resources with individual
developers. Other renewable generation resources anticipated from future CSPP
contracts include solar, biomass, CHP and additional wind projects. For
additional discussion of how Idaho Power is preparing for potential RPS
requirements, see Item 1 BUSINESS
Utility Operations Resource Planning.
Air Quality
Idaho Power co-owns three coal-fired power plants and
owns two natural gas combustion turbine power plants that are subject to air
quality regulation. The coal-fired plants are: Jim Bridger (33 percent
interest) located in Wyoming; Boardman (ten percent interest) located in
Oregon; and Valmy (50 percent interest) located in Nevada. The natural
gas-fired plants, Danskin and Bennett Mountain, are located in Idaho. The CAA
establishes controls on the emissions from stationary sources like those owned
by Idaho Power. The EPA adopts many of the standards and regulations under the
CAA, while states have the primary responsibility for implementation and
administration of these air quality programs. In February 2010, a bill was
introduced in the Senate to impose limits on SO
2
and NO
x
emissions from power plants starting in 2012 and to require at least a 90
percent reduction in mercury emissions from coal-fired generation. Idaho Power
continues to actively monitor, evaluate and work on air quality issues
pertaining to federal and state mercury emission rules, possible legislative
amendment of the CAA as discussed above, National Ambient Air Quality Standards
(NAAQS), and Regional Haze Best Available Retrofit Technology (RH BART) and
New Source Review (NSR) permitting.
Mercury Emissions:
Mercury continuous emission
monitoring systems have been installed on all of the coal-fired units at the
Jim Bridger, Boardman and Valmy plants and tests to confirm the accuracy of the
data being collected are currently underway. The EPA has announced that it is
developing maximum achievable control technology standards to reduce mercury
emissions from coal-fired power plants. In 2008, the State of Oregon adopted a
mercury rule requiring Boardman to reduce mercury emissions by 90 percent or
meet an emission rate of 0.6 lbs/trillion BTU by July 2012. The state is now
considering allowing up to a two year extension. Idaho Power continues to
monitor Wyoming and Nevada actions related to mercury emissions. Idaho Power
is unable to predict at this time what actions the EPA or the other states may
take to reduce mercury emissions from its coal-fired power plants.
National Ambient Air Quality Standards
: In July
1997, the EPA adopted new NAAQS for ozone (8-hour ozone standard) and fine
particulate matter of less than 2.5 micrometers in diameter (PM2.5 standard).
Regulations promulgated by the EPA to implement these NAAQS have been
challenged and portions have been remanded back to the EPA for
reconsideration. The EPA and state efforts to implement the NAAQS adopted in
1997 are ongoing. All of the counties in Idaho, Oregon, Nevada and Wyoming
where Idaho Powers power plants operate currently are designated as meeting
attainment with 8-hour ozone and PM2.5 standards adopted by the EPA in 1997.
56
In December 2006, the EPA revised the NAAQS for PM2.5.
This new standard was challenged by a number of groups in the U.S. Court of
Appeals for the District of Columbia Circuit and the court remanded the
standard back to the EPA in February 2009. All of the counties in Idaho,
Nevada, Oregon and Wyoming where Idaho Powers power plants operate currently
were designated as meeting attainment with the revised PM2.5 NAAQS. The impact
of the new standard will not be known until the judicial appeals are completed
and the associated regulatory programs are promulgated and implemented.
In March 2008, the EPA promulgated a final regulation
which revised the 8-hour ozone NAAQS, and on January 19, 2010, the EPA proposed
to adopt a more stringent 8-hour ozone NAAQS. Idaho Power is unable to predict
what impact the adoption of this standard may have on its operations.
On January 22, 2010, the EPA adopted a new NAAQS for NO
2
at a level of 100 parts per billion averaged over a 1-hour period. The EPA has
not yet designated areas as attaining or not attaining the new NAAQS. In
addition, on November 16, 2009, the EPA proposed a more stringent NAAQS for SO
2
to a level between 50 and 100 parts per billion averaged over a 1-hour period.
Idaho Power is unable to predict what impact the adoption and implementation of
these standards may have on its operations.
Regional Haze Best Available Retrofit Technology:
In accordance with federal regional haze rules, coal-fired utility boilers are
subject to RH BART if they were built between 1962 and 1977 and affect any
Class I areas. This includes all four units at the Jim Bridger plant and the
Boardman plant. The two units at the Valmy plant were constructed after 1977
and are not subject to the federal regional haze rule. The Wyoming Department
of Environmental Quality (WDEQ) and the Oregon Department of Environmental
Quality (ODEQ) are conducting an assessment of emission sources pursuant to an
RH BART process. The states are also working on reasonable progress toward a
long term strategy beyond RH BART to reduce regional haze in Class I areas to
natural conditions by the year 2064.
PacifiCorp submitted an RH
BART application for the Jim Bridger plant in January 2007. On June 3, 2009,
WDEQ issued a public notice requesting comment from the public on the draft RH
BART State Implementation Plan (SIP) arising out of the application. WDEQ has
proposed to issue an RH BART air quality permit for modification of Bridger
requiring installation of low-NO
x
burners with separated over-fire
air for NO
x
reduction, and flue gas conditioning to enhance
performance of the electrostatic precipitator particulate controls. According
to WDEQ, these controls will allow Bridger to meet the EPAs presumptive RH
BART emission limits. The plant is already in the process of installing low NO
x
burners and SO
2
scrubber upgrades that are proposed in the
application. The SO
2
scrubber upgrade project has been completed on
Units 2 and 4 and is expected to be completed on the other two units by the end
of 2011. Idaho Power expects to spend approximately $22 million between 2009
and 2012 to complete these projects. WDEQ is further proposing to require
Bridger Units 3 and 4 to be equipped with selective catalytic reduction (SCR)
NO
x
controls before December 31, 2015 and December 31, 2016,
respectively. WDEQ is requiring installation of the two SCR units as part of
its long-term strategy in the regional haze SIP. Idaho Powers estimated share
of the cost to install the two SCRs is $120 million. Installation of this SCR
pollution control equipment could require extended maintenance outages. In addition,
WDEQ has proposed to require PacifiCorp to submit an application by January 15,
2015, to install add-on NO
x
controls at Bridger Units 1 and 2 by
December 31, 2023. Design and cost estimates for meeting this proposed
requirement are not yet available. The comment period on the draft RH BART SIP
ended on August 4, 2009. WDEQ will finalize the SIP and submit it to the EPA
for approval. Legal challenges or appeals of the final SIP are possible.
Idaho Power will continue to monitor this process.
In August 2008, the ODEQ issued a draft RH BART proposal
for the Boardman plant. The RH BART proposal was approved by the Oregon
Environmental Quality Commission in June 2009. The pollution control
requirements for RH BART and the long-term strategy are estimated to cost
between approximately $52 million and $56 million (Idaho Power share) based
upon current market conditions for air quality control equipment.
Approximately three-quarters of the costs will be incurred by 2014 with the
remainder incurred by 2017. Installation of this pollution control equipment
could require extended maintenance outages. On January 14, 2010, PGE announced
that it intended to pursue an alternative operating plan for its Boardman
plant. Under the alternative operating plan, near-term expenditures for
pollution control equipment would be significantly reduced and Boardman would
either cease to operate in 2020, or it would discontinue the use of coal as a
fuel source. Idaho Power does not yet know what impact this decision will have
on the ODEQ proposal.
While not required under RH BART, installation of low NO
x
burners and over-fired upgrades has been completed at the Valmy plant.
57
New Source Review:
Since 1999, the EPA and the U.S. Department of Justice have been pursuing a
national enforcement initiative focused on the compliance status of coal-fired
power plants with the New Source Review (NSR) permitting requirements and New
Source Performance Standards (NSPS) of the CAA. This initiative has resulted
in both enforcement litigation and significant settlements with a large number
of public utilities and other owners of coal-fired power plants across the
country. The administration has indicated an intention to continue this NSR
enforcement initiative. The EPA sent information requests under section 114 of
the CAA, requesting information relevant to NSR and NSPS compliance to the Jim
Bridger plant in 2003, the Valmy plant in 2009 and the Boardman plant in 2008
with a follow up request for information in 2009. Idaho Power is a co-owner of
these plants, but does not operate the plants. A number of utilities that have
received section 114 information requests have engaged in negotiations with the
EPA to address any allegations of non-compliance with NSR and NSPS requirements.
In some cases, such negotiations have resulted in settlements requiring the
payment of civil penalties, installation of additional pollution controls, the
surrender of emission allowances, and the completion of supplemental
environmental projects. Idaho Power cannot predict the outcome of these
investigatory matters at this time.
The EPA has announced its intention to propose new
regulations pursuant to the Resource Conservation and Recovery Act governing
the management and storage of coal ash waste, and to determine whether to
designate coal ash as a hazardous waste.
Endangered Species:
Slickspot
Peppergrass:
This southwestern Idaho plant species was listed as
threatened by the U. S. Fish and Wildlife Service (USFWS) effective December
2009. While, critical habitat for the plant was not designated at the time of
listing, approximately 98% of the plant species is located on federal land
owned by the Bureau of Land Management (BLM) and the Department of Defense.
Parts of the Gateway West and Boardman to Hemingway 500 kV transmission lines
and the Langley Gulch transmission and water lines will cross BLM land. This
listing will add an additional requirement and species for consideration in the
Endangered Species Act (ESA) section 7 consultation. A section 7 consultation
is a process used to determine a proposed actions effects on any ESA-listed
species that may be within the project area. This listing may impact the
expense and timing of permitting for these projects.
Sage Grouse
: The sage grouse has been proposed for
listing under the ESA. If the sage grouse is listed, this will add an
additional requirement and species for consideration in ESA section 7
consultations for the Gateway West and Boardman to Hemingway 500-kV
transmission lines and the Langley Gulch transmission and water lines and
winter habitat may impact the expense and timing for these projects.
Hells Canyon Project:
In 2007 FERC requested initiation of formal consultation under the Endangered
Species Act (ESA) with the National Marine Fisheries Service (NMFS) and the
(USFWS regarding potential effects of HCC relicensing on several listed aquatic
and terrestrial species. Formal consultation has not yet been initiated and
NMFS and USFWS continue to gather and consider information relative to the
effects of relicensing on relevant species. Idaho Power continues to cooperate
with the USFWS, the NMFS and the FERC in an effort to address ESA concerns.
Idaho Power may be required to modify operations pursuant to the Biological
Opinion that will result from formal consultation. However, the issuance of a
final Biological Opinion within the next 18 to 24 months is unlikely.
Bliss and Lower Salmon Falls Projects:
Idaho
Power is finalizing a Snail Protection Plan (Plan) in cooperation with the
USFWS. If the Plan is approved by the FERC, Idaho Power will file applications
with the FERC to amend the licenses for the Bliss and Lower Salmon Falls
projects that will maintain operating flexibility at both projects for the
remainder of their licenses.
CRITICAL ACCOUNTING POLICIES AND ESTIMATES:
When preparing financial statements in accordance with
generally accepted accounting principles (GAAP), IDACORPs and Idaho Powers
management must apply accounting policies and make estimates that affect the
reported amounts of assets, liabilities, revenues and expenses and related
disclosure of contingent assets and liabilities. These estimates often involve
judgment about factors that are difficult to predict and are beyond
managements control. Management adjusts these estimates based on historical
experience and on other assumptions and factors that are believed to be
reasonable under the circumstances. Actual amounts could materially differ
from the estimates.
58
Management believes the following accounting policies and
estimates are the most critical to the portrayal of their financial condition
and results of operations and require managements most difficult, subjective
or complex judgments, often as a result of the need to make estimates about the
effect of matters that are inherently uncertain and may change in subsequent
periods.
Accounting for Rate Regulation
GAAP requires entities that meet specific conditions to
reflect the impact of regulatory decisions in their consolidated financial statements
and requires that certain costs be deferred as regulatory assets until matching
revenues can be recognized. Similarly, certain items may be deferred as
regulatory liabilities. Idaho Power must satisfy the following conditions to
apply regulatory accounting: (1) an independent regulator must set rates; (2)
the regulator must set the rates to cover specific costs of delivering service;
and (3) the service territory must lack competitive pressures to reduce rates
below the rates set by the regulator.
Idaho Powers has determined that it meets these conditions
and its financial statements reflect the effects of the different rate making
principles followed by the jurisdictions regulating Idaho Power. The primary
effect of this policy is that Idaho Power has recorded $721 million of
regulatory assets and $297 million of regulatory liabilities at December 31,
2009. Idaho Power expects to recover these regulatory assets from customers
through rates and refund these regulatory liabilities to customers through
rates, but recovery or refund is subject to final review by the regulatory
bodies. If future recovery or refund of these amounts ceases to be probable,
or if Idaho Power determines that it no longer meets the criteria for applying
regulatory accounting, Idaho Power would be required to eliminate those
regulatory assets or liabilities, unless regulators specify some other means of
recovery or refund. Either circumstance could have a material effect on Idaho
Powers results of operations and financial position.
Asset Impairment
Available-for-sale securities:
Idaho Power has
investments in four mutual funds that experienced a significant decline in fair
value in 2008. Idaho Power is
required to evaluate these and other
securities periodically to determine whether a decline in fair value is other
than temporary. If the decline in fair value is other than temporary, the cost
of the investment is written down to fair value and the loss is recorded as a
realized loss. Two significant factors that are considered when evaluating
investments for impairment are the length of time and the extent to which the
market value has been less than cost. Idaho Powers investments had lost
between 32 percent and 43 percent of their value, primarily during the stock market
downturn in September and October 2008 and had been in loss positions from six
to 12 months at December 31, 2008. Because of the severity of the declines in
value, Idaho Power determined that the loss in value was other-than-temporary
and recorded a pre-tax loss of $6.8 million in the fourth quarter of 2008. At
December 31, 2009, the fair value of these investments was above their new cost
basis and no impairment was recorded.
Equity-Method Investments:
IFS has affordable
housing investments with a net book value of $78 million at December 31, 2009,
and Ida-West has investments in four joint ventures that own electric power
generation facilities. Except for one investment which is consolidated, these
investments are accounted for under the equity method of accounting
.
The standard for determining whether impairment must be recorded for these
investments is whether the investment has experienced a loss in value that is
considered an other-than-temporary decline in value. Impairment analyses on these
investments were performed in 2009 and an immaterial impairment was recorded on
one of the Ida-West joint ventures. These estimates required IDACORP to make
assumptions about future stream flows, revenues, cash flows and other items
that are inherently uncertain. Actual results could vary significantly from
the assumptions used, and the impact of such variations could be material.
Pension and Other Postretirement Benefits
Idaho Power maintains a qualified defined benefit pension
plan covering most employees, an unfunded nonqualified deferred compensation
plan for certain senior management employees and directors called the Senior
Management Security Plan (SMSP), and a postretirement medical benefit plan.
The costs IDACORP and Idaho Power record for these plans
depend on the provisions of the plans, changing employee demographics, actual
returns on plan assets and several assumptions used in the actuarial valuations
from which the expense is derived. The key actuarial assumptions that affect
expense are the expected long-term return on plan assets and the discount rate
used in determining future benefit obligations. Management evaluates the
actuarial assumptions on an annual basis, taking into account changes in market
conditions, trends and future expectations. Estimates of future stock market
performance, changes in interest rates and other factors used to develop the
actuarial assumptions are uncertain. Actual results could vary significantly
from the estimates.
59
The assumed discount rate is based on reviews of market
yields on high-quality corporate debt. Specifically, IDACORP and Idaho Power
utilize data published in the Citigroup Pension Liability Index and apply the
rates therein against the projected cash outflows of the plans. The discount rate
used to calculate the 2010 pension expense will be decreased to 5.9 percent
from the 6.1 percent used in 2009.
Rate-of-return projections for plan assets are based on
historical risk/return relationships among asset classes. The primary measure
is the historical risk premium each asset class has delivered versus the return
on 10-year U.S. Treasury Notes. This historical risk premium is then added to
the current yield on 10-year U.S. Treasury Notes, and the result provides a
reasonable prediction of future investment performance. Additional analysis is
performed to measure the expected range of returns, as well as worst-case and
best-case scenarios. Based on the current interest rate environment, current
rate-of-return expectations are lower than the nominal returns generated over
the past 20 years when interest rates were generally much higher.
Gross pension and other postretirement benefit expense for
these plans totaled $40 million, $16 million, and $15 million for the three
years ended December 31, 2009, 2008 and 2007, respectively, including amounts
allocated to capitalized labor and amounts deferred as regulatory assets. For
2010, gross pension and other postretirement benefit costs are expected to
total approximately $41 million, which takes into account the change in the
discount rate noted above, as well as a decrease in expected return on plan
assets. No changes were made to the other key assumptions used in the
actuarial calculation.
Had different actuarial assumptions been used, pension
expense could have varied significantly. The following table reflects the
sensitivities associated with changes in the discount rate and rate-of-return
on plan assets actuarial assumptions on historical and future pension and
postretirement expense:
|
Discount rate |
Rate of return |
||||||
|
2010 |
2009 |
2010 |
2009 |
||||
|
(millions of dollars) |
|||||||
Effect of 0.5% increase |
$ |
(4.1) |
$ |
(3.8) |
$ |
(1.7) |
$ |
(1.5) |
Effect of 0.5% decrease |
|
4.5 |
|
4.1 |
|
1.7 |
|
1.5 |
|
|
|
|
|
|
|
|
|
No cash contributions were required or made to the qualified
plan in 2007 or 2008. A $6 million contribution for 2009 is due in calendar
year 2010, and estimated payments of $44 million, $47 million, $39 million, and
$40 million are due in 2011, 2012, 2013, and 2014, respectively. Under the
SMSP, Idaho Power makes payments directly to participants in the plan. Benefit
payments are expected to be $3.3 million in 2010 and averaged $2.8 million per
year from 2007 to 2009. Gross postretirement plan contributions are expected
to be $4.2 million in 2010, and averaged $5.2 million from 2007 to 2009.
The IPUC has authorized Idaho Power to account for its
defined benefit pension expense on a cash basis, and to defer and account for
accrued pension expense
as a regulatory asset. The IPUC acknowledged
that it is appropriate for Idaho Power to seek recovery in its revenue
requirement of reasonable and prudently incurred pension expense based on
actual cash contributions. Idaho Power began deferring pension expense to a
regulatory asset account to be matched with revenue when future pension
contributions are recovered through rates. The deferral of pension expense
began in 2007. At December 31, 2009, $38 million of expense was deferred as a
regulatory asset. Approximately $30 million is expected to be deferred in
2010.
Please refer to Note 11 of the consolidated financial
statements, which contains additional information about the pension and
postretirement plans.
Contingent Liabilities
An estimated loss from a loss contingency is charged to
income if (a) it is probable that a liability had been incurred at the date of
the financial statements and (b) the amount of the loss can be reasonably
estimated. If a probable loss cannot be reasonably estimated, no accrual is
recorded but disclosure of the contingency in the notes to the financial
statements is required. Gain contingencies are not recorded until realized.
60
IDACORP and Idaho Power have a number of unresolved issues
related to regulatory and legal matters. If the recognition criteria have been
met, liabilities have been recorded. Estimates of this nature are highly
subjective and the final outcome of these matters could vary significantly from
the amounts that have been included in the financial statements.
Income Taxes
IDACORP and Idaho Power use judgment and estimation in
developing the provision for income taxes and the reporting of tax-related
assets and liabilities. The interpretation of tax laws can involve
uncertainty, since tax authorities may interpret such laws differently. Actual
income taxes could vary from estimated amounts and may result in favorable or
unfavorable impacts to net income, cash flows, and tax-related assets and
liabilities.
RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS
See Note 1 to the consolidated financial statements for a
discussion of recently issued accounting pronouncements.
INFLATION
IDACORP and Idaho Power believe that inflation has caused
and may continue to cause increases in certain operating expenses and the
replacement of assets at higher costs. Inflation affects the cost of labor,
products and services required for operations and maintenance and capital
expenditures. While inflation has not had a significant impact on IDACORPs or
Idaho Powers operations, increases in utility expenses due to inflation could
have an adverse effect on earnings because of the need to obtain regulatory
approval to recover such increased expenses.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
IDACORP and Idaho Power are exposed to market risks,
including changes in interest rates, changes in commodity prices, credit risk
and equity price risk. The following discussion summarizes these risks and the
financial instruments, derivative instruments and derivative commodity
instruments sensitive to changes in interest rates, commodity prices and equity
prices that were held at December 31, 2009.
Interest Rate Risk
IDACORP and Idaho Power manage interest expense and short-
and long-term liquidity through a combination of fixed rate and variable rate
debt. Generally, the amount of each type of debt is managed through market
issuance, but interest rate swap and cap agreements with highly
rated
financial institutions may be used to achieve the desired combination.
Variable Rate Debt:
As of December 31, 2009, IDACORP
and Idaho Power had $43 million and $5 million, respectively, in floating rate
debt net of temporary cash investments. Assuming no change in financial
structure for either company, if variable interest rates were one percentage
point higher than the rates in effect on December 31, 2009, interest rate
expense would increase and pre-tax earnings would decrease by approximately
$0.4 million for IDACORP and $0.1 million for Idaho Power.
Fixed Rate Debt:
As of December 31, 2009, IDACORP
and Idaho Power each had $1.4 billion in fixed rate debt, with a fair market
value also equal to $1.4 billion. These instruments are fixed rate and,
therefore, do not expose the companies to a loss in earnings due to changes in
market interest rates. However, the fair value of these instruments would
increase by approximately $131 million for both IDACORP and Idaho Power if
interest rates were to decline by one percentage point from their December 31,
2009 levels.
Commodity Price Risk
Utility:
Idaho Powers exposure to changes in
commodity price is related to its ongoing utility operations producing
electricity to meet the demand of its retail electric customers. The weather
is a major uncontrollable factor affecting the local and regional demand for
electricity and the availability and cost of production. The objective of
Idaho Powers energy purchase and sale activity is to meet the demand of retail
electric customers, maintain appropriate physical reserves to ensure
reliability, and make economic use of temporary surpluses that may develop.
61
Idaho Powers exposure to commodity price risk is largely
offset by the previously discussed power cost adjustment mechanisms in Idaho
and Oregon. Idaho Power has adopted a risk management program designed to
reduce exposure to power supply cost-related uncertainty, further mitigating
commodity price risk. This program has been reviewed and accepted by the
IPUC. Idaho Powers Energy Risk Management Policy (the Policy) describes a
collaborative process with customers and regulators via a committee called the
Customer Advisory Group (CAG). The Risk Management Committee (RMC), comprised
of selected Idaho Power officers and other senior staff, oversees the risk
management program. The RMC is responsible for communicating the status of
risk management activities to the Idaho Power Board of Directors, and to the
CAG.
The Policy requires monitoring monthly volumetric
electricity position and total monthly dollar (net power supply cost) exposure
on a rolling 18-month forward view. The Power Supply business unit produces
and evaluates projections of the operating plan and orders risk mitigating
actions dictated by the limits stated in the Policy. The RMC evaluates the
actions initiated by Power Supply for consistency and compliance with the
Policy. Idaho Power representatives meet with the CAG at least annually to
assess effectiveness of the limits. Changes to the limits can be endorsed by
the CAG and referred to the Board of Directors for approval. The primary tools
for risk mitigation are physical and financial forward power transactions and
fueling alternatives for utility-owned generation resources.
Credit Risk
Utility:
Idaho Power is subject to credit risk based
on its activity with market counterparties. Idaho Power is exposed to this
risk to the extent that a counterparty may fail to fulfill a contractual
obligation to provide energy, purchase energy or complete financial settlement
for market activities. Idaho Power mitigates this exposure by actively
establishing credit limits, measuring, monitoring, reporting, using appropriate
contractual arrangements and transferring of credit risk through the use of
financial guarantees, cash or letters of credit. A current list of acceptable
counterparties and credit limits is maintained.
The use of performance assurance collateral in the form of
cash, letters of credit, or guarantees is common industry practice. Idaho Power
maintains margin agreements that allow performance assurance collateral to be
requested and/or posted with certain counterparties. As of December 31, 2009,
Idaho Power had posted approximately $1.3 million of assurance collateral.
Should Idaho Power experience a reduction in its credit rating on Idaho Powers
unsecured debt to below investment grade, Idaho Power could be subject to
additional requests by its wholesale counterparties to post additional
performance assurance collateral. Counterparties to derivative instruments
could request immediate payment or demand immediate ongoing full daily
collateralization on derivative instruments in net liability positions. Based
upon Idaho Powers current energy and fuel portfolio and current market
conditions as of December 31, 2009, the approximate amount of additional
collateral that could be requested upon a downgrade is approximately $16
million. Idaho Power actively monitors the portfolio exposure and the
potential exposure to additional requests for performance assurance collateral
calls, through sensitivity analysis, to minimize capital requirements.
Credit risk for Idaho Powers retail customers is managed by
credit and collection policies that are governed by rules issued by the IPUC.
Idaho Power is obligated to provide service to all electric customers within
its service area. Idaho Power records a provision for uncollectible accounts,
based upon historical experience, to provide for the potential loss from
nonpayment by these customers. Idaho Power will continue to monitor the impact
of the current economic conditions on nonpayment from customers and will make
any necessary adjustments to its provision for uncollectible accounts.
Idaho administrative code for utility customer relations
rules prohibits Idaho Power from terminating electric service during the months
of December through February to any residential customer who declares that he
or she is unable to pay in full for utility service and whose household
includes children, elderly or infirm persons. Idaho Powers provision for
uncollectible accounts could be affected by changes in future prices as well as
changes in IPUC regulations.
Equity Price Risk
IDACORP and Idaho Power are exposed to price fluctuations in
equity markets, primarily through their pension plan assets, a mine reclamation
trust fund owned by an equity-method investment of Idaho Power and other equity
investments at Idaho Power. As a result of market increases in 2009, the fair
value of the pension plans assets increased; however, increases in the benefit
obligation were greater than the increases in the pension plans assets,
therefore resulting in an increase in future amounts required to be contributed
to the plan. Based on current laws, Idaho Power estimates that the minimum
contribution to Idaho Powers pension plan in 2010 will be $5.8 million.
A hypothetical ten percent decrease in equity prices would
result in an approximate $1.9 million decrease in the fair value of financial
instruments that are classified as available-for-sale securities.
62
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
INDEX TO FINANCIAL STATEMENTS AND FINANCIAL STATEMENT SCHEDULES
|
PAGE |
|
Consolidated Financial Statements: |
|
|
|
|
|
IDACORP, Inc. |
|
|
Consolidated Statements of Income for the Years Ended December 31, 2009, 2008 and 2007 |
64 |
|
Consolidated Balance Sheets as of December 31, 2009 and 2008 |
65-66 |
|
Consolidated Statements of Cash Flows for the Years Ended December 31, 2009, 2008 and 2007 |
67 |
|
Consolidated Statements of Equity for the Years Ended December 31, 2009, 2008 |
|
|
|
and 2007 |
68 |
Consolidated Statements of Comprehensive Income for the Years Ended December 31, 2009, |
|
|
|
2008 and 2007 |
69 |
|
|
|
Idaho Power Company |
|
|
Consolidated Statements of Income for the Years Ended December 31, 2009, 2008 and 2007 |
70 |
|
Consolidated Balance Sheets as of December 31, 2009 and 2008 |
71-72 |
|
Consolidated Statements of Capitalization as of December 31, 2009 and 2008 |
73 |
|
Consolidated Statements of Cash Flows for the Years Ended December 31, 2009, 2008 and 2007 |
74 |
|
Consolidated Statements of Retained Earnings for the Years Ended December 31, 2009, 2008 |
|
|
|
and 2007 |
75 |
Consolidated Statements of Comprehensive Income for the Years Ended December 31, 2009, |
|
|
|
2008 and 2007 |
75 |
|
|
|
76-118 |
||
119-120 |
||
|
|
|
|
|
|
Supplemental Financial Information and Consolidated Financial Statement Schedules |
|
|
|
|
|
121 |
||
|
|
|
Financial Statement Schedules for the Years Ended December 31, 2009, 2008 and 2007: |
|
|
Schedule I - Condensed Financial Information of Registrant-IDACORP, Inc. |
137-139 |
|
Schedule II -Consolidated Valuation and Qualifying Accounts-IDACORP, Inc. |
140 |
|
Schedule II -Consolidated Valuation and Qualifying Accounts-Idaho Power Company |
141 |
|
|
|
63
IDACORP, Inc.
Consolidated Statements of Income
Year Ended December 31, |
|||||||
|
2009 |
2008 |
2007 |
||||
(thousands of dollars except |
|||||||
for per share amounts) |
|||||||
Operating Revenues: |
|||||||
Electric utility: |
|||||||
General business |
$ |
883,765 |
$ |
784,311 |
$ |
668,303 |
|
Off-system sales |
94,373 |
121,429 |
154,948 |
||||
Other revenues |
67,858 |
50,336 |
52,150 |
||||
Total electric utility revenues |
1,045,996 |
956,076 |
875,401 |
||||
Other |
3,804 |
4,338 |
3,993 |
||||
Total operating revenues |
1,049,800 |
960,414 |
879,394 |
||||
Operating Expenses: |
|||||||
Electric utility: |
|||||||
Purchased power |
160,569 |
231,137 |
289,484 |
||||
Fuel expense |
149,566 |
149,403 |
134,322 |
||||
Third-party transmission expense |
6,629 |
7,250 |
10,470 |
||||
Power cost adjustment |
66,710 |
(47,413) |
(121,131) |
||||
Other operations and maintenance |
293,111 |
286,779 |
276,040 |
||||
Energy efficiency programs |
31,821 |
18,880 |
13,487 |
||||
Gain on sale of emission allowances |
(298) |
(504) |
(2,754) |
||||
Depreciation |
110,626 |
102,086 |
103,072 |
||||
Taxes other than income taxes |
21,069 |
19,083 |
17,634 |
||||
Total electric utility expenses |
839,803 |
766,701 |
720,624 |
||||
Other expense |
6,414 |
3,046 |
6,692 |
||||
Total operating expenses |
846,217 |
769,747 |
727,316 |
||||
Operating Income (Loss): |
|||||||
Electric utility |
206,193 |
189,375 |
154,777 |
||||
Other |
(2,610) |
1,292 |
(2,699) |
||||
Total operating income |
203,583 |
190,667 |
152,078 |
||||
Other Income |
21,064 |
11,861 |
20,524 |
||||
Losses of Unconsolidated Equity-Method Investments |
(1,033) |
(3,997) |
(4,824) |
||||
Other Expense |
4,067 |
8,030 |
8,903 |
||||
Interest Expense: |
|||||||
Interest on long-term debt |
73,371 |
67,251 |
59,961 |
||||
Other interest expense, net of AFUDC |
(561) |
5,805 |
3,380 |
||||
Total interest expense |
72,810 |
73,056 |
63,341 |
||||
Income Before Income Taxes |
146,737 |
117,445 |
95,534 |
||||
Income Tax Expense |
22,362 |
19,200 |
13,731 |
||||
Income from Continuing Operations |
124,375 |
98,245 |
81,803 |
||||
Income from Discontinued Operations, attributable to |
|||||||
IDACORP, Inc., net of tax |
- |
- |
67 |
||||
Net Income |
124,375 |
98,245 |
81,870 |
||||
Adjustment for (income) loss attributable to noncontrolling interests |
(25) |
169 |
469 |
||||
Net Income Attributable to IDACORP, Inc. |
$ |
124,350 |
$ |
98,414 |
$ |
82,339 |
|
Weighted Average Common Shares Outstanding - Basic (000s) |
47,124 |
45,268 |
44,291 |
||||
Weighted Average Common Shares Outstanding - Diluted (000s) |
47,182 |
45,379 |
44,365 |
||||
Earnings Per Share of Common Stock (basic and diluted): |
|||||||
Earnings Attributable to IDACORP, Inc. Continuing Operations |
$ |
2.64 |
$ |
2.17 |
$ |
1.86 |
|
Earnings Attributable to IDACORP, Inc. Discontinued Operations |
- |
- |
- |
||||
Earnings Attributable to IDACORP Inc. |
$ |
2.64 |
$ |
2.17 |
$ |
1.86 |
|
Dividends Paid Per Share of Common Stock |
$ |
1.20 |
$ |
1.20 |
$ |
1.20 |
|
The accompanying notes are an integral part of these statements. |
|||||||
64
IDACORP, Inc.
|
December 31, |
|||
|
2009 |
2008 |
||
Assets |
(thousands of dollars) |
|||
Current Assets: |
||||
Cash and cash equivalents |
$ |
52,987 |
$ |
8,828 |
Receivables: |
||||
Customer |
76,792 |
64,733 |
||
Other |
12,995 |
10,439 |
||
Allowance for uncollectible accounts |
(2,878) |
(1,724) |
||
Taxes receivable |
- |
18,111 |
||
Accrued unbilled revenues |
51,272 |
43,934 |
||
Materials and supplies (at average cost) |
48,054 |
50,121 |
||
Fuel stock (at average cost) |
25,634 |
16,852 |
||
Prepayments |
11,111 |
10,059 |
||
Deferred income taxes |
31,773 |
37,550 |
||
Other |
2,666 |
7,381 |
||
Total current assets |
310,406 |
266,284 |
||
|
||||
Investments |
195,298 |
198,552 |
||
|
||||
Property, Plant and Equipment: |
||||
Utility plant in service |
4,160,178 |
4,030,134 |
||
Accumulated provision for depreciation |
(1,558,538) |
(1,505,120) |
||
Utility plant in service - net |
2,601,640 |
2,525,014 |
||
Construction work in progress |
289,188 |
207,662 |
||
Utility plant held for future use |
7,151 |
6,318 |
||
Other property, net of accumulated depreciation |
19,029 |
19,171 |
||
Property, plant and equipment - net |
2,917,008 |
2,758,165 |
||
|
||||
Other Assets: |
||||
American Falls and Milner water rights |
24,226 |
26,332 |
||
Company-owned life insurance |
26,654 |
29,482 |
||
Regulatory assets |
720,401 |
696,332 |
||
Long-term receivables (net of allowance of $2,157 and $2,478, respectively) |
4,217 |
4,012 |
||
Other |
40,517 |
43,686 |
||
Total other assets |
816,015 |
799,844 |
||
Total |
$ |
4,238,727 |
$ |
4,022,845 |
|
||||
The accompanying notes are an integral part of these statements. |
65
IDACORP, Inc.
Consolidated Balance Sheets
|
December 31, |
|||
|
2009 |
2008 |
||
Liabilities and Equity |
(thousands of dollars) |
|||
Current Liabilities: |
||||
Current maturities of long-term debt |
$ |
9,340 |
$ |
86,528 |
Notes payable |
53,750 |
151,250 |
||
Accounts payable |
83,818 |
96,785 |
||
Taxes accrued |
10,184 |
- |
||
Interest accrued |
20,056 |
16,727 |
||
Other |
41,081 |
44,378 |
||
Total current liabilities |
218,229 |
395,668 |
||
|
||||
Other Liabilities: |
||||
Deferred income taxes |
574,450 |
515,719 |
||
Regulatory liabilities |
287,780 |
276,266 |
||
Other |
346,994 |
344,870 |
||
Total other liabilities |
1,209,224 |
1,136,855 |
||
|
||||
Long-Term Debt |
1,409,730 |
1,183,451 |
||
|
||||
Commitments and Contingencies |
||||
Equity: |
||||
IDACORP, Inc. shareholders equity: |
||||
Common stock, no par value (shares authorized 120,000,000; |
||||
47,925,882 and 46,929,203 shares issued, respectively) |
756,475 |
729,576 |
||
Retained earnings |
649,180 |
581,605 |
||
Accumulated other comprehensive loss |
(8,267) |
(8,707) |
||
Treasury stock (29,191 and 9,022 shares at cost, respectively) |
(53) |
(37) |
||
Total IDACORP, Inc. shareholders equity |
1,397,335 |
1,302,437 |
||
Noncontrolling interest |
4,209 |
4,434 |
||
Total equity |
1,401,544 |
1,306,871 |
||
Total |
$ |
4,238,727 |
$ |
4,022,845 |
The accompanying notes are an integral part of these statements. |
66
IDACORP, Inc.
Consolidated Statements of Cash Flows
67
IDACORP, Inc.
Consolidated Statements of Equity
Year Ended December 31, |
||||||
|
2009 |
2008 |
2007 |
|||
|
(thousands of dollars) |
|||||
Common Stock |
||||||
Balance at beginning of year |
$ |
729,576 |
$ |
675,774 |
$ |
638,799 |
Issued |
24,328 |
50,863 |
37,181 |
|||
Other |
2,571 |
2,939 |
(206) |
|||
Balance at end of year |
756,475 |
729,576 |
675,774 |
|||
|
|
|||||
Retained Earnings |
||||||
Balance at beginning of year |
581,605 |
537,699 |
493,363 |
|||
Net Income Attributable to IDACORP, Inc. |
124,350 |
98,414 |
82,339 |
|||
Common stock dividends ($1.20 per share) |
(56,776) |
(54,508) |
(53,138) |
|||
Adjustment upon adoption of ASC 740 |
- |
- |
15,136 |
|||
Other |
1 |
- |
(1) |
|||
Balance at end of year |
649,180 |
581,605 |
537,699 |
|||
|
|
|||||
Accumulated Other Comprehensive Income (Loss) |
||||||
Balance at beginning of year |
(8,707) |
(6,156) |
(5,737) |
|||
Unrealized gain (loss) on securities (net of tax) |
1,820 |
(568) |
(743) |
|||
Unfunded pension liability adjustment (net of tax) |
(1,380) |
(1,983) |
324 |
|||
Balance at end of year |
(8,267) |
(8,707) |
(6,156) |
|||
|
|
|||||
Treasury Stock |
||||||
Balance at beginning of year |
(37) |
(2) |
(2,242) |
|||
Issued |
1,425 |
99 |
330 |
|||
Acquired |
(1,441) |
(304) |
(346) |
|||
Other |
- |
170 |
2,256 |
|||
Balance at end of year |
(53) |
(37) |
(2) |
|||
Total IDACORP, Inc. shareholders equity at end of year |
1,397,335 |
1,302,437 |
1,207,315 |
|||
|
|
|||||
Noncontrolling interests |
||||||
Balance at beginning of year |
4,434 |
4,478 |
5,062 |
|||
Net Income (Loss) attributed to noncontrolling interest |
25 |
(169) |
(469) |
|||
Other |
(250) |
125 |
(115) |
|||
Balance at end of year |
4,209 |
4,434 |
4,478 |
|||
Total equity at end of year |
$ |
1,401,544 |
$ |
1,306,871 |
$ |
1,211,793 |
The accompanying notes are an integral part of these statements. |
68
IDACORP, Inc.
Consolidated Statements of Comprehensive Income
Year Ended December 31, |
|||||||
|
2009 |
2008 |
2007 |
||||
(thousands of dollars) |
|||||||
Net Income |
$ |
124,375 |
$ |
98,245 |
$ |
81,870 |
|
Other Comprehensive Income (Loss): |
|||||||
Unrealized gains (losses) on securities: |
|||||||
Net unrealized holding gains (losses) arising during the period, |
|||||||
net of tax of $1,169, ($3,034) and $114 |
1,820 |
(4,727) |
179 |
||||
Reclassification adjustment for losses (gains) included |
|||||||
in net income, net of tax of $0, $2,670 and ($592) |
- |
4,159 |
(922) |
||||
Net unrealized gains (losses) |
1,820 |
(568) |
(743) |
||||
Unfunded pension liability adjustment, net of tax |
|||||||
of ($885), ($1,273) and $208 |
(1,380) |
(1,983) |
324 |
||||
Total Comprehensive Income |
124,815 |
95,694 |
81,451 |
||||
Comprehensive (income) loss attributable to noncontrolling interests |
(25) |
169 |
469 |
||||
Comprehensive Income attributable to IDACORP, Inc. common |
|
|
|
||||
shareholders |
$ |
124,790 |
$ |
95,863 |
$ |
81,920 |
|
The accompanying notes are an integral part of these statements. |
|||||||
69
Idaho Power Company
Consolidated Statements of Income
Year Ended December 31, |
||||||
|
2009 |
2008 |
2007 |
|||
(thousands of dollars) |
||||||
Operating Revenues: |
||||||
General business |
$ |
883,765 |
$ |
784,311 |
$ |
668,303 |
Off-system sales |
94,373 |
121,429 |
154,948 |
|||
Other revenues |
67,858 |
50,336 |
52,150 |
|||
Total operating revenues |
1,045,996 |
956,076 |
875,401 |
|||
Operating Expenses: |
||||||
Operation: |
||||||
Purchased power |
160,569 |
231,137 |
289,484 |
|||
Fuel expense |
149,566 |
149,403 |
134,322 |
|||
Third-party transmission expense |
6,629 |
7,250 |
10,470 |
|||
Power cost adjustment |
66,710 |
(47,413) |
(121,131) |
|||
Other |
223,652 |
218,140 |
207,877 |
|||
Energy efficiency programs |
31,821 |
18,880 |
13,487 |
|||
Gain on sale of emission allowances |
(298) |
(504) |
(2,754) |
|||
Maintenance |
69,459 |
68,639 |
68,163 |
|||
Depreciation |
110,626 |
102,086 |
103,072 |
|||
Taxes other than income taxes |
21,069 |
19,083 |
17,634 |
|||
Total operating expenses |
839,803 |
766,701 |
720,624 |
|||
Income from Operations |
206,193 |
189,375 |
154,777 |
|||
Other Income (Expense): |
||||||
Allowance for equity funds used during construction |
7,555 |
3,141 |
5,995 |
|||
Earnings of unconsolidated equity-method investments |
8,256 |
6,772 |
5,553 |
|||
Other income |
13,020 |
8,174 |
12,636 |
|||
Other expense |
(5,012) |
(6,262) |
(8,215) |
|||
Total other income |
23,819 |
11,825 |
15,969 |
|||
Interest Charges: |
||||||
Interest on long-term debt |
73,270 |
66,145 |
58,097 |
|||
Other interest |
4,060 |
10,420 |
8,281 |
|||
Allowance for borrowed funds used during construction |
(5,398) |
(7,080) |
(7,597) |
|||
Total interest charges |
71,932 |
69,485 |
58,781 |
|||
Income Before Income Taxes |
158,080 |
131,715 |
111,965 |
|||
Income Tax Expense |
35,521 |
37,600 |
35,386 |
|||
Net Income |
$ |
122,559 |
$ |
94,115 |
$ |
76,579 |
The accompanying notes are an integral part of these statements. |
70
Idaho Power Company
|
December 31, |
|||
|
2009 |
2008 |
||
Assets |
(thousands of dollars) |
|||
Electric Plant: |
||||
In service (at original cost) |
$ |
4,160,178 |
$ |
4,030,134 |
Accumulated provision for depreciation |
(1,558,538) |
(1,505,120) |
||
In service - net |
2,601,640 |
2,525,014 |
||
Construction work in progress |
289,188 |
207,662 |
||
Held for future use |
7,151 |
6,318 |
||
Electric plant - net |
2,897,979 |
2,738,994 |
||
|
||||
Investments and Other Property |
108,299 |
106,057 |
||
|
||||
Current Assets: |
||||
Cash and cash equivalents |
21,625 |
3,141 |
||
Receivables: |
||||
Customer |
76,792 |
64,433 |
||
Other |
10,648 |
7,947 |
||
Allowance for uncollectible accounts |
(1,990) |
(1,724) |
||
Taxes receivable |
3,585 |
41,363 |
||
Accrued unbilled revenues |
51,272 |
43,934 |
||
Materials and supplies (at average cost) |
48,054 |
50,121 |
||
Fuel stock (at average cost) |
25,634 |
16,852 |
||
Prepayments |
10,960 |
9,865 |
||
Deferred income taxes |
7,887 |
3,852 |
||
Other |
2,115 |
4,968 |
||
Total current assets |
256,582 |
244,752 |
||
Deferred Debits: |
||||
American Falls and Milner water rights |
24,226 |
26,332 |
||
Company-owned life insurance |
26,654 |
29,482 |
||
Regulatory assets |
720,401 |
696,332 |
||
Other |
39,249 |
42,907 |
||
Total deferred debits |
810,530 |
795,053 |
||
Total |
$ |
4,073,390 |
$ |
3,884,856 |
The accompanying notes are an integral part of these statements. |
71
Idaho Power Company
Consolidated Balance Sheets
|
December 31, |
|||
|
2009 |
2008 |
||
Capitalization and Liabilities |
(thousands of dollars) |
|||
Capitalization: |
||||
Common stock equity: |
||||
Common stock, $2.50 par value (50,000,000 shares |
||||
authorized; 39,150,812 shares outstanding) |
$ |
97,877 |
$ |
97,877 |
Premium on capital stock |
638,758 |
618,758 |
||
Capital stock expense |
(2,097) |
(2,097) |
||
Retained earnings |
547,695 |
482,047 |
||
Accumulated other comprehensive loss |
(8,267) |
(8,707) |
||
Total common stock equity |
1,273,966 |
1,187,878 |
||
Long-term debt |
1,409,730 |
1,180,691 |
||
Total capitalization |
2,683,696 |
2,368,569 |
||
|
||||
Current Liabilities: |
||||
Long-term debt due within one year |
1,064 |
81,064 |
||
Notes payable |
- |
112,850 |
||
Accounts payable |
83,128 |
96,268 |
||
Notes and accounts payable to related parties |
1,736 |
768 |
||
Interest accrued |
20,056 |
16,675 |
||
Other |
40,002 |
43,274 |
||
Total current liabilities |
145,986 |
350,899 |
||
|
||||
Deferred Credits: |
||||
Deferred income taxes |
611,749 |
547,159 |
||
Regulatory liabilities |
287,780 |
276,266 |
||
Other |
344,179 |
341,963 |
||
Total deferred credits |
1,243,708 |
1,165,388 |
||
|
||||
Commitments and Contingencies |
||||
Total |
$ |
4,073,390 |
$ |
3,884,856 |
The accompanying notes are an integral part of these statements. |
72
Idaho Power Company
Consolidated Statements of Capitalization
December 31, |
December 31, |
|||||
|
2009 |
% |
2008 |
% |
||
(thousands of dollars) |
||||||
Common Stock Equity: |
||||||
Common stock |
$ |
97,877 |
$ |
97,877 |
||
Premium on capital stock |
638,758 |
618,758 |
||||
Capital stock expense |
(2,097) |
(2,097) |
||||
Retained earnings |
547,695 |
482,047 |
||||
Accumulated other comprehensive loss |
(8,267) |
|
(8,707) |
|
||
Total common stock equity |
1,273,966 |
47 |
1,187,878 |
50 |
||
Long-Term Debt: |
||||||
First mortgage bonds: |
||||||
7.20% Series due 2009 |
- |
80,000 |
||||
6.60% Series due 2011 |
120,000 |
120,000 |
||||
4.75% Series due 2012 |
100,000 |
100,000 |
||||
4.25% Series due 2013 |
70,000 |
70,000 |
||||
6.025% Series due 2018 |
120,000 |
120,000 |
||||
6.15% Series due 2019 |
100,000 |
- |
||||
4.50% Series due 2020 |
130,000 |
- |
||||
6 % Series due 2032 |
100,000 |
100,000 |
||||
5.50% Series due 2033 |
70,000 |
70,000 |
||||
5.50% Series due 2034 |
50,000 |
50,000 |
||||
5.875% Series due 2034 |
55,000 |
55,000 |
||||
5.30% Series due 2035 |
60,000 |
60,000 |
||||
6.30% Series due 2037 |
140,000 |
140,000 |
||||
6.25% Series due 2037 |
100,000 |
|
100,000 |
|
||
Total first mortgage bonds |
1,215,000 |
|
1,065,000 |
|
||
Amount due within one year |
- |
|
(80,000) |
|
||
Net first mortgage bonds |
1,215,000 |
|
985,000 |
|
||
Pollution control revenue bonds: |
||||||
5.15% Series due 2024 |
49,800 |
- |
||||
5.25% Series due 2026 |
116,300 |
- |
||||
Variable Rate Series 2003 due 2024 |
- |
49,800 |
||||
Variable Rate Series 2006 due 2026 |
- |
116,300 |
||||
Variable Rate Series 2000 due 2027 |
4,360 |
4,360 |
||||
Total pollution control revenue bonds |
170,460 |
|
170,460 |
|
||
American Falls bond guarantee |
19,885 |
19,885 |
||||
Milner Dam note guarantee |
8,509 |
9,573 |
||||
Note guarantee due within one year |
(1,064) |
(1,064) |
||||
Unamortized premium/discount - net |
(3,060) |
(3,163) |
||||
Term Loan Credit Facility |
- |
166,100 |
||||
Purchase of pollution control revenue bonds |
- |
|
(166,100) |
|
||
Total long-term debt |
1,409,730 |
53 |
1,180,691 |
50 |
||
Total Capitalization |
$ |
2,683,696 |
100 |
$ |
2,368,569 |
100 |
The accompanying notes are an integral part of these statements. |
73
Idaho Power Company
Consolidated Statements of Cash Flows
Year Ended December 31, |
||||||
2009 |
2008 |
2007 |
||||
(thousands of dollars) |
||||||
Operating Activities: |
||||||
Net income |
$ |
122,559 |
$ |
94,115 |
$ |
76,579 |
Adjustments to reconcile net income to net cash provided by |
|
|||||
operating activities: |
||||||
Depreciation and amortization |
117,878 |
109,047 |
107,500 |
|||
Deferred income taxes and investment tax credits |
15,082 |
25,614 |
36,258 |
|||
Changes in regulatory assets and liabilities |
57,836 |
(64,068) |
(128,089) |
|||
Non-cash pension expense |
4,025 |
3,513 |
6,868 |
|||
Earnings of equity method investments |
(8,256) |
(6,772) |
(5,553) |
|||
Distributions from equity method investments |
10,720 |
- |
- |
|||
Gain on sale of assets |
(451) |
(3,460) |
(4,589) |
|||
Other non-cash adjustments to net income |
(1,455) |
5,102 |
(5,660) |
|||
Change in: |
||||||
Accounts receivables and prepayments |
(14,828) |
(2,462) |
(13,298) |
|||
Accounts payable |
(28,212) |
16,728 |
3,654 |
|||
Taxes receivable (accrued) |
38,003 |
(43,608) |
(12,862) |
|||
Other current assets |
(14,053) |
(14,055) |
(11,234) |
|||
Other current liabilities |
(7,438) |
(6,130) |
15,751 |
|||
Other assets |
1,475 |
1,492 |
2,147 |
|||
Other liabilities |
(20,521) |
4,487 |
14,000 |
|||
Net cash provided by operating activities |
272,364 |
119,543 |
81,472 |
|||
Investing Activities: |
||||||
Additions to utility plant |
(251,937) |
(243,544) |
(287,219) |
|||
Proceeds from the sale of non-utility assets |
2,250 |
5,785 |
- |
|||
Purchase of available-for-sale securities |
- |
- |
(24,349) |
|||
Proceeds from the sale of available-for-sale securities |
- |
- |
26,110 |
|||
Proceeds from sale of emission allowances |
2,382 |
2,959 |
19,846 |
|||
Investments in unconsolidated affiliates |
- |
(3,210) |
(8,675) |
|||
Withdrawal (refundable deposit) for tax related liabilities |
- |
43,927 |
(43,927) |
|||
Other |
1,171 |
(3,349) |
(263) |
|||
Net cash used in investing activities |
(246,134) |
(197,432) |
(318,477) |
|||
Financing Activities: |
||||||
(Decrease) increase in term loans |
(170,000) |
170,000 |
- |
|||
Issuance of long-term debt |
230,000 |
120,000 |
240,000 |
|||
Remarketing (purchase) of pollution control revenue bonds |
166,100 |
(166,100) |
- |
|||
Retirement of long-term debt |
(81,064) |
(1,064) |
(81,064) |
|||
Dividends on common stock |
(56,911) |
(54,368) |
(53,491) |
|||
Net change in short term borrowings |
(108,950) |
(27,635) |
84,385 |
|||
Capital contribution from parent |
20,000 |
37,000 |
51,000 |
|||
Other |
(6,921) |
(2,150) |
(882) |
|||
Net cash (used in) provided by financing activities |
(7,746) |
75,683 |
239,948 |
|||
Net increase (decrease) in cash and cash equivalents |
18,484 |
(2,206) |
2,943 |
|||
Cash and cash equivalents at beginning of the year |
3,141 |
5,347 |
2,404 |
|||
Cash and cash equivalents at end of the year |
$ |
21,625 |
$ |
3,141 |
$ |
5,347 |
Supplemental Disclosure of Cash Flow Information: |
||||||
Cash paid during the year for: |
||||||
Income taxes (received from) paid to parent |
$ |
(13,756) |
$ |
36,053 |
$ |
2,877 |
Interest (net of amount capitalized) |
$ |
66,231 |
$ |
63,448 |
$ |
57,355 |
Non-cash investing activities: |
||||||
Additions to property, plant and equipment in accounts payable |
$ |
19,075 |
$ |
14,194 |
$ |
13,210 |
The accompanying notes are an integral part of these statements. |
74
Idaho Power Company
Consolidated Statements of Retained Earnings
Year Ended December 31, |
||||||
|
2009 |
2008 |
2007 |
|||
(thousands of dollars) |
||||||
Retained Earnings, Beginning of Year |
$ |
482,047 |
$ |
442,300 |
$ |
404,076 |
Net Income |
122,559 |
94,115 |
76,579 |
|||
Cumulative effect of accounting change (adoption of FIN 48) |
- |
- |
15,136 |
|||
Dividends on common stock |
(56,911) |
(54,368) |
(53,491) |
|||
Retained Earnings, End of Year |
$ |
547,695 |
$ |
482,047 |
$ |
442,300 |
The accompanying notes are an integral part of these statements. |
Idaho Power Company
Consolidated Statements Comprehensive Income
Year Ended December 31, |
||||||
|
2009 |
2008 |
2007 |
|||
(thousands of dollars) |
||||||
Net Income |
$ |
122,559 |
$ |
94,115 |
$ |
76,579 |
Other Comprehensive Income (Loss): |
||||||
Unrealized gains (losses) on securities: |
||||||
Net unrealized holding gains (losses) arising during the period, |
||||||
net of tax of $1,169, ($3,034) and $114 |
1,820 |
(4,727) |
179 |
|||
Reclassification adjustment for losses (gains) included |
||||||
in net income, net of tax of $0, $2,670 and ($592) |
- |
4,159 |
(922) |
|||
Net unrealized gains (losses) |
1,820 |
(568) |
(743) |
|||
Unfunded pension liability adjustment, net of tax |
||||||
of ($885), ($1,273) and $208 |
(1,380) |
(1,983) |
324 |
|||
Total Comprehensive Income |
$ |
122,999 |
$ |
91,564 |
$ |
76,160 |
The accompanying notes are an integral part of these statements. |
75
IDACORP, INC. AND Idaho POWER COMPANY
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
This Annual Report on Form 10-K is a combined report of
IDACORP, Inc. (IDACORP) and Idaho Power Company (Idaho Power). Therefore, the
Notes to the Consolidated Financial Statements apply to both IDACORP and Idaho
Power. However, Idaho Power makes no representation as to the information
relating to IDACORPs other operations.
Nature of Business
IDACORP is a holding company formed in 1998 whose principal
operating subsidiary is Idaho Power. IDACORP is subject to the provisions of
the Public Utility Holding Company Act of 2005, which provides certain access
to books and records to the Federal Energy Regulatory Commission (FERC) and
state utility regulatory commissions and imposes certain record retention and
reporting requirements on IDACORP.
Idaho Power is an electric utility with a service territory
covering approximately 24,000 square miles in southern Idaho and eastern
Oregon. Idaho Power is regulated by the FERC and the state regulatory
commissions of Idaho and Oregon. Idaho Power is the parent of Idaho Energy
Resources Co. (IERCo), a joint venturer in Bridger Coal Company, which supplies
coal to the Jim Bridger generating plant owned in part by Idaho Power.
IDACORPs other subsidiaries include:
IDACORP Financial Services, Inc. (IFS), an investor in affordable housing and other real estate investments;
Ida-West Energy Company (Ida-West), an operator of small hydroelectric generation projects that satisfy the requirements of the Public Utility Regulatory Policies Act of 1978 (PURPA); and
IDACORP Energy (IE), a marketer of energy commodities, which wound down operations in 2003.
In the second quarter of 2006, IDACORP management designated
the operations of IDACOMM, Inc. (IDACOMM) as assets held for sale, as defined
by accounting principles generally accepted in the United States of America
(GAAP), and IDACOMM was sold in February 2007. IDACORPs consolidated
financial statements reflect the reclassification of the immaterial results of
IDACOMM as discontinued operations for all periods presented.
Principles of Consolidation
IDACORPs and Idaho Powers consolidated financial
statements include the accounts of each company, the subsidiaries that the
companies control, and any variable interest entities (VIEs) for which the
companies are the primary beneficiaries. All significant intercompany balances
have been eliminated in consolidation. Investments in subsidiaries that the
companies do not control and investments in VIEs for which the companies are
not the primary beneficiaries, but have the ability to exercise significant
influence over operating and financial policies, are accounted for using the
equity method of accounting.
The entities that IDACORP and Idaho Power consolidate
consist primarily of the wholly-owned subsidiaries discussed above. In
addition, IDACORP consolidates one VIE, Marysville Hydro Partners (Marysville),
which is a joint venture owned 50 percent by Ida-West and 50 percent by
Environmental Energy Company (EEC). Marysville has approximately $26 million
of assets, primarily a hydroelectric plant, and approximately $17 million of
intercompany long-term debt, which is eliminated in consolidation. EEC has
borrowed amounts from Ida-West to fund a portion of its required capital
contributions to Marysville. The loans are payable from EECs share of
distributions and are secured by the stock of EEC and EECs interest in
Marysville. Ida-West is the primary beneficiary because the ownership of the intercompany
note and the EEC note result in it absorbing a majority of the expected losses
of the entity. Creditors of Marysville have no recourse to the general credit
of IDACORP and there are no other arrangements that could require IDACORP to
provide financial support to Marysville or expose IDACORP to losses.
76
Prior to October 2008, IDACORP also consolidated IFS
limited partnership investment in Empire Development Company, LLC, (Empire) an
entity that earned historic tax credits through the rehabilitation of the
Empire Building in Boise, Idaho. In 2008 the partnership agreement for Empire
was amended and as a result of the amendment Empire no longer met the criteria
to be a VIE. Empire was deconsolidated and is now accounted for under the
equity method of accounting.
Through IFS, IDACORP also holds variable interests in VIEs
for which it is not the primary beneficiary. These VIEs are historic
rehabilitation and affordable housing developments in which IFS holds limited
partnership interests ranging from five to 99 percent. IFS does not absorb a
majority of the expected losses of these entities, either because of specific
provisions in the partnership agreements or due to not owning a majority
interest. These investments were acquired between 1996 and 2009. IFSs
maximum exposure to loss in these developments is limited to its net carrying
value, which was $78 million at December 31, 2009.
Management Estimates
Management makes estimates and assumptions when preparing
financial statements in conformity with GAAP. These estimates and assumptions
include those related to rate regulation, retirement benefits, contingencies,
litigation, asset impairment, income taxes, unbilled revenues and bad debt.
These estimates and assumptions affect the reported amounts of assets and
liabilities and the disclosure of contingent assets and liabilities at the date
of the financial statements, and the reported amounts of revenues and expenses
during the reporting period. These estimates involve judgments with respect to,
among other things, future economic factors that are difficult to predict and
are beyond managements control. As a result, actual results could differ from
those estimates.
Subsequent Events
Subsequent events were evaluated through February 23, 2010,
up to the time the financial statements were issued.
System of Accounts
The accounting records of Idaho Power conform to the Uniform
System of Accounts prescribed by the FERC and adopted by the public utility
commissions of Idaho, Oregon and Wyoming.
Regulation of Utility Operations
IDACORPs and Idaho Powers financial statements reflect the
effects of the different ratemaking principles followed by the jurisdictions
regulating Idaho Power. The application of accounting principles related to
regulated operations sometimes results in Idaho Power recording expenses and
revenues in a different period than when an unregulated enterprise would. In
these circumstances, the amounts are deferred as regulatory assets or
regulatory liabilities on the balance sheet and recorded on the income
statement when recovered or returned in rates. Additionally, regulators can
impose regulatory liabilities upon a regulated company for amounts previously
collected from customers and for amounts that are expected to be refunded to
customers. The effects of applying these accounting principles are discussed
in more detail in Note 3.
Cash and Cash Equivalents
Cash and cash equivalents include cash on hand and highly
liquid temporary investments that mature within three months of the date of
acquisition.
Derivative Financial Instruments
Financial instruments such as commodity futures, forwards,
options and swaps are used to manage exposure to commodity price risk in the
electricity market. All derivative instruments are recognized as either assets
or liabilities at fair value on the balance sheet. Idaho Powers physical
forward contracts qualify for the normal purchases and normal sales exception
to derivative accounting requirements with the exception of forward contracts for
the purchase of natural gas for use at Idaho Powers natural gas generation
facilities. The objective of the risk management program is to mitigate the
risk associated with the purchase and sale of electricity and natural gas.
Because of Idaho Powers regulatory accounting mechanisms, Idaho Power records
the changes in fair value of derivative instruments related to power supply as
regulatory assets or liabilities.
77
Revenues
Operating revenues for Idaho Power related to the sale of
energy are recorded when service is rendered or energy is delivered to
customers. Idaho Power accrues estimated unbilled revenues for electric
services delivered to customers but not yet billed at period-end. Idaho Power
collects franchise fees and similar taxes related to energy consumption. These
amounts are recorded as liabilities until paid to the taxing authority. None
of these collections are reported on the income statement as revenue or
expense. Beginning in February 2009, Idaho Power is collecting Allowance for
Funds Used During Construction (AFUDC) in base rates for a specific capital
project, as discussed in Note 3, Regulatory Matters. Cash collected under
this ratemaking mechanism is recorded as a regulatory liability.
Property, Plant and Equipment and Depreciation
The cost of utility plant in service represents the original
cost of contracted services, direct labor and material, AFUDC and indirect
charges for engineering, supervision and similar overhead items. Repair and
maintenance costs associated with planned major maintenance are expensed as the
costs are incurred, as are maintenance and repairs of property and replacements
and renewals of items determined to be less than units of property. For
utility property replaced or renewed, the original cost plus removal cost less
salvage is charged to accumulated provision for depreciation, while the cost of
related replacements and renewals is added to property, plant and equipment.
All utility plant in service is depreciated using the
straight-line method at rates approved by regulatory authorities. Annual
depreciation provisions as a percent of average depreciable utility plant in
service approximated 2.81 percent in 2009, 2.73 percent in 2008 and 2.95
percent in 2007.
Long-lived assets are periodically reviewed for impairment
when events or changes in circumstances indicate that the carrying amount of an
asset may not be recoverable. If the sum of the undiscounted expected future
cash flows from an asset is less than the carrying value of the asset, impairment
must be recognized in the financial statements. There were no material
impairments of these assets in 2008 or 2009.
Allowance for Funds Used During Construction
AFUDC represents the cost of financing construction projects
with borrowed funds and equity funds. With one exception, cash is not realized
currently from such allowance, it is realized under the rate-making process
over the service life of the related property through increased revenues
resulting from a higher rate base and higher depreciation expense. The
component of AFUDC attributable to borrowed funds is included as a reduction to
interest expense, while the equity component is included in other income.
Idaho Powers weighted-average monthly AFUDC rates for 2009, 2008 and 2007 were
6.7 percent, 5.2 percent and 6.8 percent, respectively. Idaho Powers
reductions to interest expense for AFUDC were $5 million for 2009, $7 million
for 2008 and $8 million for 2007. Other income included $8 million, $3 million
and $6 million of AFUDC for 2009, 2008 and 2007, respectively.
Income Taxes
IDACORP and Idaho Power account for income taxes under the
asset and liability method, which requires the recognition of deferred tax
assets and liabilities for the expected future tax consequences of events that
have been included in the financial statements. Under this method, deferred
tax assets and liabilities are determined based on the differences between the
financial statements and tax basis of assets and liabilities using enacted tax
rates in effect for the year in which the differences are expected to reverse.
The effect of a change in tax rates on deferred tax assets and liabilities is
recognized in income in the period that includes the enactment date.
Consistent with orders and directives of the Idaho Public
Utilities Commission (IPUC), the regulatory authority having principal
jurisdiction, Idaho Powers deferred income taxes (commonly referred to as
normalized accounting) are provided for the difference between income tax
depreciation and straight-line depreciation computed using book lives on
coal-fired generation facilities and properties acquired after 1980. On other
facilities, deferred income taxes are provided for the difference between
accelerated income tax depreciation and straight-line depreciation using tax
guideline lives on assets acquired prior to 1981 unless contrary to applicable
income tax guidance, deferred income taxes are not provided for those income
tax timing differences where the prescribed regulatory accounting methods do
not provide for current recovery in rates. Regulated enterprises are required
to recognize such adjustments as regulatory assets or liabilities if it is
probable that such amounts will be recovered from or returned to customers in
future rates.
The state of Idaho allows a three-percent investment tax
credit on qualifying plant additions. Investment tax credits earned on
regulated assets are deferred and amortized to income over the estimated
service lives of the related properties. Credits earned on non-regulated
assets or investments are recognized in the year earned.
Income taxes are discussed in more detail in Note 2.
78
Comprehensive Income
Comprehensive income includes net income, unrealized holding
gains and losses on available-for-sale marketable securities and amounts
related to a deferred compensation plan for certain senior management employees
and directors called the Senior Management Security Plan (SMSP).
The following table presents IDACORPs and Idaho Powers
accumulated other comprehensive loss balance at December 31 (net of tax):
|
2009 |
2008 |
|||
|
(thousands of dollars) |
||||
Unrealized holding gains on available-for-sale securities |
$ |
1,820 |
$ |
- |
|
Senior Management Security Plan |
|
(10,087) |
|
(8,707) |
|
|
Total |
$ |
(8,267) |
$ |
(8,707) |
|
|
|
|
|
|
Other Accounting Policies
Debt discount, expense and premium are deferred and being
amortized over the terms of the respective debt issues.
Reclassifications
Certain prior year amounts have been reclassified to conform
to the current year presentation. The reclassifications did not impact
IDACORPs and Idaho Powers net income or total equity, and include the
following:
Third-party transmission expense was broken out from electric utility other operations and maintenance in IDACORPs consolidated statements of income and from other operation in Idaho Powers consolidated statements of income because third-party transmission costs are now treated as a power supply cost in the power cost adjustment (PCA);
Employee notes current was combined with other current receivables and employee notes long-term was combined with other non-current assets in IDACORPs and Idaho Powers consolidated balance sheets due to the employee notes becoming an immaterial balance;
Uncertain tax positions was combined with other current liabilities in IDACORPs and Idaho Powers condensed consolidated balance sheets due to the uncertain tax positions becoming an immaterial balance;
2007 investments in affordable housing was combined with other in the investing section of IDACORPs consolidated statements of cash flows;
Excess tax benefit from share-based payment arrangements was combined with the change in taxes receivable (accrued) in the operating section and excess tax benefit from share-based payment arrangements was combined with other in the financing section of IDACORPs consolidated statements of cash flows;
Amortization of affordable housing was removed from depreciation and amortization and combined with undistributed earnings of subsidiaries; the total of which was then separated into losses of equity method investments and distributions from equity method investments in the operating section of IDACORPs consolidated statements of cash flows; and
Other assets was combined with other in the financing section of IDACORPs and Idaho Powers consolidated statements of cash flows.
New Accounting Pronouncements
In June 2009, the FASB issued amendments to prior
consolidation guidance. The amendments will significantly affect the overall
consolidation analysis of VIEs. The amendments will require IDACORP and Idaho
Power to reconsider their previous conclusions relating to the consolidation of
VIEs, including (1) whether an entity is a VIE, (2) whether the enterprise is
the VIEs primary beneficiary, and (3) what type of financial statement
disclosures are required. For IDACORP and Idaho Power, the amendments are
effective as of January 1, 2010, and early adoption is prohibited. The
adoption of this guidance is not expected to have a material effect on the
consolidated financial statements of IDACORP and Idaho Power.
Adopted Accounting Pronouncements
The FASB has issued several new accounting pronouncements. IDACORP and Idaho Power adopted these pronouncements in 2009:
79
Effective for financial statements issued for interim and annual periods ending after September 15, 2009, The FASB Accounting Standards Codification TM became the source of authoritative U.S. GAAP recognized by the FASB to be applied to nongovernmental entities. Rules and interpretive releases of the Securities and Exchange Commission (SEC) under authority of federal securities laws are also sources of authoritative GAAP to SEC registrants. On the effective date, the Codification superseded, but did not change, all then-existing non-SEC accounting and reporting standards, and all other nongrandfathered, non-SEC accounting literature not included in the Codification became nonauthoritative. Transition to the Codification did not affect IDACORPs or Idaho Powers results of operations, cash flows or financial positions. This Form 10-K reflects the implementation of the Codification.
On January 1, 2009, IDACORP and Idaho Power adopted guidance related to presentation of noncontrolling interests in consolidated subsidiaries (previously referred to as minority interests). This guidance clarified that noncontrolling interests should be reported as equity on the consolidated financial statements. IDACORP has disclosed in its financial statements the portion of equity and net income attributable to the noncontrolling interests in consolidated subsidiaries and has reclassified $4 million of noncontrolling interests from other liabilities to equity on the December 31, 2008, balance sheet. Idaho Power does not have any noncontrolling interests. The adoption of this guidance modifies financial statement presentation, but does not impact financial statement results.
In June 2009, IDACORP and Idaho Power adopted guidance on accounting for and disclosures of subsequent events, events that occur after the balance sheet date but before financial statements are issued or are available to be issued. This guidance has not significantly impacted IDACORPs or Idaho Powers consolidated financial statements.
Fair Value Measurements: In the first quarter of 2009, IDACORP and Idaho Power adopted the following fair value guidance:
o Guidelines for making fair value measurements more consistent by providing guidance related to determining fair values when there is no active market or where the price inputs being used represent distressed sales;
o Guidance that enhances consistency in financial reporting by increasing the frequency of fair value disclosures by requiring quarterly fair value disclosures for any financial instruments that are not currently reflected on the balance sheet of companies at fair value and requires qualitative and quantitative information about fair value estimates for all such financial instruments; and
o Guidance on other-than-temporary impairments that brings greater consistency to the timing of impairment recognition, and provides greater clarity to investors about the credit and noncredit components of impaired debt securities that are not expected to be sold. The guidance also requires increased and timelier disclosures sought by investors regarding expected cash flows, credit losses, and the aging of securities with unrealized losses.
The adoption of this guidance did not have a material effect on IDACORPs or Idaho Powers consolidated financial statements.
80
2. INCOME TAXES:
The components of the net
deferred tax liability are as follows:
|
IDACORP |
Idaho Power |
||||||||
|
2009 |
2008 |
2009 |
2008 |
||||||
|
(thousands of dollars) |
|||||||||
Deferred tax assets: |
|
|
|
|
|
|
|
|
||
|
Regulatory liabilities |
$ |
47,183 |
$ |
44,341 |
$ |
47,183 |
$ |
44,341 |
|
|
Advances for construction |
|
8,335 |
|
9,305 |
|
8,335 |
|
9,305 |
|
|
Deferred compensation |
|
21,134 |
|
20,481 |
|
20,661 |
|
19,722 |
|
|
Tax credits |
|
81,935 |
|
76,597 |
|
2,548 |
|
- |
|
|
Retirement benefits |
|
84,019 |
|
85,034 |
|
84,019 |
|
85,034 |
|
|
Other |
|
9,976 |
|
14,456 |
|
9,104 |
|
13,614 |
|
|
|
Total |
|
252,582 |
|
250,214 |
|
171,850 |
|
172,016 |
Deferred tax liabilities: |
|
|
|
|
|
|
|
|
||
|
Property, plant and equipment |
|
282,034 |
|
246,424 |
|
282,034 |
|
246,424 |
|
|
Regulatory assets |
|
382,136 |
|
333,882 |
|
382,136 |
|
333,882 |
|
|
Conservation programs |
|
4,772 |
|
1,902 |
|
4,772 |
|
1,902 |
|
|
PCA |
|
34,025 |
|
62,820 |
|
34,025 |
|
62,820 |
|
|
Partnership investments |
|
13,396 |
|
13,060 |
|
- |
|
- |
|
|
Retirement benefits |
|
65,690 |
|
69,334 |
|
65,690 |
|
69,334 |
|
|
Other |
|
13,206 |
|
961 |
|
7,055 |
|
961 |
|
|
|
Total |
|
795,259 |
|
728,383 |
|
775,712 |
|
715,323 |
Net deferred tax liabilities |
$ |
542,677 |
$ |
478,169 |
$ |
603,862 |
$ |
543,307 |
||
|
|
|
|
|
|
|
|
|
A reconciliation between the
statutory federal income tax rate and the effective tax rate is as follows:
|
IDACORP |
Idaho Power |
|
||||||||||||||
|
2009 |
2008 |
2007 |
2009 |
2008 |
2007 |
|
||||||||||
|
(thousands of dollars) |
|
|||||||||||||||
Federal income tax expense at |
|
|
|
|
|
|
|
|
|
|
|
|
|||||
|
35% statutory rate |
$ |
51,349 |
$ |
41,165 |
$ |
33,601 |
$ |
55,328 |
$ |
46,100 |
$ |
39,188 |
||||
Change in taxes resulting from: |
|
|
|
|
|
|
|
|
|
|
|
|
|||||
|
AFUDC |
|
(4,533) |
|
(3,577) |
|
(4,757) |
|
(4,533) |
|
(3,577) |
|
(4,757) |
||||
|
Capitalized interest |
|
1,529 |
|
1,729 |
|
2,289 |
|
1,529 |
|
1,729 |
|
2,289 |
||||
|
Investment tax credits |
|
(3,404) |
|
(3,490) |
|
(3,578) |
|
(3,404) |
|
(3,490) |
|
(3,578) |
||||
|
Repair allowance |
|
(3,500) |
|
(2,450) |
|
(2,450) |
|
(3,500) |
|
(2,450) |
|
(2,450) |
||||
|
Removal costs |
|
(3,810) |
|
(2,954) |
|
(3,787) |
|
(3,810) |
|
(2,954) |
|
(3,787) |
||||
|
Capitalized overhead costs |
|
(3,500) |
|
(4,200) |
|
(4,200) |
|
(3,500) |
|
(4,200) |
|
(4,200) |
||||
|
Uncertain tax positions |
|
1,138 |
|
1,280 |
|
(3,586) |
|
1,138 |
|
1,280 |
|
(3,586) |
||||
|
Settlement of prior years tax |
|
|
|
|
|
|
|
|
|
|
|
|
||||
|
|
returns |
|
(4,119) |
|
(2,753) |
|
- |
|
(4,119) |
|
(2,761) |
|
- |
|||
|
State income taxes, net of |
|
|
|
|
|
|
|
|
|
|
|
|
||||
|
|
federal benefit |
|
1,216 |
|
3,842 |
|
5,810 |
|
1,903 |
|
4,601 |
|
6,618 |
|||
|
Depreciation |
|
3,895 |
|
5,562 |
|
7,576 |
|
3,895 |
|
5,562 |
|
7,576 |
||||
|
Affordable housing |
|
|
|
|
|
|
|
|
|
|
|
|
||||
|
|
tax credits |
|
(7,870) |
|
(11,437) |
|
(14,541) |
|
- |
|
- |
|
- |
|||
|
Other, net |
|
(6,029) |
|
(3,517) |
|
1,354 |
|
(5,406) |
|
(2,240) |
|
2,073 |
||||
Total income tax expense |
$ |
22,362 |
$ |
19,200 |
$ |
13,731 |
$ |
35,521 |
$ |
37,600 |
$ |
35,386 |
|||||
|
Effective tax rate |
|
15.2% |
|
16.3% |
|
14.3% |
|
22.5% |
|
28.5% |
|
31.6% |
||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||
81
The items comprising income tax
expense are as follows:
|
IDACORP |
Idaho Power |
||||||||||||
|
2009 |
2008 |
2007 |
2009 |
2008 |
2007 |
||||||||
|
(thousands of dollars) |
|||||||||||||
Income taxes currently payable: |
|
|
|
|
|
|
|
|
|
|
|
|
||
|
Federal |
$ |
6,199 |
$ |
13,801 |
$ |
9,573 |
$ |
21,035 |
$ |
16,390 |
$ |
8,916 |
|
|
State |
|
108 |
|
1,541 |
|
(3,105) |
|
2,385 |
|
(3,602) |
|
(6,202) |
|
|
|
Total |
|
6,307 |
|
15,342 |
|
6,468 |
|
23,420 |
|
12,788 |
|
2,714 |
Income taxes deferred: |
|
|
|
|
|
|
|
|
|
|
|
|
||
|
Federal |
|
23,309 |
|
18,709 |
|
8,035 |
|
20,638 |
|
33,224 |
|
28,148 |
|
|
State |
|
(4,509) |
|
(3,645) |
|
926 |
|
(5,792) |
|
2,794 |
|
6,223 |
|
|
|
Total |
|
18,800 |
|
15,064 |
|
8,961 |
|
14,846 |
|
36,018 |
|
34,371 |
Uncertain tax positions: |
|
|
|
|
|
|
|
|
|
|
|
|
||
|
Federal |
|
(2,496) |
|
(12,763) |
|
(3,345) |
|
(2,496) |
|
(12,763) |
|
(3,345) |
|
|
State |
|
(485) |
|
(712) |
|
(241) |
|
(485) |
|
(712) |
|
(241) |
|
|
|
Total |
|
(2,981) |
|
(13,475) |
|
(3,586) |
|
(2,981) |
|
(13,475) |
|
(3,586) |
Investment tax credits: |
|
|
|
|
|
|
|
|
|
|
|
|
||
|
Deferred |
|
3,640 |
|
5,759 |
|
5,466 |
|
3,640 |
|
5,759 |
|
5,465 |
|
|
Restored |
|
(3,404) |
|
(3,490) |
|
(3,578) |
|
(3,404) |
|
(3,490) |
|
(3,578) |
|
|
|
Total |
|
236 |
|
2,269 |
|
1,888 |
|
236 |
|
2,269 |
|
1,887 |
Total income tax expense |
$ |
22,362 |
$ |
19,200 |
$ |
13,731 |
$ |
35,521 |
$ |
37,600 |
$ |
35,386 |
||
|
|
|
|
|
|
|
|
|
|
|
|
|
IDACORPs tax allocation agreement provides that each member
of its consolidated group compute its income taxes on a separate company
basis. Amounts payable or refundable are settled through IDACORP.
Tax Credits Carryforwards
As of December 31, 2009, IDACORP had $61.8 million of general business
credit carryforward for federal income tax purposes, and $20.1 million of Idaho
investment tax credit carryforward. The general business credit carryforward
period expires from 2025 to 2029, and the Idaho investment tax credit expires
from 2019 to 2023.
Uncertain Tax Positions
IDACORP and Idaho Power adopted new guidance on uncertain
tax positions on January 1, 2007. IDACORP and Idaho Power recorded an increase
of $15.1 million to 2007 opening retained earnings for the cumulative effect of
adopting this guidance. A reconciliation of the beginning and ending amount of
unrecognized tax benefits for IDACORP and Idaho Power is as follows (in
thousands of dollars):
|
2009 |
2008 |
2007 |
|||
Balance at January 1, |
$ |
4,119 |
$ |
17,594 |
$ |
21,180 |
Additions for tax positions of prior years |
|
1,138 |
|
1,280 |
|
848 |
Reductions for tax positions of prior years |
|
(4,119) |
|
(10,426) |
|
(4,434) |
Settlements with taxing authorities |
|
- |
|
(4,329) |
|
- |
Balance at December 31, |
$ |
1,138 |
$ |
4,119 |
$ |
17,594 |
|
|
|
|
|
|
|
If recognized, the $1.1 million
balance of unrecognized tax benefits would affect the effective tax rate.
Since 2006, Idaho Power had been
disputing the Internal Revenue Services (IRS) disallowance of Idaho Powers
use of the simplified service cost method (SSCM) of uniform capitalization for
tax years 2001-2004. The dispute had been under review with the IRS Appeals
Office. In December 2008, the Appeals Office informed IDACORP that the SSCM
settlement computations were complete. IDACORP reviewed the final computations
and agreed to the result. The settlement was submitted to the U.S. Congress
Joint Committee on Taxation (JCT) for review in January 2009. In March 2009,
the JCT completed its review and accepted the settlement without change.
82
In November 2006, IDACORP made a
$44.9 million refundable tax deposit with the IRS related to the disputed
income tax assessment for SSCM. In May 2008, IDACORP withdrew $20 million from
the deposit. Approximately $21 million from the deposit was applied to the
settled income tax deficiency and interest charges with the remaining balance
refunded to IDACORP during 2009.
The IRS completed its
examination of IDACORPs 2004 tax year in August 2008 and its 2005 tax year in
October 2008. The 2004 examination report was submitted for JCT review as part
of the SSCM settlement and the 2005 report was submitted in November 2008. The
JCT accepted both reports without change in March 2009. As of December 31,
2008, all uncertain tax positions related to tax years 2001-2005 were
considered effectively settled.
In December 2008, the IRS began
its examination of IDACORPs 2006 tax year. The 2006 exam was completed in May
2009. The IRS began its examination of IDACORPs 2007-2008 tax years in July
2009 and completed the exam in December. The 2006 examination report was
submitted for JCT review in June 2009 and was accepted without change in July.
Tax years 2007-2008 did not require JCT review. As of December 31, 2009, all
uncertain tax positions related to tax years 2006-2008 were considered
effectively settled.
IDACORP and Idaho Power recognize interest accrued related
to unrecognized tax benefits as interest expense and penalties as other
expense. During the years ended December 31, 2009, 2008 and 2007, Idaho Power
recognized a net reduction in interest expense of $0.2 million, $0.1 million
and $1.0 million. Idaho Power had no accrued interest as of December 31, 2009
and $0.2 million as of December 31, 2008. No penalties are accrued.
IDACORP and Idaho Power are
subject to examination by their major tax jurisdictions U.S. federal and
state of Idaho. The open tax years are 2009 for federal and 2007-2009 for
Idaho. In May 2009, IDACORP formally entered the IRS Compliance Assurance
Process (CAP) program for its 2009 tax year. The CAP program provides for IRS
examination throughout the year. The 2009 examination is expected to be
completed in 2010. In January 2010, IDACORP was accepted into CAP for its 2010
tax year. IDACORP and Idaho Power are unable to predict the outcome of these
examinations.
Specifically within the 2009 CAP examination, the IRS began
its audit of Idaho Powers current method of uniform capitalization. In
September 2009, the IRS issued Industry Director Directive #5 (IDD) which
discusses the IRSs compliance priorities and audit techniques related to the
allocation of mixed service costs in the uniform capitalization methods of
electric utilities. The IRS and Idaho Power are jointly working through the
impact the IDD guidance has on Idaho Powers uniform capitalization method.
Idaho Power expects that the examination will be completed during 2010.
Resolution of this matter would result in a decrease to Idaho Powers
unrecognized tax benefits for its 2009 uniform capitalization deduction by $1.1
million.
83
3. REGULATORY MATTERS:
Regulatory Assets and Liabilities
The following is a breakdown of Idaho Powers regulatory assets
and liabilities (in thousands of dollars):
|
Remaining |
|
Not |
|
||||||||||
|
Amortization |
Earning |
Earning |
Total as of December 31, |
||||||||||
Description |
Period |
a Return |
a Return |
2009 |
2008 |
|||||||||
Regulatory Assets: |
|
|
|
|
|
|
|
|
|
|||||
|
Income taxes |
|
$ |
- |
$ |
389,910 |
$ |
389,910 |
$ |
335,644 |
||||
|
Unfunded postretirement benefits (1) |
|
|
- |
|
168,026 |
|
168,026 |
|
177,348 |
||||
|
Pension expense deferrals (2) |
|
|
- |
|
39,251 |
|
39,251 |
|
10,583 |
||||
|
Energy efficiency program costs (2) |
2010 |
|
10,585 |
|
1,622 |
|
12,207 |
|
8,806 |
||||
|
Power supply costs (2) |
Varies (2) |
|
84,633 |
|
- |
|
84,633 |
|
149,099 |
||||
|
Fixed cost adjustment (2) |
2011 |
|
7,836 |
|
- |
|
7,836 |
|
2,721 |
||||
|
Asset retirement obligations (3) |
|
|
- |
|
14,749 |
|
14,749 |
|
10,907 |
||||
|
Mark-to-market liabilities (4) |
|
|
- |
|
280 |
|
280 |
|
3,074 |
||||
|
Other |
2010-2015 |
|
1,914 |
|
1,875 |
|
3,789 |
|
1,224 |
||||
|
|
Total (5) |
|
$ |
104,968 |
$ |
615,713 |
$ |
720,681 |
$ |
699,406 |
|||
|
|
|
|
|
|
|
|
|
|
|
||||
Regulatory Liabilities: |
|
|
|
|
|
|
|
|
|
|||||
|
Income taxes |
|
$ |
- |
$ |
54,958 |
$ |
54,958 |
$ |
46,102 |
||||
|
Removal costs (3) |
|
|
- |
|
155,405 |
|
155,405 |
|
156,837 |
||||
|
Investment tax credits |
|
|
- |
|
73,506 |
|
73,506 |
|
73,270 |
||||
|
Deferred revenue-AFUDC |
|
|
6,096 |
|
3,798 |
|
9,894 |
|
- |
||||
|
Mark-to-market assets (4) |
|
|
- |
|
715 |
|
715 |
|
652 |
||||
|
Other |
2011 |
|
479 |
|
1,100 |
|
1,579 |
|
1,818 |
||||
|
|
Total (6) |
|
$ |
6,575 |
$ |
289,482 |
$ |
296,057 |
$ |
278,679 |
|||
|
|
|
|
|
|
|
|
|
|
|||||
(1) Represents the Idaho jurisdiction unfunded obligation of Idaho Powers pension and postretirement plans, which are discussed in note 11. |
||||||||||||||
(2) These items are discussed in more detail below. |
||||||||||||||
(3) Asset retirement obligations and removal costs are discussed in Note 13 |
||||||||||||||
(4) Mark-to market assets and liabilities are discussed in Note 16 |
||||||||||||||
(5) Includes $601 and $3,074 for 2009 and 2008, respectively, reported in other current assets on the balance sheets. |
||||||||||||||
(6) Includes $8,972, and $2,413 for 2009 and 2008, respectively, reported in other current liabilities on the balance sheets. |
||||||||||||||
|
||||||||||||||
In the event that recovery of Idaho Powers costs through
rates becomes unlikely or uncertain, regulatory accounting would no longer
apply to some or all of Idaho Powers operations and the items above may
represent stranded investments. If not allowed full recovery of these items,
Idaho Power would be required to write off the applicable portion, which could
have a significant financial impact.
Deferred Net Power Supply Costs:
Changes in deferred power supply costs over the last two
years were as follows:
84
Idaho:
Idaho Power has a PCA mechanism that provides for annual
adjustments to the rates charged to its Idaho retail customers. The PCA tracks
Idaho Powers actual net power supply costs (primarily fuel and purchased power
less off-system sales) and compares these amounts to net power supply costs
currently being recovered in retail rates.
The annual adjustments are based on two components:
A forecast component, based on a forecast of net power supply costs in the coming year as compared to net power supply costs in base rates; and
A true-up component, based on the difference between the previous
years actual net power supply costs and the previous years forecast. This
component also includes a balancing mechanism so that, over time, the actual collection
or refund of authorized true-up dollars matches the amounts authorized. The
true-up component is calculated monthly, and interest is applied to the
balance.
The following table summarizes the PCA adjustments during
the last three years:
Effective |
$ Change |
|
Date |
(millions) |
Notes |
June 1, 2009 |
$84.3 |
The IPUCs order reflects
revised methodology discussed below in PCA Workshops.
|
June 1, 2008 |
73.3 |
Increase was net of $16.5 million of gains from sales of excess SO2emission allowances |
June 1, 2007 |
77.5 |
Increase was net of $69.1 million of gains from sales of excess SO2 emission allowances |
|
PCA Workshops:
In its order approving Idaho Powers
2008-2009 PCA, the IPUC directed Idaho Power to set up workshops with the IPUC
Staff and several of Idaho Powers largest customers to address issues not
resolved in that PCA filing. The workshops resulted in the following changes
to the PCA mechanism, effective February 1, 2009:
PCA sharing ratio the PCA allocates the deviations in net power supply expenses between customers (95 percent) and shareholders (5 percent). The previous sharing ratio was 90/10.
LGAR the LGAR is an element of the PCA formula that is intended to eliminate recovery of power supply expenses associated with load growth resulting from changing weather conditions, a growing customer base, or changing customer use patterns. The 2007 general rate case reset the LGAR from $29.41 to $62.79 per MWh, but applied that rate to only 50 percent of the load growth beginning in March 2008. The stipulation agreed on a new formula for calculating the LGAR. Based on the final rates approved by the IPUC in the 2008 general rate case and the supporting data, the current LGAR is $26.63 per MWh, effective February 1, 2009.
Use of Idaho Powers operation plan power supply cost forecast the operation plan forecast may better match current collections with actual net power supply costs in the year they are incurred and result in smaller amounts being included in the following years true-up rate, beginning with the 2009-2010 PCA filing.
Inclusion of third-party transmission expense transmission expenses paid to third parties to facilitate wholesale purchases and sales of energy, including losses, are a necessary component of net power supply costs. Deviation in these costs from levels included in base rates is now reflected in PCA computations.
Adjusted distribution of base net power supply costs base net
power supply costs are distributed throughout the year based upon the monthly
shape of normalized revenues for purposes of the PCA deferral calculation.
85
Oregon
2006-2007 Excess Power Costs
: In December 2007, the
OPUC approved the deferral for future recovery of $2 million of excess power
costs incurred from May 1, 2006, through April 30, 2007, and effective
September 2009, these costs began being collected through rates and amortized.
Idaho Power expects amortization of this deferral to be completed in December
2010.
May-December 2007 Excess Power Costs
: In May 2009,
the OPUC approved the deferral for future recovery of $6.4 million, including
interest through the date of the order, of excess net power supply costs
incurred from May-December 2007. Idaho Power recorded the $6.4 million
deferral in the second quarter 2009 as a reduction to power cost adjustment
expense. The amount to be recovered was reduced by $0.9 million of previously
deferred emission allowance sales (including interest) during the same period.
Oregon Power Supply Cost Mechanism
: Idaho Powers
power cost recovery mechanism in Oregon went into effect in 2008. It has two
components: the annual power cost update (APCU) and the power cost adjustment
mechanism (PCAM). The combination of the APCU and the PCAM allows Idaho Power
to recover excess net power supply costs in a more timely fashion than through
the previously existing deferral process.
The APCU allows Idaho Power to reestablish its Oregon base
net power supply costs annually, separate from a general rate case, and to
forecast net power supply costs for the upcoming water year. The APCU has two
components: the October Update, Idaho Powers calculation of estimated normalized
net power supply expenses for the following April through March test period,
and the March Forecast, Idaho Powers forecast of expected net power supply
expenses for the same test period, updated for a number of variables including
the most recent stream flow data and future wholesale electric prices. New
base rates are implemented each June 1 based on the APCU.
2010 APCU: Idaho Powers October Update portion of the 2010 APCU indicates that revenues associated with Idaho Powers base net power supply costs would be increased by $2.6 million over the current APCU, an average 8.2 percent increase. The actual impact will be determined once the March Forecast portion is filed in March 2010 and combined with the October Update. Final rates are expected to become effective on June 1, 2010.
2009 APCU: A rate increase of 11.5 percent, or $3.9 million annually, took effect June 1, 2009.
2008 APCU: A rate increase of 15.7 percent, or $4.8 million annually, took effect June 1, 2008.
The PCAM is a true-up filed annually in February. The
filing calculates the deviation between actual net power supply expenses
incurred for the preceding calendar year and the net power supply expenses
recovered through the APCU for the same period. Under the PCAM, Idaho Power is
subject to a portion of the business risk or benefit associated with this
deviation through application of an asymmetrical deadband (or range of
deviations) within which Idaho Power absorbs cost increases or decreases. For
deviations in actual power supply costs outside of the deadband, the PCAM
provides for 90/10 sharing of costs and benefits between customers and Idaho
Power. However, collection by Idaho Power will occur only to the extent that
it results in Idaho Powers actual return on equity (ROE) for the year being no
greater than 100 basis points below Idaho Powers last authorized ROE. A
refund to customers will occur only to the extent that it results in Idaho
Powers actual ROE for that year being no less than 100 basis points above Idaho
Powers last authorized ROE.
2009 PCAM: Actual net power supply costs were within the deadband, resulting in no deferral.
2008 PCAM:
Actual net power supply costs exceeded the forecast for the 2008 calendar year
by $7.7 million and, after application of the deadband, resulted in a $5.1
million deferral in 2008. The OPUC approved deferral of this amount in January
2010, to be amortized sequentially after previously authorized deferrals.
Fixed Cost Adjustment Mechanism (FCA)
The FCA mechanism began as a pilot program for Idaho Powers
Idaho residential and small general service customers, running from 2007
through 2009. The FCA is a rate mechanism designed to remove Idaho Powers
disincentive to invest in energy efficiency programs by separating (or decoupling)
the recovery of fixed costs from the variable kilowatt-hour charge and linking
it instead to a set amount per customer. On October 1, 2009, Idaho Power filed
an application with the IPUC to make the FCA mechanism permanent beginning
January 1, 2010. The application is being processed under modified procedure.
86
Idaho Power accrued $6.6 million related to the FCA in 2009;
subject to IPUC approval, recovery should begin June 1, 2010. The IPUC
approved a rate increase effective June 1, 2009, through May 31, 2010, to
recover $2.7 million of fixed costs under-recovered during 2008. In 2008, the
IPUC approved a rate reduction, effective June 1, 2008 through May 31, 2009, to
return $2.4 million of fixed costs over-recovered in 2007.
Idaho Rate Cases
2009 Settlement Agreement:
On January 13, 2010, the
IPUC approved a settlement agreement among Idaho Power, several of Idaho
Powers customers, the IPUC staff and others. Significant elements of the
settlement agreement include:
A general rate moratorium in effect until January 1, 2012. The moratorium does not apply to other specified revenue requirement proceedings, such as the PCA, the FCA, pension funding, AMI, energy efficiency rider, and government imposed fees.
A specified distribution of the expected 2010 PCA. This distribution is intended to reduce customer rates, provide some general rate relief to Idaho Power and reset base power supply costs for the PCA. The associated rate change is expected to become effective June 1, 2010. This provision is in anticipation of a significant reduction in PCA rates for the 2010-2011 PCA year. The PCA reduction will be allocated as follows:
o The first $40 million will be allocated equally between customers and Idaho Power. Idaho Powers share would be applied to increase permanent base rates on a uniform percentage basis to all customer classes and contract customers. The customers share would be a direct rate reduction through the PCA.
o All of the next $20 million will be allocated to customers as a direct rate reduction through the PCA.
o PCA reductions in excess of $60 million will be applied to absorb any increase in the base level of net power supply expenses.
o If the PCA reduction exceeds $60 million plus the increase in base net power supply expenses, the next $10 million will be allocated equally between Idaho Power and customers in the same manner as the first $40 million.
o Any remainder will go entirely to customers.
A provision to share earnings with customers if Idaho Powers actual rate of return on equity is more than 10.5 percent in any calendar year from 2009 to 2011 in its Idaho jurisdiction. Idaho Power will share with Idaho customers 50 percent of any profits in excess of 10.5 percent.
A provision to allow the accelerated amortization of accumulated deferred investment tax credits (ADITC) if Idaho Powers actual rate of return on equity is below 9.5 percent in any calendar year from 2009 to 2011 in its Idaho jurisdiction. Idaho Power would be permitted to amortize additional ADITC in an amount up to $45 million over the three-year period, but could use no more that $15 million in any one year unless there is a carryover. Carryover amounts are added to the $15 million annual allowance up to a maximum amortization of $25 million in any one year.
Because Idaho Powers Idaho-jurisdiction return on equity
was between 9.5 and 10.5 percent, the sharing and accelerated amortization
provisions were not triggered in 2009.
The settlement agreement also included a provision to
reestablish the base level for net power supply costs effective with the June
1, 2010 PCA rate change. On January 19, 2010, Idaho Power filed with the IPUC
a request to increase base net power supply costs by $74.8 million in the Idaho
jurisdiction. This amount, which is subject to approval by the IPUC, reflects
the maximum increase to Idaho Powers base net power supply costs, which would
be used for both base rates and PCA calculations. The actual change in net
power supply costs for rate purposes will depend upon the amount approved by
the IPUC as well as the amount of any PCA decrease determined for the 2010-2011
PCA year. Written comments or protests with respect to Idaho Powers
application are due March 11, 2010.
Idaho 2008 General Rate Case:
On January 30, 2009,
the IPUC issued an order approving an average annual increase in Idaho base
rates, effective February 1, 2009, of 3.1 percent (approximately $20.9 million
annually), a return on equity of 10.5 percent and an overall rate of return of
8.18 percent. On February 19, 2009, Idaho Power filed a request for
reconsideration with the IPUC and on March 19, 2009, the IPUC issued an order
that increased Idaho Powers Idaho revenue requirement by an additional $6.1
million to approximately $27 million for this rate case, raising the average
rate increase from 3.1 percent to 4.0 percent.
87
The January 30, 2009 order authorized approximately $15
million related to increases in base net power supply costs. It also allowed
Idaho Power to include in rates approximately $6.8 million ($10.6 million
including income tax gross-up) of 2009 AFUDC relating to the Hells Canyon
Complex relicensing project. Typically, AFUDC is not included in rates until a
project is in use and benefitting customers, but the IPUC determined that
including this amount in current rates is in the public interest. Because
AFUDC is already recorded on an accrual basis, this portion of the rate
increase will improve cash flows but will not have a current impact on Idaho
Powers net income. The amounts collected are being deferred as a regulatory
liability and will be recognized in revenues over the life of the new license
once it has been issued.
The IPUC denied reconsideration with respect to a refund of
$3.3 million of fees recovered by Idaho Power from the FERC. On April 2, 2009,
Idaho Power filed an application with the IPUC for an accounting order
approving amortization of the fees over a five-year period beginning October
2006 when Idaho Power received the FERC credit. The IPUC approved Idaho
Powers requested amortization period in an order issued on April 28, 2009. In
the first quarter of 2009, Idaho Power recorded a charge of approximately $1.7
million to electric utility other operations expense and a corresponding
regulatory liability for the amount to be refunded from February 1, 2009,
through the end of the amortization period, September 2011. As the regulatory
liability is amortized it will reduce electric utility other operations expense
ratably over the remaining amortization period.
Idaho 2007 General Rate Case:
On February 28, 2008,
the IPUC approved a settlement stipulation that included an average increase in
base rates of 5.2 percent (approximately $32.1 million annually), effective
March 1, 2008. The settlement did not specify an overall rate of return or a
return on equity.
Danskin CT1 Power Plant Rate Case:
On May 30, 2008,
the IPUC authorized Idaho Power to add to its rate base $64.2 million for the
Danskin CT1 plant and related facilities, effective June 1, 2008, resulting in
a base rate increase of 1.37 percent, or $8.9 million in annual revenues.
Danskin CT1 located near Mountain Home, Idaho, began commercial operations on
March 11, 2008.
Oregon 2009 General Rate Case
: On December 16, 2009,
Idaho Power filed a Joint Stipulation and testimony in support of a stipulation
that would settle the revenue requirement issues surrounding the general rate
case filed on July 31, 2009. If approved by the OPUC, the Joint Stipulation
would increase base rates $5 million, or 15.4 percent, based on a return on
equity of 10.175 percent and an overall rate of return of 8.061 percent. The
requested effective date is March 1, 2010.
Advanced Metering Infrastructure (AMI)
The AMI project provides the means to automatically retrieve
energy consumption information, eliminating manual meter reading expense.
Idaho Power intends to install this technology for approximately 99 percent of
its customers and is on pace to complete the installations by the end of 2011.
Idaho:
On February 12, 2009, the IPUC approved Idaho
Powers application requesting a Certificate of Public Convenience and
Necessity for the deployment of AMI technology and approval of accelerated
depreciation for the existing metering equipment. The IPUC subsequently
clarified that Idaho Power can expect in the ordinary course of events, to
include in rate base the prudent capital costs of deploying AMI as it is placed
in service up to the capital cost commitment estimate of $70.9 million. The
IPUC also clarified, as requested by Idaho Power, that it does not anticipate
that the immediate savings derived from the implementation of AMI throughout
Idaho Powers service territory will eliminate or wholly offset the increase in
Idaho Powers revenue requirement caused by the authorized depreciation period.
On May 29, 2009, the IPUC approved annual recovery of $10.5
million, effective June 1, 2009. The order was based on Idaho Powers actual
investment in AMI to date, annualized through December 31, 2009. The IPUC also
allowed Idaho Power to begin three-year accelerated depreciation of the
existing metering equipment on June 1, 2009. The order reflects annualized
depreciation expense relating to AMI of $9.2 million. Actual depreciation
expense recorded over the last seven months of 2009 totaled $6.2 million.
88
Oregon:
The OPUC approved accelerated depreciation
and recovery of existing meters in the Oregon jurisdiction over an 18-month
period beginning January 2009. Idaho Powers AMI deployment schedule calls for
the replacement of the Oregon service-territory meters around October 2010.
The existing meters will be fully depreciated prior to their removal from
service. The approval increased both rates and depreciation expense $0.8
million in 2009.
Depreciation Filings
In 2008 and 2009 Idaho Power filed revisions to its
depreciation rates with the IPUC, OPUC and FERC. The commissions approved the
new rates, which reduce depreciation expense approximately $8.5 million
annually. Idaho Power began applying the new depreciation rates in August
2008.
OATT
Formula Rates:
In 2006, Idaho Power moved from a
fixed rate to a formula rate, which allows transmission rates to be updated
annually based on financial and operational data Idaho Power files with the
FERC. The FERC accepted Idaho Powers initial formula rates effective June 1,
2006, subject to refund pending the outcome of a hearing and settlement
process.
Idaho Power and the parties who
had opposed the filing entered into a settlement agreement, which was approved
by the FERC in August 2007. The settlement agreement reduced Idaho Powers
formula rates, established an authorized rate of return on equity of 10.7
percent and resulted in a $1.7 million refund by Idaho Power. The settlement
agreement did not cover the treatment of Legacy Agreements, which were contracts
for transmission service that contained their own terms, conditions and rates
and were in existence before implementation of the OATT in 1996.
On January 15, 2009, the FERC issued an order that required
Idaho Power to reduce its transmission service rates to FERC jurisdictional
customers and refund $13.3 million to these customers. Based on the FERC
order, Idaho Power reserved an additional $7.9 million (including $0.7 million
of interest) in 2008 to bring its reserve to the $13.3 million ordered refunded.
Idaho Power made the refunds in February 2009 and filed a request for rehearing
with the FERC. Of the additional $7.9 million ordered refunded, $2.3 million
related to transmission revenues recorded in 2007 and $1.7 million related to
transmission revenues recorded in 2006. In March 2009, the FERC issued a
tolling order that effectively relieved it from acting for an indefinite period
of time on Idaho Powers request for rehearing. Idaho Power cannot predict
when the FERC will rule on its request for rehearing or the outcome of this
matter.
As discussed below, Idaho Power received an accounting order
from the IPUC on October 30, 2009, authorizing it to defer for potential future
recovery approximately $4.7 million in unrecovered transmission-related
revenues associated with the FERC order.
2009 OATT: On August 28, 2009, Idaho Power filed its
informational filing with the FERC that contains the annual update of the
formula rate based on the 2008 test year. The new rate included in the filing
was $15.83 per kW-year, an increase of $2.02 per kW-year, or 14.6 percent. New
rates were effective October 1, 2009.
2008 OATT: On August 28, 2008, Idaho Power filed its
informational filing with the FERC that contained the annual update of the
formula rate based on the 2007 test year. The rate included in the filing was
$18.88 per kW-year, a decrease of $0.85 per kW-year, or 4.3 percent. New rates
were effective October 1, 2008. Idaho Power subsequently adjusted its rates to
$13.81 per kW-year in compliance with a January 15, 2009, order.
Legacy Agreements:
Subsequent to the January 15,
2009, FERC Order, Idaho Power has sought to mitigate the resulting revenue
shortfall by revising certain of the Legacy Agreements as provided for in the
agreements.
The Restated Transmission Services Agreement and three
long-term service agreements with PacifiCorp were amended to replace a portion
of the services provided for in the agreement with OATT service, effective June
13, 2009. As calculated in the FERC filings, the estimated net transmission
revenue increase for the period June 13, 2009 through June 12, 2010 is
approximately $3.2 million. These amendments are expected to increase 2010
transmission revenue $1.3 million as compared to 2009.
89
Idaho Power also filed a request with the FERC on June 19,
2009, for an increase in rates for the Agreement for Interconnection and
Transmission Services with PacifiCorp. As calculated in the filing, the
estimated net transmission revenue increase for the period September 1, 2009
through August 31, 2010, would be approximately $3.7 million. PacifiCorp has
intervened in this case. Idaho Power began collecting the new rates effective
August 19, 2009, subject to refund pending settlement procedures and hearing.
Settlement discussions are ongoing. This revision is expected to increase 2010
transmission revenue $2.5 million as compared to 2009.
OATT Shortfall Filing
For Idaho jurisdictional revenue requirement determinations, revenues from
third parties (non-state jurisdictional) received through the OATT, referred to
as revenue credits, are a direct offset to Idaho Powers overall revenue
requirement. In the last two general rate cases, Idaho Power included an
estimate of OATT revenues from third parties based on the forecasted OATT
rate. However, as discussed above in OATT, a FERC order issued on January
15, 2009, significantly reduced actual third-party transmission revenues Idaho
Power received from June 2006 to date, resulting in an overstatement of the
revenue credits in the Idaho jurisdictional revenue requirement.
On October 30, 2009, the IPUC approved an Idaho Power
request for authorization to defer the difference between the revenue credits
in the last two general rate cases and the amount of OATT revenues Idaho Power
has received since March 2008 and expects to receive through May 2010. The
IPUC order authorizes Idaho Power to amortize the unrecovered transmission
revenues on a straight-line basis over a three-year period beginning January 1,
2011 and did not authorize a carrying charge on the balance. Based on actual
and projected transmission revenues from March 2008 through May 2010, Idaho
Power recorded a $4.7 million regulatory asset in 2009 for potential future
recovery.
Idaho Power has filed a request for rehearing of the FERC
order and is taking additional measures to address the revenue shortfall. If
the FERC issues are resolved in Idaho Powers favor, Idaho Power will reduce
the deferral.
Pension Expense
In the 2003 Idaho general rate case, the IPUC disallowed
recovery of pension expense because there were no current cash contributions
being made to the pension plan. On June 1, 2007, the IPUC issued an order
authorizing Idaho Power to account for its defined benefit pension expense on a
cash basis, and to defer and account for pension expense as a regulatory
asset. On February 17, 2010, the IPUC approved a recovery methodology that
would permit Idaho Power to include in future rate cases a reasonable amortization
and recovery of cash contributions. Idaho Power deferred approximately $29
million, $8 million and $3 million of pension expense to a regulatory asset in
2009, 2008, and 2007 respectively. Deferred pension costs are expected to be
amortized to expense to match the revenues received when future pension
contributions are recovered through rates. Idaho Power does not receive a
carrying charge on the current deferral balance. A carrying charge will be
recorded on the difference between actual cash contributions and the recovery
of those amounts in rates.
Idaho Energy Efficiency Rider (Rider)
Idaho Powers Rider is the chief funding mechanism for Idaho
Powers investment in energy efficiency, conservation, and demand response
programs. Effective June 1, 2009, Idaho Power collects 4.75 percent of base
revenues, or approximately $29-$33 million annually, under the Rider. Idaho
Power collected 2.5 percent of base revenues from June 2008-May 2009 and 1.5
percent prior to June 2008. Energy efficiency program expenditures are
reported as an operating expense with an equal amount of revenues recorded in
other revenues, resulting in no net impact on earnings. The cumulative
variance between expenditures and amounts collected through the rider is recorded
as a regulatory asset or liability pending future collection from or obligation
to customers. An asset balance indicates that Idaho Power has spent more than
collected and a liability balance indicates that Idaho Power has collected more
than it has spent. At December 31, 2009, Idaho Powers rider balance was a
regulatory asset of $11 million.
In the 2008 general rate case, Idaho Power requested that
the IPUC explicitly find that Idaho Powers expenditures between 2002 and 2007
of $29 million of funds obtained from the Rider were prudently incurred and no
longer subject to potential disallowance. In 2009, the IPUC approved a
stipulation identifying $14.3 million of Rider funding as prudent, and on
January 25, 2010, Idaho Power and the IPUC staff filed a stipulation for
approval by the IPUC to find the remaining expenditures through 2007 were
prudently incurred.
On October 5, 2009, Idaho Power and other investor-owned
electric utilities serving in Idaho began a series of many informal public
workshops with the IPUC Staff to discuss how energy efficiency evaluation and
prudency will be determined on a prospective basis. As a result, a Memorandum
of Understanding written by Staff, Idaho Power and other investor-owned
electric utilities in Idaho has been signed outlining a process for future
energy efficiency expenditure approval. This document was filed with the IPUC
on January 25, 2010.
90
4. LONG-TERM DEBT
The following table summarizes long-term debt at December
31:
|
2009 |
|
2008 |
||||
|
(thousands of dollars) |
||||||
First mortgage bonds: |
$ |
|
|
$ |
|
||
|
7.20% Series due 2009 |
|
- |
|
|
80,000 |
|
|
6.60% Series due 2011 |
|
120,000 |
|
|
120,000 |
|
|
4.75% Series due 2012 |
|
100,000 |
|
|
100,000 |
|
|
4.25% Series due 2013 |
|
70,000 |
|
|
70,000 |
|
|
6.025% Series due 2018 |
|
120,000 |
|
|
120,000 |
|
|
6.15% Series due 2019 |
|
100,000 |
|
|
- |
|
|
4.50% Series due 2020 |
|
130,000 |
|
|
- |
|
|
6% Series due 2032 |
|
100,000 |
|
|
100,000 |
|
|
5.50% Series due 2033 |
|
70,000 |
|
|
70,000 |
|
|
5.50% Series due 2034 |
|
50,000 |
|
|
50,000 |
|
|
5.875% Series due 2034 |
|
55,000 |
|
|
55,000 |
|
|
5.30% Series due 2035 |
|
60,000 |
|
|
60,000 |
|
|
6.30% Series due 2037 |
|
140,000 |
|
|
140,000 |
|
|
6.25% Series due 2037 |
|
100,000 |
|
|
100,000 |
|
|
|
Total first mortgage bonds |
|
1,215,000 |
|
|
1,065,000 |
Pollution control revenue bonds: |
|
|
|
|
|
||
|
Variable Rate Series 2003 due 2024 (1) |
|
- |
|
|
49,800 |
|
|
Variable Rate Series 2006 due 2026 (1) |
|
- |
|
|
116,300 |
|
|
5.15% Series due 2024 (1) |
|
49,800 |
|
|
- |
|
|
5.25% Series due 2026 (1) |
|
116,300 |
|
|
- |
|
|
Variable Rate Series 2000 due 2027 |
|
4,360 |
|
|
4,360 |
|
|
|
Total pollution control revenue bonds |
|
170,460 |
|
|
170,460 |
American Falls bond guarantee |
|
19,885 |
|
|
19,885 |
||
Milner Dam note guarantee |
|
8,509 |
|
|
9,573 |
||
Unamortized discount - net |
|
(3,060) |
|
|
(3,163) |
||
Term Loan Credit Facility |
|
- |
|
|
166,100 |
||
Purchase of pollution control revenue bonds |
|
- |
|
|
(166,100) |
||
|
Total Idaho Power outstanding debt (2) |
|
1,410,794 |
|
|
1,261,755 |
|
Debt related to investments in affordable housing |
|
8,276 |
|
|
8,224 |
||
|
Total IDACORP outstanding debt |
|
1,419,070 |
|
|
1,269,979 |
|
Current maturities of long-term debt |
|
(9,340) |
|
|
(86,528) |
||
|
|
Total long-term debt |
$ |
1,409,730 |
|
$ |
1,183,451 |
|
|
|
|
|
|
|
|
(1) Humboldt County and Sweetwater County Pollution Control Revenue bonds are secured by first mortgage bonds, bringing the total first mortgage bonds outstanding at December 31, 2009, to $1.381 billion. |
|||||||
(2) At December 31, 2009 and 2008, the overall effective cost of Idaho Powers outstanding debt was 5.76 percent and 5.59 percent, respectively. |
|||||||
|
At December 31, 2009, the maturities for the aggregate
amount of long-term debt outstanding were (in thousands of dollars):
|
2010 |
2011 |
2012 |
2013 |
2014 |
Thereafter |
|||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Idaho Power |
$ |
1,064 |
$ |
121,064 |
$ |
101,064 |
$ |
71,064 |
$ |
1,064 |
$ |
1,118,534 |
|
Other subsidiary debt |
|
8,276 |
|
- |
|
- |
|
- |
|
- |
|
- |
|
|
Total |
$ |
9,340 |
$ |
121,064 |
$ |
101,064 |
$ |
71,064 |
$ |
1,064 |
$ |
1,118,534 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
91
IDACORP Long-Term Financing
IDACORP has approximately $574
million remaining on a shelf registration statement that can be used for the
issuance of debt securities or common stock. Common stock is discussed further
in Note 6.
In February 2009, IFS repaid
$7.2 million of debt related to investments in affordable housing. The debt
was scheduled to mature in 2009 and 2010. In 2009, IFS issued $8.3 million in
equity funding obligations to finance portions of its $14 million of
investments in affordable housing. The obligations are scheduled to mature in
2010.
Idaho Power Long-Term Financing
On March 30, 2009, Idaho Power
issued $100 million of its 6.15% first mortgage bonds, due April 1, 2019. On
November 20, 2009, Idaho Power issued $130 million of its 4.5% first mortgage
bonds, due March 1, 2020. Idaho Power used the net proceeds from the two bond
issuances to repay short-term debt and to repay $80 million of its 7.20 % first
mortgage bonds that matured on December 1, 2009. As of December 31, 2009,
Idaho Power had issued all securities remaining registered under its shelf
registration statement.
Mortgage:
As of December 31, 2009, Idaho Power could
issue under the mortgage approximately $431 million of additional first
mortgage bonds based on total unfunded property additions of approximately $719
million. Idaho Power could issue an additional $612 million of first mortgage
bonds based on retired first mortgage bonds. These amounts are further limited
by the maximum amount of first mortgage bonds set forth in the mortgage discussed
below.
The mortgage secures all bonds issued under the indenture
equally and ratably, without preference, priority or distinction. First
mortgage bonds issued in the future will also be secured by the mortgage. The
lien of the indenture constitutes a first mortgage on all the properties of
Idaho Power, subject only to certain limited exceptions including liens for
taxes and assessments that are not delinquent and minor excepted encumbrances.
Certain of the properties of Idaho Power are subject to easements, leases,
contracts, covenants, workmens compensation awards and similar encumbrances
and minor defects and clouds common to properties. The mortgage does not
create a lien on revenues or profits, or notes or accounts receivable,
contracts or choses in action, except as permitted by law during a completed
default, securities or cash, except when pledged, or merchandise or equipment
manufactured or acquired for resale. The mortgage creates a lien on the
interest of Idaho Power in property subsequently acquired, other than excepted
property, subject to limitations in the case of consolidation, merger or sale
of all or substantially all of the assets of Idaho Power. The mortgage
requires Idaho Power to spend or appropriate 15 percent of its annual gross
operating revenues for maintenance, retirement or amortization of its
properties. Idaho Power may, however, anticipate or make up these expenditures
or appropriations within the five years that immediately follow or precede a
particular year.
On February 17, 2010, Idaho Power entered into the
Forty-fifth Supplemental Indenture, dated as of February 1, 2010, to the
Indenture of Mortgage and Deed of Trust, dated as of October 1, 1937, between
Idaho Power and Deutsche Bank Trust Company Americas (formerly known as Bankers
Trust Company) and R.G. Page, as Trustees (Stanley Burg, successor individual
trustee) for the purpose of increasing the maximum amount of first mortgage
bonds issuable by Idaho Power from $1.5 to $2.0 billion. The amount
issuable is also restricted by property, earnings and other provisions of the
mortgage and supplemental indentures to the mortgage. Idaho Power may amend
the indenture and increase this amount without consent of the holders of the
first mortgage bonds. The indenture requires that Idaho Powers net earnings
must be at least twice the annual interest requirements on all outstanding debt
of equal or prior rank, including the bonds that Idaho Power may propose to
issue. Under certain circumstances, the net earnings test does not apply,
including the issuance of refunding bonds to retire outstanding bonds that
mature in less than two years or that are of an equal or higher interest rate,
or prior lien bonds.
92
Pollution Control Revenue
Refunding Bonds and Term Loan Credit Agreement:
On April 3, 2008, Idaho
Power made a mandatory purchase of two series of Pollution Control Revenue
Refunding Bonds issued for the benefit of Idaho Power, the $116.3 million
aggregate principal amount of Pollution Control Revenue Refunding Bonds Series
2006 issued by Sweetwater County, Wyoming due 2026 and the $49.8 million
aggregate principal amount of Pollution Control Revenue Refunding Bonds Series
2003 issued by Humboldt County, Nevada due 2024 (together the Pollution Control
Bonds). Idaho Power initiated this transaction in order to adjust the interest
rate period of the Pollution Control Bonds from an auction interest rate period
to a weekly interest rate period, effective April 3, 2008. This change was
made to mitigate the higher-than-anticipated interest costs in the auction
mode, which was a result of the financial guarantors credit ratings
deterioration.
On August 20, 2009, J.P. Morgan Securities Inc. as the
Remarketing Agent, purchased the Pollution Control Bonds from Idaho Power for
remarketing to the public. The Humboldt County Bonds carry a 5.15 percent term
interest rate and mature on December 1, 2024. The Sweetwater County Bonds
carry a 5.25 percent term interest rate and mature on July 15, 2026. The
Pollution Control Bonds are not subject to redemption for 10 years, except for
extraordinary optional and mandatory redemption prior to maturity, in each case
at 100 percent of the principal amount, plus accrued interest if any to the
date of redemption. In connection with the remarketing of the Pollution
Control Bonds, the financial guaranty insurance policies securing the Pollution
Control Bonds were terminated.
On August 25, 2009, Idaho Power used proceeds from the
reoffering of the Pollution Control Bonds and additional corporate funds to
prepay its $170 million loan under a Term Loan Credit Agreement dated as of
February 4, 2009, among JPMorgan Chase Bank, N.A., as administrative agent and
lender, Bank of America, N.A., Union Bank, N.A. and Wachovia Bank, National
Association, as lenders.
5. NOTES PAYABLE:
IDACORP has a $100 million credit facility and Idaho Power
has a $300 million credit facility each of which expires on April 25, 2012.
Commercial paper may be issued up to the amounts supported by the bank credit
facilities. Under these facilities the companies pay a facility fee on the
commitment, quarterly in arrears, based on its rating for senior unsecured
long-term debt securities without third-party credit enhancement as provided by
Moodys and S&P. At December 31, 2009, Idaho Power had regulatory
authority to incur up to $450 million of short-term indebtedness.
At December 31, 2009, no loans were outstanding on IDACORPs
or Idaho Powers facilities. Balances and interest rates of IDACORPs
short-term borrowings were as follows at December 31 (in thousands of dollars):
|
IDACORP |
Idaho Power |
Total |
|||||||||
|
2009 |
2008 |
2009 |
2008 |
2009 |
2008 |
||||||
|
|
|
|
|
|
(thousands of dollars) |
||||||
Balances: |
|
|
|
|
|
|
|
|
|
|
|
|
At the end of year |
$ |
53,750 |
$ |
38,400 |
$ |
- |
$ |
112,850 |
$ |
53,750 |
$ |
151,250 |
Average during the year |
$ |
39,338 |
$ |
57,734 |
$ |
46,386 |
$ |
151,192 |
$ |
85,724 |
$ |
208,927 |
Weighted-average interest rate: |
|
|
|
|
|
|
|
|
|
|
|
|
At the end of year |
|
0.41% |
|
4.29% |
|
- |
|
4.89% |
|
0.41% |
|
4.74% |
|
|
|
|
|
|
|
|
|
|
|
|
|
6. COMMON STOCK
IDACORP Common Stock
The following table summarizes common stock transactions
during the last three years and shares reserved at December 31, 2009:
|
Shares issued |
Shares reserved |
||
|
2009 |
2008 |
2007 |
December 31, 2009 |
Balance at beginning of year |
46,929,203 |
45,063,107 |
43,905,458 |
|
Continuous equity program |
489,360 |
1,453,967 |
881,337 |
2,138,818 |
Dividend reinvestment and stock purchase plan |
209,859 |
169,229 |
150,458 |
2,903,460 |
Employee savings plan |
156,814 |
111,021 |
99,562 |
3,813,902 |
Long-term incentive and compensation plan (1) |
127,928 |
115,730 |
26,292 |
2,275,476 |
Restricted stock plan |
28,518 |
16,149 |
- |
269,447 |
Balance at end of year |
47,941,682 |
46,929,203 |
45,063,107 |
11,401,103 |
|
|
|
|
|
(1) Included in long-term incentive and compensation plan are 15,800 shares that were issued pursuant to the exercise of stock options on December 30, 2009 and settled on January 4, 2010. |
||||
|
93
IDACORP enters into Sales Agency Agreements as a means of
selling its common stock from time to time. Under these agreements IDACORP
sold 881,337 in 2007 at an average price of $32.32. In 2008, IDACORP sold
1,453,967 shares an average price of $28.72. In 2009, IDACORP sold 489,360
shares at an average price of $28.79 per share. IDACORPs current Sales Agency
Agreement is with BNY Mellon Capital Markets, LLC. As of December 31, 2009,
there were 2.1 million shares remaining on the current agency agreement.
Idaho Power Common Stock
In 2009, 2008 and 2007, IDACORP contributed $20 million, $37
million and $51 million respectively, of additional equity to Idaho Power. No
additional shares of Idaho Power common stock were issued.
Dividend Restrictions
A covenant under IDACORPs credit facility and Idaho Powers
credit facility requires IDACORP and Idaho Power to maintain leverage ratios of
consolidated indebtedness to consolidated total capitalization, as defined
therein, of no more than 65 percent at the end of each fiscal quarter. Idaho
Powers Revised Code of Conduct approved by the IPUC on April 21, 2008, states
that Idaho Power will not pay any dividends to IDACORP that will reduce Idaho
Powers common equity capital below 35 percent of its total adjusted capital
without IPUC approval.
Idaho Powers ability to pay dividends on its common stock
held by IDACORP and IDACORPs ability to pay dividends on its common stock are
limited to the extent payment of such dividends would violate the covenants or
Idaho Powers Code of Conduct. At December 31, 2009, the leverage ratios for
IDACORP and Idaho Power were 51 percent and 53 percent, respectively. Based on
these restrictions, IDACORPs and Idaho Powers dividends were limited to $608
million and $514 million, respectively, at December 31, 2009.
Idaho Powers articles of incorporation contain restrictions
on the payment of dividends on its common stock if preferred stock dividends
are in arrears. Idaho Power has no preferred stock outstanding.
Idaho Power must obtain approval of the OPUC before it could
directly or indirectly loan funds or issue notes or give credit on its books to
IDACORP.
7. STOCK-BASED COMPENSATION
IDACORP has three share-based compensation plans. IDACORPs
employee plans are the 2000 Long-Term Incentive and Compensation Plan (LTICP)
and the 1994 Restricted Stock Plan (RSP). These plans are intended to align
employee and shareholder objectives related to IDACORPs long-term growth.
IDACORP also has one non-employee plan, the Director Stock Plan (DSP). The
purpose of the DSP is to increase directors stock ownership through
stock-based compensation.
The LTICP (for officers, key employees and directors)
permits the grant of nonqualified stock options, restricted stock, performance
shares, and several other types of stock-based awards. The RSP permits only
the grant of restricted stock or performance-based restricted stock. At
December 31, 2009, the maximum number of shares available under the LTICP and
RSP were 1,602,259 and 25,515, respectively.
Stock awards:
Restricted stock awards have three-year
vesting periods and entitle the recipients to dividends and voting rights.
Unvested shares are restricted as to disposition and subject to forfeiture
under certain circumstances. The fair value of these awards is based on the
market price of common stock on grant date and is charged to compensation
expense over the vesting period, based on the number of shares expected to
vest.
Performance-based restricted stock awards have three-year
vesting periods and entitle the recipients to voting rights. Unvested shares
are restricted as to disposition, subject to forfeiture under certain
circumstances, and subject to meeting specific performance conditions. Based
on the attainment of the performance conditions, the ultimate award can range
from zero to 150 percent of the target award. Dividends are accrued and paid
out only on shares that eventually vest.
94
The performance awards are based on two metrics, cumulative
earnings per share (CEPS) and total shareholder return (TSR) relative to a peer
group. The fair value of the CEPS portion is based on the market value at the
date of grant, reduced by the loss in time-value of the estimated future
dividend payments, using an expected quarterly dividend of $0.30. The fair
value of the TSR portion is estimated using a statistical model that
incorporates the probability of meeting performance targets based on historical
returns relative to the peer group. Both performance goals are measured over
the three-year vesting period and are charged to compensation expense over the
vesting period based on the number of shares expected to vest.
A summary of restricted stock and performance share activity
is presented below. Idaho Power share amounts represent the portion of IDACORP
amounts related to Idaho Power employees:
|
IDACORP |
Idaho Power |
||||
|
|
Weighted- |
|
Weighted- |
||
|
|
average |
|
Average |
||
|
Number of |
Grant Date |
Number of |
Grant Date |
||
|
Shares |
Fair Value |
Shares |
Fair Value |
||
Nonvested shares at January 1, 2009 |
325,793 |
$ |
26.72 |
303,257 |
$ |
26.68 |
Shares granted |
153,196 |
|
21.49 |
144,143 |
|
21.49 |
Shares forfeited |
(27,158) |
|
23.43 |
(27,158) |
|
23.43 |
Shares vested |
(146,491) |
|
26.29 |
(134,207) |
|
26.42 |
Nonvested shares at December 31, 2009 |
305,340 |
$ |
24.59 |
286,035 |
$ |
24.49 |
|
|
|
|
|
|
|
The total fair value of shares vested during the years ended
December 31, 2009, 2008 and 2007 was $3.9 million, $0.8 million and $0.9
million, respectively. At December 31, 2009, IDACORP had $3.6 million of total
unrecognized compensation cost related to nonvested share-based compensation
that was expected to vest. Idaho Powers share of this amount was $3.4
million. These costs are expected to be recognized over a weighted-average
period of 1.67 years. IDACORP uses original issue and/or treasury shares for
these awards.
Stock options:
Stock option awards are granted with
exercise prices equal to the market value of the stock on the date of grant.
The options have a term of 10 years from the grant date and vest over a
five-year period. The fair value of each option is amortized into compensation
expense using graded-vesting. Beginning in 2006, stock options are not a
significant component of share-based compensation awards under the LTICP. The
following table presents information about options granted and exercised (in
thousands of dollars, except for weighted-average amounts):
|
IDACORP |
Idaho Power |
||||||||||
|
2009 |
2008 |
2007 |
2009 |
2008 |
2007 |
||||||
Fair value of options vested |
$ |
266 |
$ |
435 |
$ |
737 |
$ |
208 |
$ |
353 |
$ |
579 |
Intrinsic value of options exercised |
|
204 |
|
182 |
|
79 |
|
204 |
|
182 |
|
11 |
Cash received from exercises |
|
591 |
|
707 |
|
281 |
|
591 |
|
707 |
|
40 |
Tax benefits realized from exercises |
|
80 |
|
71 |
|
31 |
|
80 |
|
71 |
|
4 |
|
|
|
|
|
|
|
|
|
|
|
|
|
As of December 31, 2009, IDACORP and Idaho Power had
recognized all compensation cost related to stock options. IDACORP uses
original issue and/or treasury shares to satisfy exercised options.
95
IDACORPs and Idaho Powers stock option transactions are
summarized below. Idaho Power share amounts represent the portion of IDACORP
amounts related to Idaho Power employees:
|
|
|
Weighted |
|
|||
|
|
Weighted- |
Average |
Aggregate |
|||
|
Number |
Average |
Remaining |
Intrinsic |
|||
|
of |
Exercise |
Contractual |
Value |
|||
|
Shares |
Price |
Term |
(000s) |
|||
IDACORP |
|
|
|
|
|||
Outstanding at December 31, 2008 |
783,985 |
$ |
34.84 |
3.57 |
$ |
641 |
|
|
Exercised |
(25,800) |
|
22.92 |
|
|
|
|
Forfeited |
(3,632) |
|
29.75 |
|
|
|
|
Expired |
(138,550) |
|
39.69 |
|
|
|
Outstanding at December 31, 2009 |
616,003 |
$ |
34.27 |
2.74 |
$ |
965 |
|
|
|
|
|
|
|
|
|
Vested or expected to vest at December 31, 2009 |
615,961 |
$ |
34.27 |
2.74 |
$ |
965 |
|
Exercisable at December 31, 2009 |
597,409 |
$ |
34.41 |
2.67 |
$ |
923 |
|
|
|
|
|
|
|
|
|
Idaho Power |
|
|
|
|
|
|
|
Outstanding at December 31, 2008 |
576,996 |
$ |
34.34 |
3.67 |
$ |
611 |
|
|
Exercised |
(25,800) |
|
22.92 |
|
|
|
|
Forfeited |
(3,632) |
|
29.75 |
|
|
|
|
Expired |
(133,600) |
|
39.86 |
|
|
|
Outstanding at December 31, 2009 |
413,964 |
$ |
33.31 |
2.96 |
$ |
862 |
|
|
|
|
|
|
|
|
|
Vested or expected to vest at December 31, 2009 |
413,932 |
$ |
33.31 |
2.96 |
$ |
862 |
|
Exercisable at December 31, 2009 |
397,903 |
$ |
33.45 |
2.87 |
$ |
826 |
|
|
|
|
|
|
|
|
Compensation Expense:
The following table shows the
compensation cost recognized in income and the tax benefits resulting from
these plans, as well as the amounts allocated to Idaho Power for those costs
associated with Idaho Powers employees (in thousands of dollars):
|
IDACORP |
Idaho Power |
||||||||||
|
2009 |
2008 |
2007 |
2009 |
2008 |
2007 |
||||||
Compensation cost |
$ |
4,199 |
$ |
3,897 |
$ |
2,745 |
$ |
3,986 |
$ |
3,683 |
$ |
2,473 |
Income tax benefit |
$ |
1,642 |
$ |
1,524 |
$ |
1,073 |
$ |
1,587 |
$ |
1,440 |
$ |
967 |
|
|
|
|
|
|
|
|
|
|
|
|
|
No equity compensation costs have been capitalized.
8. EARNINGS PER SHARE
The following table presents the computation of IDACORPs
basic and diluted earnings per common share (in thousands, except for per share
amounts):
96
|
Year ended December 31, |
||||||||
|
2009 |
2008 |
2007 |
||||||
Numerator: |
|
|
|
|
|
|
|||
|
Income from continuing operations attributable to IDACORP, Inc. |
$ |
124,350 |
$ |
98,414 |
$ |
82,272 |
||
Denominator: |
|
|
|
|
|
|
|||
|
Weighted-average shares outstanding - basic |
|
47,124 |
|
45,268 |
|
44,291 |
||
|
Effect of dilutive securities: |
|
|
|
|
|
|
||
|
|
Options |
|
16 |
|
37 |
|
45 |
|
|
|
Restricted Stock |
|
42 |
|
74 |
|
29 |
|
|
|
|
Weighted-average shares outstanding diluted |
|
47,182 |
|
45,379 |
|
44,365 |
|
|
|
|
|
|
|
|||
Basic and diluted earnings per share from continuing operations |
$ |
2.64 |
$ |
2.17 |
$ |
1.86 |
|||
The diluted EPS computation excluded 594,107 options in
2009, 556,518 options in 2008 and 487,100 options in 2007 because the options
exercise prices were greater than the average market price of the common stock
during those years. In total, 616,003 options were outstanding at December 31,
2009, with expiration dates between 2010 and 2015.
In January 2009, IDACORP adopted accounting guidance that
clarified that unvested share-based payment awards that contain non-forfeitable
rights to dividends or dividend equivalents (whether paid or unpaid) are
participating securities and shall be included in the computation of EPS
pursuant to the two-class method. Adoption of this guidance did not have a
material impact on IDACORPs EPS.
9. COMMITMENTS:
Purchase Obligations:
At December 31, 2009, Idaho Power had the following
long-term commitments relating to purchases of energy, capacity, transmission
rights and fuel:
|
2010 |
2011 |
2012 |
2013 |
2014 |
Thereafter |
||||||||
|
(thousands of dollars) |
|||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
||
Cogeneration and power production |
$ |
210,999 |
$ |
229,740 |
$ |
124,051 |
$ |
113,884 |
$ |
114,850 |
$ |
1,680,001 |
||
Power and transmission rights |
|
44,298 |
|
21,979 |
|
8,699 |
|
3,296 |
|
2,404 |
|
7,612 |
||
Fuel |
|
64,132 |
|
64,130 |
|
52,671 |
|
54,032 |
|
53,136 |
|
95,346 |
||
|
|
|
|
|
|
|
|
|
|
|
|
|
||
As of December 31, 2009, Idaho Power had signed agreements
to purchase energy from 96 CSPP facilities with contracts ranging from one to
30 years. Eighty of these facilities, with a combined nameplate capacity of
298 MW, were on-line at the end of 2009; the other 16 facilities under
contract, with a combined nameplate capacity of 266 MW, are projected to come
on-line during 2010 and 2011. The majority of the new facilities will be wind
resources which will generate on an intermittent basis. During 2009, Idaho
Power purchased 970,419 megawatt-hours (MWh) from these projects at a cost of
$59 million, resulting in a blended price of 6.1 cents per kilowatt hour.
Idaho Power purchased 756,014 megawatt-hours at a cost of $45.9 million in
2008, and 777,147 megawatt-hours at a cost of $45 million in 2007.
In addition, IDACORP has the following long-term commitments
for lease guarantees, equipment, maintenance and services, and industry related
fees.
|
2010 |
2011 |
2012 |
2013 |
2014 |
Thereafter |
||||||||||||
|
(thousands of dollars) |
|||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
Operating leases |
$ |
2,769 |
$ |
2,059 |
$ |
1,324 |
$ |
1,335 |
$ |
1,403 |
$ |
5,737 |
||||||
Equipment, maintenance, and service |
|
|
|
|
|
|
|
|
|
|
|
|
||||||
|
agreements |
|
58,491 |
|
14,492 |
|
8,357 |
|
7,339 |
|
3,296 |
|
6,933 |
|||||
FERC and other industry related fees |
|
7,016 |
|
6,475 |
|
6,540 |
|
6,505 |
|
4,199 |
|
20,534 |
||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
IDACORPs expense for operating leases was approximately
$3.5 million in 2009, $3 million in 2008 and $3 million in 2007.
Guarantees
Idaho Power has agreed to guarantee the performance of reclamation
activities at Bridger Coal Company of which IERCo owns a one-third interest.
This guarantee, which is renewed each December, was $63 million at December 31,
2009. Bridger Coal Company has a reclamation trust fund set aside specifically
for the purpose of paying these reclamation costs. At this time Bridger Coal
Company is revising their estimate of future reclamation costs. To ensure that
the reclamation trust fund maintains adequate reserves, Bridger Coal Company
has the ability to add a per ton surcharge if it is determined that future
liabilities exceed the trusts assets. Because of the existence of the fund
and the ability to apply a per ton surcharge, the estimated fair value of this
guarantee is minimal.
97
10. CONTINGENCIES
Legal Proceedings
Western Energy Proceedings at the FERC:
Throughout
this report, the term western energy situation is used to refer to the
California energy crisis that occurred during 2000 and 2001, and the energy
shortages, high prices and blackouts in the western United States. High prices
for electricity in California and in western wholesale markets during 2000 and
2001 caused numerous purchasers of electricity in those markets to initiate
proceedings seeking refunds or other forms of relief. Some of these
proceedings (the western energy proceedings) remain pending before the FERC or
on appeal to the United States Court of Appeals for the Ninth Circuit (Ninth
Circuit).
There are pending in the Ninth Circuit approximately 200
petitions for review of numerous FERC orders regarding the western energy
situation. Decisions in these appeals may have implications with respect to
other pending cases, including those to which Idaho Power or IE are parties.
Idaho Power and IE intend to vigorously defend their positions in these
proceedings, but are unable to predict the outcome of these matters. Except as
to the matters described below under Pacific Northwest Refund, Idaho Power
and IE believe that settlement releases they have obtained that are described
below under California Refund and Market Manipulation will restrict
potential claims that might result from the disposition of the pending Ninth
Circuit review petitions and that these matters will not have a material
adverse effect on their consolidated financial positions, results of operations
or cash flows.
California Refund:
This proceeding originated with
an effort by agencies of the State of California and investor-owned utilities
in California to obtain refunds for a portion of the spot market sales from
sellers of electricity into California markets from October 2, 2000, through
June 20, 2001. The FERC has issued numerous orders establishing price
mitigation plans for sales in the California wholesale electricity market,
including the methodology for determining refunds. IE and numerous other
parties have petitioned the Ninth Circuit for review of the FERCs orders on
California refunds. As additional FERC orders have been issued, further
petitions for review have been filed before the Ninth Circuit, which from time
to time has identified discrete cases that can proceed to briefing and decision
while it stayed action on the other consolidated cases.
On May 22, 2006 the FERC approved an Offer of Settlement
between and among IE and Idaho Power, the California Parties (Pacific Gas &
Electric Company, San Diego Gas & Electric Company, Southern California
Edison Company, the California Public Utilities Commission, the California
Electricity Oversight Board, the California Department of Water Resources and
the California Attorney General) and additional parties that elected to be
bound by the settlement. The settlement disposed of matters encompassed by the
California refund proceeding, as well as other claims and investigations
relating to the western energy situation among and between the parties agreeing
to be bound by it. Although many market participants agreed to be bound by the
settlement, other market participants, representing a small minority of
potential refund claims, initially elected not to be bound by the settlement.
From time to time, as the California Parties have reached settlements with
those other market participants, they have elected to opt into the IE-Idaho
Power-California Parties settlement. The settlement provided for
approximately $23.7 million of IEs and Idaho Powers estimated $36 million
rights to accounts receivable from the Cal ISO and the California Power
Exchange (CalPX) to be assigned to an escrow account for refunds and for an
additional $1.5 million of accounts receivable to be retained by the CalPX
until the conclusion of the litigation. The additional $1.5 million of
accounts receivable retained by the CalPX is available to fund the claims of
non-settling parties if they prevail in the remaining litigation of these
California market matters. Any additional amounts owed to non-settling parties
would be funded by other amounts owed to IE and Idaho Power by the Cal ISO and
CalPX, or directly by IE and Idaho Power, and any excess funds remaining at the
end of the case would be returned to IE and Idaho Power. The remaining IE and
Idaho Power receivables were paid to IE and Idaho Power under the settlement.
In an August 2006 decision, the Ninth Circuit ruled that all
transactions that occurred within the CalPX and the Cal ISO markets were proper
subjects of the refund proceeding. In that decision the Ninth Circuit refused
to expand the proceedings into the bilateral market, approved the refund
effective date as October 2, 2000, required the FERC to consider claims that
some market participants had violated governing tariff obligations at an
earlier date than the refund effective date, and expanded the scope of the refund
proceeding to include transactions within the CalPX and Cal ISO markets outside
the limited 24-hour spot market and energy exchange transactions. Parts of the
decision exposed sellers to increased claims for potential refunds. The Ninth
Circuit issued its mandate on April 15, 2009, thereby officially returning the
cases to the FERC for further action consistent with the courts decision.
98
On November 19, 2009, the FERC issued an order to implement
the Ninth Circuits remand. The remand order established a trial-type hearing
in which participants will be permitted to submit information regarding (i)
specified tariff violations committed by any public utility seller from January
1, 2000 - October 2, 2000 resulting in a transaction that set a market clearing
price for the trading period when the violation occurred and (ii) claims for
refunds for multi-day transactions and energy exchange transactions entered
into during the refund period (October 2, 2000 June 20, 2001). Numerous
parties including IE and Idaho Power filed motions to clarify the FERCs
order. Although IE and Idaho Power are unable to predict when or how FERC will
rule on these motions, the effect of the remand order for IE and Idaho Power is
confined to the minority of market participants that are not bound by the
IE-Idaho Power-California Parties settlement described above. Accordingly, IE
and Idaho Power believe the remanded proceedings will not have a material
adverse effect on their consolidated financial positions, results of operations
or cash flows.
In 2005, the FERC established a framework for sellers
wanting to demonstrate that the generally applicable FERC refund methodology
interfered with the recovery of costs. IE and Idaho Power made such a cost
filing, which was rejected by the FERC. On June 18, 2009, FERC issued an order
stating that it was not ruling on IEs and Idaho Powers request for rehearing
of the cost filing rejection because their request had been withdrawn in
connection with the IE-Idaho Power-California Parties settlement. On July 8,
2009 IE and Idaho Power sought further rehearing at the FERC because their
withdrawal pertained only to the parties with whom IE and Idaho Power had
settled. On June 18, 2009, in a separate order, the FERC ruled that only net refund
recipients were responsible for the costs associated with cost filings. While
most net refund recipients are bound by the settlement, until the Cal ISO
completes its refund calculations, it is uncertain whether there are any net
refund recipients who are not bound by the settlement If there are no such
parties, then IEs and Idaho Powers request for rehearing will be moot. FERC
has not yet ruled on the request for rehearing. IE and Idaho Power are unable
to predict how or when the FERC might rule, but the effect of any such ruling
is confined to obligations of IE and Idaho Power to the small minority of
claims of market participants that are not bound by the settlement.
Accordingly, IE and Idaho Power believe this matter will not have a material
adverse effect on their consolidated financial positions, results of operations
or cash flows.
Market Manipulation:
On June 25, 2003, the FERC
ordered more than 50 entities that participated in the western wholesale power
markets between January 1, 2000, and June 20, 2001, including Idaho Power, to
show cause why certain trading practices did not constitute gaming (gaming)
or other forms of proscribed market behavior in concert with another party
(partnership) in violation of the Cal ISO and CalPX Tariffs. In 2004, the
FERC dismissed the partnership show cause proceeding against Idaho Power.
Later in 2004, the FERC approved a settlement of the gaming proceeding
without finding of wrongdoing by Idaho Power.
The orders establishing the scope of the show cause
proceedings are presently the subject of review petitions in the Ninth
Circuit. Although IE and Idaho Power are unable to predict how or when the
Ninth Circuit will act on these review petitions, in light of the settlement
described above, IE and Idaho Power believe this matter will not have a
material adverse effect on their consolidated financial positions, results of
operations or cash flows.
On June 25, 2003, the FERC also issued an order instituting
an investigation of anomalous bidding behavior and practices in the western
wholesale markets for the time period May 1, 2000, through October 1, 2000, but
the FERC terminated its investigations as to Idaho Power on May 12, 2004.
California government agencies and California investor-owned utilities have
appealed the FERCs termination of this investigation as to Idaho Power and
more than 30 other market participants. IE and Idaho Power are unable to
predict the outcome of these petitions for review proceedings, but believe that
the settlement releases govern any potential claims that might arise and that
this matter will not have a material adverse effect on their consolidated
financial positions, results of operations or cash flows.
99
Pacific Northwest Refund:
On July 25, 2001, the FERC
issued an order establishing a proceeding separate from the California refund
proceeding to determine whether there may have been unjust and unreasonable
charges for spot market sales in the Pacific Northwest during the period
December 25, 2000, through June 20, 2001, because the spot market in the
Pacific Northwest was affected by the dysfunction in the California market. In
2003, the FERC terminated the proceeding and declined to order refunds, but in
2007 the Ninth Circuit issued an opinion, in
Port of Seattle, Washington v.
FERC
, remanding to the FERC the orders that declined to require refunds.
The Ninth Circuits opinion instructed the FERC to consider whether evidence of
market manipulation would have altered the agencys conclusions about refunds
and directed the FERC to include sales to the California Department of Water
Resources (CDWR) in the scope of proceeding. The Ninth Circuit officially
returned the case to the FERC on April 16, 2009. On September 4, 2009, IE and
Idaho Power joined with a number of other parties in a joint petition for a
writ of certiorari to the U.S. Supreme Court, which was denied on January 11,
2010.
In separate filings, the California Parties, which no longer
include the California Electricity Oversight Board, and the City of Tacoma,
Washington and the Port of Seattle, Washington asked the FERC to take actions
to reorganize and restructure the case so that they may pursue claims that all
spot market sales in the Cal ISO and CalPX markets and in the Pacific Northwest
from January 1, 2000 through June 20, 2001 should be repriced, and thereby
become subject to refund, because market manipulation and tariff violations
affected spot market prices. This would expand the scope of the refund period
in the Pacific Northwest proceeding from the December 25, 2000 through June 20,
2001 period previously considered by the FERC. On May 22, 2009, the California
Parties filed a motion with the FERC to sever the CDWR sales from the remainder
of the Pacific Northwest proceedings and to consolidate the CDWR sales portion
of the Pacific Northwest case with ongoing proceedings in cases that IE and
Idaho Power have settled and with a new complaint filed on May 22, 2009 by the
California Attorney General against parties with whom the California Parties
have not settled (Brown Complaint). IE and Idaho Power, along with a number of
other parties, filed their opposition to the motion of the California Parties.
Many other parties also filed responses to the motion of the California
Parties. The City of Tacoma, Washington and the Port of Seattle, Washington
filed a motion on August 4, 2009 with the FERC in connection with the
California refund proceeding, the
Lockyer
remand pending before the FERC
(involving claims of failure to file quarterly transaction reports with the
FERC, from which IE and Idaho Power previously were dismissed), the Brown
Complaint and the Pacific Northwest refund remand proceeding. The City of
Tacoma and the Port of Seattle motion asks the FERC, either on a summary basis
or after new evidentiary hearings, to require refunds from all sellers in the
Pacific Northwest spot markets for the expanded period (January 1, 2000 through
June 20, 2001). IE and Idaho Power joined with a number of other sellers in
the Pacific Northwest markets during 2000 and 2001 in opposing the motion of
the City of Tacoma and the Port of Seattle. IE and Idaho Power intend to
vigorously defend their positions in these proceedings, but are unable to
predict the outcome of these matters or estimate the impact these matters may
have on their consolidated financial positions, results of operations or cash
flows.
Western Shoshone National Council:
On April 10,
2006, the Western Shoshone National Council (which purports to be the governing
body of the Western Shoshone Nation) and certain of its individual tribal
members filed a First Amended Complaint and Demand for Jury Trial in the U.S.
District Court for the District of Nevada, naming Idaho Power and other
unrelated entities as defendants. Plaintiffs allege that Idaho Powers
ownership interest in certain land, minerals, water or other resources was
converted and fraudulently conveyed from lands in which the plaintiffs had historical
ownership rights and Indian title dating back to the 1860s or before.
On May 31, 2007, the U.S. District Court granted the
defendants motion to dismiss stating that the plaintiffs claims are barred by
the finality provision of the Indian Claims Commission Act, and entered
judgment in favor of Idaho Power on January 25, 2008. Plaintiffs appealed the
district courts decision to the Ninth Circuit which affirmed the district
courts dismissal of the action. The time within which plaintiffs could pursue
further review has expired.
Sierra Club Lawsuit-Bridger:
In February 2007, the
Sierra Club and the Wyoming Outdoor Council filed a complaint against
PacifiCorp in the U.S. District Court for the District of Wyoming alleging
violations of air quality opacity standards at the Jim Bridger coal-fired plant
in Sweetwater County, Wyoming. Opacity is an indication of the amount of light
obscured by the flue gas of a power plant. The complaint alleged thousands of
opacity permit violations by PacifiCorp and sought a declaration that
PacifiCorp had violated opacity limits, a permanent injunction ordering
PacifiCorp to comply with such limits, civil penalties of up to $32,500 per day
per violation, and reimbursement of plaintiffs costs of litigation, including
reasonable attorneys fees. Idaho Power is not a party to this proceeding but
has a one-third ownership interest in the plant. PacifiCorp owns a two-thirds
interest in and is the operator of the plant. On February 10, 2010, PacifiCorp
and plaintiffs reached an agreement in principle to the settlement of the
lawsuit in its entirety. The settlement is subject to the approval of the
Environmental Protection Agency and the court. If approved, the settlement
will not have a material adverse effect on Idaho Powers consolidated financial
positions, results of operations or cash flows.
100
Sierra Club Lawsuit Boardman:
In September 2008,
the Sierra Club and four other non-profit corporations filed a complaint
against Portland General Electric Company (PGE) in the U.S. District Court for
the District of Oregon alleging opacity permit limit violations at the Boardman
coal-fired plant located in Morrow County, Oregon. The complaint also alleged
violations of the Clean Air Act, related federal regulations and the Oregon
State Implementation Plan relating to PGEs construction and operation of the
plant. The complaint sought a declaration that PGE had violated opacity
limits, a permanent injunction ordering PGE to comply with such limits,
injunctive relief requiring PGE to remediate alleged environmental damage and
ongoing impacts, civil penalties of up to $32,500 per day per violation, and
reimbursement of plaintiffs costs of litigation, including reasonable
attorneys fees. Idaho Power is not a party to this proceeding but has a 10
percent ownership interest in the Boardman plant. PGE owns 65 percent and is
the operator of the plant.
On December 5, 2008, PGE filed a motion to dismiss nine of
the twelve claims asserted by plaintiffs in their complaint, alleging among
other arguments that certain claims are barred by the statute of limitations or
fail to state a claim upon which the court can grant relief. On September 30,
2009, the court denied most of PGEs motion to dismiss. Idaho Power continues
to monitor the status of this matter but is unable to predict its outcome or
what effect this matter may have on its consolidated financial position,
results of operations or cash flows.
Snake River Basin Adjudication:
Idaho Power is
engaged in the Snake River Basin Adjudication (SRBA), a general stream
adjudication, commenced in 1987, to define the nature and extent of water
rights in the Snake River basin in Idaho, including the water rights of Idaho
Power.
On March 25, 2009, Idaho Power and the State of Idaho
(State) entered into a settlement agreement with respect to the 1984 Swan Falls
Agreement and Idaho Powers water rights under the Swan Falls Agreement, which
settlement agreement is subject to certain conditions discussed below. The
settlement agreement will also resolve litigation between Idaho Power and the
State relating to the Swan Falls Agreement that was filed by Idaho Power on May
10, 2007, with the Idaho District Court for the Fifth Judicial Circuit, which
has jurisdiction over SRBA matters including the Swan Falls case.
The settlement agreement resolves the pending litigation by
clarifying that Idaho Powers water rights in excess of minimum flows at its
hydroelectric facilities between Milner Dam and Swan Falls Dam are subordinate
to future upstream beneficial uses, including aquifer recharge. The agreement
commits the State and Idaho Power to further discussions on important water
management issues concerning the Swan Falls Agreement and the management of
water in the Snake River Basin. It also recognizes that water management
measures that enhance aquifer levels, springs and river flows, such as aquifer
recharge projects, benefit both agricultural development and hydropower
generation and deserve study to determine their economic potential, their
impact on the environment and their impact on hydropower generation. These
will be a part of the Comprehensive Aquifer Management Plan (CAMP), approved by
the Idaho Water Resource Board for the Eastern Snake Plain Aquifer (ESPA),
which includes limits on the amount of aquifer recharge. Idaho Power is a
member of the ESPA CAMP advisory committee and implementation committee.
On April 24, 2009, the Governor of Idaho signed into law
legislation approving provisions contained in the settlement agreement. On May
6, 2009, as part of the settlement, Idaho Power, the Governor of Idaho and the
Idaho Water Resource Board executed a memorandum of agreement relating to
future aquifer recharge efforts and further assurances as to limitations on the
amount of aquifer recharge. Idaho Power and the State also filed a joint
motion to the SRBA court to dismiss the Swan Falls case and enter the
stipulated water right decrees set forth in the settlement agreement. Parties
representing groundwater users in the Eastern Snake Plain Aquifer objected to
some of the language proposed by Idaho Power and the State relating to water
rights in the decrees to be entered by the SRBA court as contemplated by the
Settlement Agreement. Specifically, the concerns relate to the language
describing the subordination of the rights and its interplay with the original
Swan Falls settlement document and implementing legislation. On January 4,
2010, the court issued an order approving the overall settlement subject to
certain modifications to the draft water right decrees proposed by the company
and the state. The company is working with the state and the parties to reach
agreement consistent with the courts order regarding the language of the
decrees.
101
U.S. Bureau of Reclamation:
Idaho Power filed a
complaint on October 15, 2007 and an amended complaint on September 30, 2008 in
the U.S. District Court of Federal Claims in Washington, D.C. against the U.S.
Bureau of Reclamation. The complaint relates to a contract right for delivery of
water to its hydropower projects on the Snake River to recover damages from the
U.S. for the lost generation resulting from reduced flows and a prospective
declaration of contractual rights so as to prevent the U.S. from continued
failure to fulfill its contractual and fiduciary duties to Idaho Power. In
1923, Idaho Power and the U.S. entered into a contract that facilitated the
development of the American Falls Reservoir by the U.S. on the Snake River in
southeast Idaho. This 1923 contract entitles Idaho Power to 45,500 acre-feet
of primary storage capacity in the reservoir and 255,000 acre-feet of secondary
storage that was to be available to Idaho Power between October 1 of any year
and June 10 of the following year as necessary to maintain specified water
flows at Idaho Powers Twin Falls power plant below Milner Dam. Idaho Power
believes that the U.S. has failed to deliver this secondary storage, at the
specified flows, since 2001. Discovery is scheduled to be completed by March
3, 2010. Trial of the matter has not been
scheduled. Idaho Power is unable to predict the outcome of this action.
Oregon Trail Heights Fire:
On August 25, 2008, a
fire ignited beneath an Idaho Power distribution line in Boise, Idaho. It was
fanned by high winds and spread rapidly, resulting in one death, the
destruction of 10 homes and damage or alleged fire related losses to
approximately 30 others. Following the investigation, the Boise Fire
Department determined that the fire was linked to a piece of line hardware on one
of Idaho Powers distribution poles and that high winds contributed to the fire
and its resultant damage.
Idaho Power has received notice of claims from a number of
the homeowners and their insurers and while it has continued investigation of
these claims, Idaho Power has reached settlements with a number of the
individuals or their insurers who have alleged damages resulting from the
fire. Idaho Power is insured up to policy limits against liability for claims
in excess of its self-insured retention. Idaho Power has accrued for any loss
that is probable and reasonably estimable, including insurance deductibles, and
believes this matter will not have a material adverse effect on its
consolidated financial position, results of operations or cash flows.
Other Legal Proceedings:
IDACORP, Idaho Power and/or
IE are parties to legal claims, actions and proceedings in addition to those
discussed above. Resolution of any of these matters will take time and the
companies cannot predict the outcome of any of these proceedings. The
companies believe that their reserves are adequate for these matters and that
resolution of these matters, taking into account existing reserves, will not
have a material adverse effect on IDACORPs or Idaho Powers consolidated financial
positions, results of operations or cash flows.
11. BENEFIT PLANS:
Pension Plans
Idaho Power has a noncontributory defined benefit pension
plan covering most employees. The benefits under the plan are based on years
of service and the employees final average earnings. Idaho Powers policy is
to fund, with an independent corporate trustee, at least the minimum required
under the Employee Retirement Income Security Act of 1974 (ERISA) but not more
than the maximum amount deductible for income tax purposes. Idaho Power was
not required to contribute to the plan in 2009, 2008 or 2007. The
market-related value of assets for the plan is equal to the fair value of the
assets. Fair value is determined by utilizing publicly quoted market values
and independent pricing services depending on the nature of the asset, as
reported by the trustee/custodian of the plan.
In addition, Idaho Power has a
nonqualified, deferred compensation plan for certain senior management
employees and directors called the Senior Management Security Plan (SMSP). At
December 31, 2009 and 2008, approximately $40.3 million and $39.9 million,
respectively, of life insurance policies and investments in marketable
securities, all of which are held by a trustee, were designated to satisfy the
projected benefit obligation of the plan but do not qualify as plan assets in
the actuarial computation of the funded status.
102
The following table summarizes the changes in benefit
obligations and plan assets of these plans:
The following table shows the
components of net periodic benefit cost for these plans:
|
Pension Plan |
SMSP |
|||||||||||
|
2009 |
2008 |
2007 |
2009 |
2008 |
2007 |
|||||||
|
(thousands of dollars) |
||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Service cost |
$ |
16,514 |
$ |
14,920 |
$ |
15,213 |
$ |
1,610 |
$ |
1,278 |
$ |
1,409 |
|
Interest cost |
|
27,865 |
|
26,393 |
|
24,457 |
|
2,854 |
|
2,669 |
|
2,372 |
|
Expected return on assets |
|
(23,965) |
|
(34,112) |
|
(33,387) |
|
- |
|
- |
|
- |
|
Amortization of net loss |
|
8,857 |
|
- |
|
- |
|
232 |
|
489 |
|
566 |
|
Amortization of prior service cost |
|
650 |
|
650 |
|
650 |
|
659 |
|
192 |
|
173 |
|
|
Net periodic pension cost |
$ |
29,921 |
$ |
7,851 |
$ |
6,933 |
$ |
5,355 |
$ |
4,628 |
$ |
4,520 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
In 2010, IDACORP and Idaho Power expect to recognize as
components of net periodic benefit cost $9.5 million from amortizing amounts
recorded in accumulated other comprehensive income (or as a regulatory asset
for the pension plan) as of December 31, 2009, relating to the pension and SMSP
plans. This amount consists of $7.7 million of amortization of net loss, and
$0.7 million of amortization of prior service cost for the pension plan and
$0.9 million of amortization of net loss and $0.2 million of amortization of
prior service cost for the SMSP.
103
The following table summarizes the expected future benefit
payments of these plans:
|
|
2010 |
|
2011 |
|
2012 |
|
2013 |
|
2014 |
|
2015-2019 |
|
|
(thousands of dollars) |
||||||||||
Pension Plan |
$ |
19,453 |
$ |
20,785 |
$ |
22,654 |
$ |
24,716 |
$ |
26,586 |
$ |
169,665 |
SMSP |
$ |
3,332 |
$ |
3,349 |
$ |
3,483 |
$ |
3,703 |
$ |
3,890 |
$ |
21,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Pension Protection Act:
In accordance with the
Pension Protection Act of 2006 (PPA), and the relief provisions of the Worker,
Retiree, and Employer Recovery Act of 2008 (WRERA), which was signed into law
on December 23, 2008, companies are required to meet minimum funding levels in
order to avoid benefit restrictions. The WRERA also provides for asset
smoothing, which allows the use of asset averaging, including expected returns
(subject to certain limitations), for a 24-month period in the determination of
the funding requirements. IDACORP and Idaho Power have elected to use asset
smoothing.
On March 31, 2009, the U.S. Department of the Treasury
(Treasury) provided guidance on the selection of the corporate bond yield curve
for determining plan liabilities and allows companies to choose from a range of
months in selecting a yield curve, rather than requiring the use of prescribed
rates. The Treasurys announcement specifically referenced 2009, but also
indicated that technical guidance will be forthcoming to address future years.
The revisions in the PPA, WRERA, Treasury guidance, and IRS guidance resulted
in IDACORP and Idaho Power revising the funded status as of January 1, 2009,
effectively reducing or delaying the required contributions from IDACORP and
Idaho Power from what would otherwise be required, and what was previously
disclosed. At January 1, 2009, Idaho Powers pension plan was above the
minimum required funding levels as revised by the PPA, WRERA, Treasury guidance
and IRS guidance, but below the minimum required funding levels at January 1,
2010, and is projected to stay below the minimum required funding levels
through 2015. As Idaho Powers pension plan is below the minimum required
funding levels at January 1, 2010, future minimum contributions are required.
Based on the provisions and methodologies allowed under the PPA, WRERA,
Treasury guidance and IRS guidance, IDACORP and Idaho Power were not required
to contribute to their pension plan in 2009, and estimated minimum required
contributions will be approximately $6 million in 2010, $44 million in 2011 $47
million in 2012, $39 million in 2013, and $40 million in 2014. IDACORP and
Idaho Power may elect to make contributions earlier than the required dates.
The IRS and Treasury have issued final regulations effective
October 15, 2009 that apply to plan years beginning on or after January 1,
2010. These regulations reflect provisions added by the PPA, as amended by the
WRERA. These regulations affect sponsors, administrators, participants, and
beneficiaries of single employer defined benefit pension plans. The
regulations provide guidance regarding the determination of the value of plan
assets and benefit liabilities for purposes of the funding requirements,
regarding the use of certain funding balances maintained for those plans, and
regarding benefit restrictions for certain underfunded defined benefit pension
plans. These final regulations did not materially change existing estimates
relating to pension plan contributions.
Additional legislative or regulatory measures, as well as
fluctuations in financial market conditions, may impact funding requirements.
IDACORP and Idaho Power continue to monitor the legislative and regulatory
environments for additional changes, evaluating them for their potential impact
on funding requirements and strategies.
Postretirement Benefits
Idaho Power maintains a defined benefit postretirement plan (consisting of
health care and death benefits) that covers all employees who were enrolled in
the active group plan at the time of retirement as well as their spouses and
qualifying dependents. Benefits for employees who retire after December 31,
2002, are limited to a fixed amount, which will limit the growth of Idaho
Powers future obligations under this plan.
104
The following table summarizes
the changes in benefit obligation and plan assets (in thousands of dollars):
The net periodic postretirement benefit
cost was as follows (in thousands of dollars):
|
2009 |
2008 |
2007 |
|||
Service cost |
$ |
1,221 |
$ |
1,154 |
$ |
1,368 |
Interest cost |
|
3,565 |
|
3,498 |
|
3,512 |
Expected return on plan assets |
|
(2,146) |
|
(2,899) |
|
(2,777) |
Amortization of net loss |
|
842 |
|
- |
|
403 |
Amortization of prior service cost |
|
(535) |
|
(535) |
|
(535) |
Amortization of unrecognized transition obligation |
|
2,040 |
|
2,040 |
|
2,040 |
Net periodic postretirement benefit cost |
$ |
4,987 |
$ |
3,258 |
$ |
4,011 |
|
|
|
|
|
|
|
In 2010, IDACORP and Idaho Power expect to recognize as
components of net periodic benefit cost $2.1 million from amortizing amounts
recorded in accumulated other comprehensive income as of December 31, 2009
relating to the postretirement plan. This amount consists of ($0.5) million of
prior service cost, $0.6 million of net loss and $2.0 million of transition
obligation.
Medicare Act:
The
Medicare Prescription Drug, Improvement and Modernization Act of 2003 was
signed into law in December 2003 and established a prescription drug benefit,
as well as a federal subsidy to sponsors of retiree health care benefit plans
that provide a prescription drug benefit that is at least actuarially
equivalent to Medicares prescription drug coverage.
105
The following table summarizes
the expected future benefit payments of the postretirement benefit plan and
expected Medicare Part D subsidy receipts (in thousands of dollars):
The assumed health care cost
trend rate used to measure the expected cost of health benefits covered by the
plan was eight percent and ten percent in 2009 and 2008, respectively. The
assumed health care cost trend rate for 2009 is assumed to decrease gradually
to five percent by 2066. The assumed dental cost trend rate used to measure
the expected cost of dental benefits covered by the plan was five percent in
both 2009 and 2008. A 1-percentage point change in the assumed health care
cost trend rate would have the following effects at December 31, 2009 (in thousands
of dollars):
|
1-Percentage-Point |
|||
|
Increase |
|
Decrease |
|
|
|
|
|
|
Effect on total of cost components |
$ |
288 |
$ |
(218) |
Effect on accumulated postretirement benefit obligation |
$ |
2,471 |
$ |
(1,949) |
|
|
|
|
|
Plan Assumptions
:
The following table sets forth the weighted-average assumptions used at the end
of each year to determine benefit obligations for all Idaho Power-sponsored
pension and postretirement benefits plans:
|
Pension |
Postretirement |
||
|
Benefits |
Benefits |
||
|
2009 |
2008 |
2009 |
2008 |
Discount rate |
5.9% |
6.1% |
5.9% |
6.1% |
Rate of compensation increase |
4.5% |
4.5% |
- |
- |
Medical trend rate |
- |
- |
8.0% |
10.0% |
Dental trend rate |
- |
- |
5.0% |
5.0% |
Measurement date |
12/31/09 |
12/31/08 |
12/31/09 |
12/31/08 |
|
|
|
|
|
The following table sets forth the weighted-average assumptions
used to determine net periodic benefit cost for all Idaho Power-sponsored
pension and postretirement benefit plans:
|
Pension |
Postretirement |
||
|
Benefits |
Benefits |
||
|
2009 |
2008 |
2009 |
2008 |
Discount rate |
6.1% |
6.4% |
6.1% |
6.4% |
Expected long-term rate of return on assets |
8.5% |
8.5% |
8.5% |
8.5% |
Rate of compensation increase |
4.5% |
4.5% |
- |
- |
Medical trend rate |
- |
- |
8.0% |
10.0% |
Dental trend rate |
- |
- |
5.0% |
5.0% |
|
|
|
|
|
106
Plan Assets:
Idaho Powers pension plan and postretirement benefit plan assets
at December 31, by asset category, are as follows:
|
Pension |
Postretirement |
||||||||
|
Plan |
Benefits |
||||||||
Asset Category |
2009 |
2008 |
2009 |
2008 |
||||||
Cash and cash equivalents |
$ |
4,512 |
$ |
4,666 |
$ |
- |
$ |
- |
||
Short-term bonds |
|
30,774 |
|
36,553 |
|
- |
|
- |
||
Core bonds |
|
41,165 |
|
46,652 |
|
- |
|
- |
||
Equity securities |
|
184,562 |
|
152,172 |
|
- |
|
- |
||
Real estate |
|
20,783 |
|
37,418 |
|
- |
|
- |
||
Private market investments |
|
20,202 |
|
17,863 |
|
- |
|
- |
||
Commodities |
|
11,476 |
|
- |
|
- |
|
- |
||
Other (1) |
|
- |
|
- |
|
30,892 |
|
25,283 |
||
|
Total |
$ |
313,474 |
$ |
295,324 |
$ |
30,892 |
$ |
25,283 |
|
(1) The postretirement benefits assets are primarily life insurance contracts. |
|
|||||||||
|
|
|||||||||
Pension Asset Allocation Policy:
The target
allocation and actual allocations at December 31, 2009 for the portfolio by
asset class are as follows:
|
|
Actual |
|
|
Target |
Allocation |
|
|
Allocation |
December 31, 2009 |
|
|
|
|
|
Large-cap core stocks |
14% |
12.2% |
|
Large-cap growth stocks |
7% |
9.2% |
|
Large-cap value stocks |
7% |
9.0% |
|
Small-cap growth stocks |
5% |
4.5% |
|
Small-cap value stocks |
5% |
5.3% |
|
Micro-cap stocks |
3% |
3.2% |
|
International growth stocks |
7% |
7.2% |
|
International value stocks |
7% |
8.3% |
|
Commodities |
3% |
3.7% |
|
Private market investments |
7% |
6.5% |
|
Short-term bonds |
10% |
9.8% |
|
Core bonds |
13% |
13.1% |
|
Cash and cash equivalents |
3% |
1.4% |
|
Real estate |
9% |
6.6% |
|
|
Total |
100% |
100% |
|
|
|
|
Assets are rebalanced as
necessary to keep the portfolio close to target allocations.
The plans principal
investment objective is to maximize total return (defined as the sum of
realized interest and dividend income and realized and unrealized gain or loss
in market price) consistent with prudent parameters of risk and the liability
profile of the portfolio. Emphasis is placed on preservation and growth of
capital along with adequacy of cash flow sufficient to fund current and future
payments to pensioners.
There are three major goals in Idaho Powers asset
allocation process:
Determine if the investments have the potential to earn the rate of return assumed in the actuarial liability calculations.
Match the cash flow needs of the plan. Idaho Power sets bond allocations sufficient to cover at least five years of benefit payments and cash allocations sufficient to cover the current year benefit payments. Idaho Power then utilizes growth instruments (equities, real estate, venture capital) to fund the longer-term liabilities of the plan.
107
Maintain a prudent risk profile consistent with ERISA fiduciary standards.
Allowable plan investments include stocks and stock funds,
investment-grade bonds and bond funds, core real estate funds, private equity
funds, and cash and cash equivalents. With the exception of real estate
holdings and private equity, investments must be readily marketable so that an
entire holding can be disposed of quickly with only a minor effect upon market price.
Rate-of-return projections for
plan assets are based on historical risk/return relationships among asset
classes. The primary measure is the historical risk premium each asset class
has delivered versus the return on 10-year U.S. Treasury Notes. This
historical risk premium is then added to the current yield on 10-year U.S.
Treasury Notes, and the result provides a reasonable prediction of future
investment performance. Additional analysis is performed to measure the
expected range of returns, as well as worstcase and best-case scenarios. Based
on the current low interest rate environment, current rate-of-return
expectations are lower than the nominal returns generated over the past 20
years when interest rates were generally much higher.
Idaho Powers asset modeling process also utilizes
historical market returns to measure the portfolios exposure to a worst-case
market scenario, to determine how much performance could vary from the expected
average performance over various time periods. This worst-case modeling,
in addition to cash flow matching and diversification by asset class and
investment style, provides the basis for managing the risk associated with
investing portfolio assets.
Fair Value of Plan
Assets:
Idaho Power classifies
its pension plan and postretirement plan investments using the following
hierarchy:
Level 1, which refers to securities valued using quoted prices from active markets for identical assets;
Level 2, which refers to securities not traded on an active market but for which observable market inputs are readily available; and
Level 3, which refers to
securities valued based on significant unobservable inputs.
If the inputs used to measure the securities
fall within different levels of the hierarchy, the categorization is based on
the lowest level input (Level 3
being the lowest) that is significant to the
fair value measurement of the security. The following table sets forth by level within the fair value hierarchy
a summary of the plans investments measured at fair value on a recurring basis
at December 31.
|
Quoted Prices in |
Significant |
Significant |
|
|||||
|
Active Markets |
Other |
Unobservable |
|
|||||
|
for Identical |
Observable |
Inputs |
|
|||||
|
Assets (Level 1) |
Inputs (Level 2) |
(Level 3) |
Total |
|||||
Assets at December 31, 2009 |
|
|
|
|
|
|
|
|
|
Pension assets : |
|
|
|
|
|
|
|
|
|
Cash and cash equivalents |
$ |
4,512 |
$ |
- |
$ |
- |
$ |
4,512 |
|
Short-term bonds |
|
30,774 |
|
- |
|
- |
|
30,774 |
|
Core bonds |
|
41,165 |
|
- |
|
- |
|
41,165 |
|
Equity securities |
|
126,049 |
|
58,513 |
|
- |
|
184,562 |
|
Real estate |
|
- |
|
- |
|
20,783 |
|
20,783 |
|
Private market investments |
|
- |
|
- |
|
20,202 |
|
20,202 |
|
Commodities |
|
- |
|
11,476 |
|
- |
|
11,476 |
|
|
Total pension assets |
$ |
202,500 |
$ |
69,989 |
$ |
40,985 |
$ |
313,474 |
Postretirement assets |
$ |
- |
$ |
30,892 |
$ |
- |
$ |
30,892 |
|
|
|
|
|
|
|
|
|
|
|
108
The following table presents a reconciliation of the
beginning and ending balances of the fair value measurements using significant
unobservable inputs (Level 3):
Private |
Real |
|
||||
Equity |
Estate |
Total |
||||
Beginning balance - January 1, 2009 |
$ |
17,863 |
$ |
37,418 |
$ |
55,281 |
Realized losses |
|
(1,040) |
|
(671) |
|
(1,711) |
Unrealized gains (losses) |
|
3,103 |
|
(14,912) |
|
(11,809) |
Purchases, issuances, and settlements, net |
|
276 |
|
(1,052) |
|
(776) |
Ending balance - December 31, 2009 |
$ |
20,202 |
$ |
20,783 |
$ |
40,985 |
|
|
|
|
Employee Savings Plan
Idaho Power has an Employee Savings Plan that complies with
Section 401(k) of the Internal Revenue Code and covers substantially all
employees. Idaho Power matches specified percentages of employee contributions
to the plan. Matching contributions amounted to $5 million in each of 2009,
2008 and 2007.
Post-employment Benefits
Idaho Power provides certain benefits to former or inactive
employees, their beneficiaries and covered dependents after employment but
before retirement. These benefits include salary continuation, health care and
life insurance for those employees found to be disabled under Idaho Powers
disability plans and health care for surviving spouses and dependents. Idaho
Power accrues a liability for such benefits. The post employment benefit
amounts included in other deferred credits on IDACORPs and Idaho Powers consolidated
balance sheets at December 31, 2009 and 2008 are $5.2 million and $3.7 million,
respectively.
12. PROPERTY PLANT AND EQUIPMENT AND JOINTLY-OWNED PROJECTS:
The following table presents the major classifications of
Idaho Powers utility plant in service, annual depreciation provisions as a
percent of average depreciable balance and accumulated provision for
depreciation for the years 2009 and 2008 (in thousands of dollars):
|
2009 |
2008 |
|||||
|
Balance |
Avg Rate |
Balance |
Avg Rate |
|||
Production |
$ |
1,758,813 |
2.23% |
$ |
1,736,670 |
2.34% |
|
Transmission |
|
768,260 |
2.07 |
|
742,871 |
2.11 |
|
Distribution |
|
1,331,065 |
2.89 |
|
1,254,048 |
2.50 |
|
General and Other |
|
302,040 |
7.88 |
|
296,545 |
7.53 |
|
|
Total in service |
|
4,160,178 |
2.81% |
|
4,030,134 |
2.73% |
Accumulated provision for depreciation |
|
(1,558,538) |
|
|
(1,505,120) |
|
|
|
In service - net |
$ |
2,601,640 |
|
$ |
2,525,014 |
|
|
|
|
|
|
|
|
Idaho Power has interests in three jointly-owned generating
facilities included in the table above. Under the joint operating agreements,
each participating utility is responsible for financing its share of
construction, operating and leasing costs. Idaho Powers proportionate share
of direct operation and maintenance expenses applicable to the projects is
included in the Consolidated Statements of Income.
These facilities, and the extent of Idaho Powers
participation, were as follows at December 31, 2009 (in thousands of dollars):
109
Idaho Powers wholly-owned subsidiary IERCo, is a joint
venturer in Bridger Coal Company, which operates the mine supplying coal to the
Jim Bridger generating plant. Idaho Powers coal purchases from the joint venture
were $66 million, $63 million and $51 million 2009, 2008 and 2007,
respectively.
Idaho Power has contracts to purchase the energy from four
PURPA qualified facilities that are 50 percent owned by Ida-West. Idaho
Powers power purchases from these facilities were $8.7 million in 2009 and $8
million in 2008 and 2007.
See Note 1 for a discussion of the property of IDACORPs
consolidated VIE.
13. ASSET RETIREMENT OBLIGATIONS (ARO):
The guidance relating to accounting for AROs requires that
legal obligations associated with the retirement of property, plant and
equipment be recognized as a liability at fair value when incurred and when a
reasonable estimate of the fair value of the liability can be made. Under the
guidance, when a liability is initially recorded, the entity increases the
carrying amount of the related long-lived asset to reflect the future
retirement cost. Over time, the liability is accreted to its present value and
paid, and the capitalized cost is depreciated over the useful life of the
related asset. If, at the end of the assets life, the recorded liability
differs from the actual obligations paid, a gain or loss would be recognized.
As a rate-regulated entity, Idaho Power records regulatory assets or
liabilities instead of accretion, depreciation and gains or losses, as approved
by Order No. 29414 from the IPUC. The regulatory assets recorded under this
order do not earn a return on investment.
Idaho Powers recorded AROs relate to the removal of polychlorinated
biphenyls-contaminated equipment at its distribution facilities and the
reclamation and removal costs at its jointly owned coal-fired generation
facilities. In 2009, changes in estimates at the coal-fired generation
facilities resulted in a net increase of $3.7 million in the recorded ARO.
Idaho Power also has AROs associated with its transmission
system and hydroelectric facilities; however, due to the indeterminate removal
date, the fair value of the associated liabilities currently cannot be
estimated and no amounts are recognized in the consolidated financial
statements.
The regulated operations of Idaho Power also collect removal
costs in rates for certain assets that do not have associated AROs. Idaho
Power is required to redesignate these removal costs as regulatory
liabilities. Costs recorded as regulatory liabilities on IDACORPs and Idaho
Powers Consolidated Balance Sheets as of December 31, 2009 and 2008, were $155
million and $157 million, respectively.
The following table presents the changes in the carrying
amount of AROs (in thousands of dollars):
|
IDACORP |
Idaho Power |
|||||||
|
2009 |
2008 |
2009 |
2008 |
|||||
Balance at beginning of year |
$ |
12,415 |
$ |
14,515 |
$ |
12,415 |
$ |
14,515 |
|
Accretion expense |
|
697 |
|
701 |
|
697 |
|
701 |
|
Revisions in estimated cash flows |
|
3,684 |
|
(2,627) |
|
3,684 |
|
(2,627) |
|
Liability incurred |
|
139 |
|
- |
|
139 |
|
- |
|
Liability settled |
|
(695) |
|
(174) |
|
(695) |
|
(174) |
|
|
Balance at end of year |
$ |
16,240 |
$ |
12,415 |
$ |
16,240 |
$ |
12,415 |
|
|
|
|
|
|
|
|
|
|
110
14. INVESTMENTS:
The following table summarizes IDACORPs and Idaho Powers
investments as of December 31 (in thousands of dollars):
|
2009 |
2008 |
|||||
Idaho Power Investments: |
|
|
|
|
|||
|
Equity method investment |
$ |
83,969 |
$ |
86,433 |
||
|
Available-for-sale equity securities |
|
18,842 |
|
14,451 |
||
|
Executive deferred compensation plan |
|
5,217 |
|
4,679 |
||
|
Other investments |
|
267 |
|
948 |
||
|
|
Total Idaho Power investments |
|
108,295 |
|
106,511 |
|
Investments in affordable housing |
|
77,809 |
|
74,951 |
|||
Equity method investments |
|
9,991 |
|
10,030 |
|||
Held-to-maturity debt securities |
|
- |
|
9,424 |
|||
Executive deferred compensation plan |
|
1,069 |
|
1,225 |
|||
Other investments |
|
18 |
|
66 |
|||
|
Total IDACORP investments |
$ |
197,182 |
$ |
202,207 |
||
|
|
|
|
|
|||
Equity Method Investments
Idaho Power, through its subsidiary IERCo, is a 33 percent
owner of Bridger Coal Company, which supplies coal to the Jim Bridger
generating plant owned in part by Idaho Power. Ida-West, through separate
subsidiaries, owns 50 percent of three electric generation projects: South
Forks Joint Venture; Hazelton/Wilson Joint Venture and Snow Mountain Hydro
LLC. IFS invests in affordable housing developments. All projects are
reviewed periodically for impairment.
The following table presents IDACORPs and Idaho Powers
earnings (loss) of unconsolidated equity-method investments (in thousands of
dollars):
|
2009 |
2008 |
2007 |
||||
Bridger Coal Company (Idaho Power) |
$ |
8,256 |
$ |
6,772 |
$ |
5,553 |
|
Ida-West projects |
|
1,933 |
|
1,830 |
|
1,820 |
|
IFS affordable housing projects |
|
|
|
|
|
|
|
|
(excluding tax credits) |
|
(11,222) |
|
(12,599) |
|
(12,197) |
|
Total |
$ |
(1,033) |
$ |
(3,997) |
$ |
(4,824) |
Investments in Debt and Equity Securities
Investments in debt and equity securities classified as
available-for-sale securities are reported at fair value, using either specific
identification or average cost to determine the cost for computing gains or losses.
Any unrealized gains or losses on available-for-sale securities are included in
other comprehensive income.
Investments classified as held-to-maturity securities are
reported at amortized cost. Held-to-maturity securities are investments in
debt securities for which the company has the positive intent and ability to
hold the securities until maturity.
The following table summarizes investments in debt and
equity securities (in thousands of dollars):
111
|
2009 |
2008 |
|||||||||||
|
Gross |
Gross |
|
Gross |
Gross |
|
|||||||
|
Unrealized |
Unrealized |
Fair |
Unrealized |
Unrealized |
Fair |
|||||||
|
Gain |
Loss |
Value |
Gain |
Loss |
Value |
|||||||
Available-for-sale |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
securities (Idaho Power) |
$ |
2,989 |
$ |
- |
$ |
18,842 |
$ |
- |
$ |
- |
$ |
14,451 |
Held-to-maturity debt |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
securities (IFS) |
|
- |
|
- |
|
- |
|
3 |
|
25 |
|
9,448 |
The following table summarizes sales of available-for-sale
securities (in thousands of dollars):
|
2009 |
2008 |
2007 |
|||
|
|
|
|
|
|
|
Proceeds from sales |
$ |
9,006 |
$ |
- |
$ |
26,110 |
Gross realized gains from sales |
|
11 |
|
- |
|
2,093 |
Gross realized losses from sales |
|
35 |
|
- |
|
762 |
|
|
|
|
|
|
|
These investments are evaluated to determine whether they
have experienced a decline in market value that is other-than-temporary.
IDACORP and Idaho Power analyze securities in loss positions as of the end of
each reporting period. At December 31, 2009, IDACORP and Idaho Power did not
have any securities that were in a loss position. At December 31, 2008, four
available-for-sale and six held-to-maturity securities were in an unrealized
loss position. The available-for-sale equity securities in unrealized loss
positions were broadly diversified index funds used to fund Idaho Powers
SMSP. Due to the severity of the losses and the volatility of the market the
available-for-sale securities were deemed other-than-temporarily impaired and
written down $6.8 million to fair market value at December 31, 2008. The
held-to-maturity debt securities were bonds with an aggregate fair value of
approximately $4 million and an aggregate unrealized loss of $25 thousand at
December 31, 2008. The bonds market values fluctuated based on the interest
rate environment. IDACORP and Idaho Power did not recognize any
other-than-temporary impairments in 2007.
15. DERIVATIVE FINANCIAL INSTRUMENTS
Commodity Price Risk
Idaho Power is exposed to certain risks relating to its
ongoing business operations. The primary risk managed by using derivative
instruments is commodity price risk related to Idaho Powers ongoing utility
operations providing electricity to meet the demand of its retail customers.
Physical and financial forward contracts for both electricity and fuel used to
produce electricity are entered into to manage the price risk associated with
meeting forecasted loads. The objective of Idaho Powers energy purchase and
sale activity is to meet the demand of retail electric customers, maintain
appropriate physical reserves to ensure reliability and make economic use of
temporary surpluses that may develop.
All derivative instruments are recognized as either assets
or liabilities at fair value on the balance sheet. Idaho Powers physical
forward contracts qualify for the normal purchases and normal sales exception
to derivative accounting requirements with the exception of forward contracts
for the purchase of natural gas for use at Idaho Powers natural gas generation
facilities. Because of Idaho Powers power cost mechanisms, Idaho Power
records the changes in fair value of derivative instruments related to power
supply as regulatory assets or liabilities.
As of December 31, 2009, Idaho Power had the following
outstanding derivative commodity forward contracts that were entered into for
the purpose of economically hedging forecasted purchases and sales:
Commodity |
Number of Units |
|
Electricity purchases |
705,625 |
MWh |
Electricity sales |
567,525 |
MWh |
Natural gas |
1,356,250 |
MMBtu |
Diesel |
901,932 |
gallons |
|
|
|
112
The following table presents the fair values of derivatives
not designated as hedging instruments recorded in the balance sheet at December
31, 2009 (in thousands of dollars):
|
|
Asset Derivatives |
Liability Derivatives |
|||||
|
|
Balance Sheet |
Fair |
Balance Sheet |
Fair |
|||
Commodity derivatives |
Location |
Value |
Location |
Value |
||||
Current: |
|
|
|
|
|
|
||
|
Financial swaps |
Other current assets |
$ |
2,931 |
Other current assets |
$ |
2,087 |
|
|
Financial swaps |
Other current liabilities |
|
9 |
Other current liabilities |
|
610 |
|
|
Forward contracts |
Other current assets |
|
354 |
Other current assets |
|
- |
|
Long-term: |
|
|
|
|
|
|
||
|
Financial swaps |
Other assets |
|
442 |
Other assets |
|
229 |
|
|
|
Total |
|
$ |
3,736 |
|
$ |
2,926 |
|
|
|
|
|
|
|
|
|
The following table presents the effect on income of
derivatives not designated as hedging instruments for the year ended December
31, 2009 (in thousands of dollars):
Idaho Power records changes in fair value of its derivative
contracts as either regulatory assets or liabilities. Settlement gains and losses
on electricity swap contracts are recorded on the income statement in
off-system sales or purchased power depending on the forecasted position being
economically hedged by the derivative contract. Settlement gains and losses on
both financial and physical contracts for natural gas are reflected in fuel
expense. Settlement gains and losses on diesel derivatives, which were
immaterial for all three years, are recorded in fuel inventory on the balance
sheet.
Credit Risk
At December 31, 2009, Idaho Power does not have material
credit exposure from financial instruments, including derivatives. Idaho Power
monitors credit risk exposure through reviews of counterparty credit quality,
corporate-wide counterparty credit exposure, and corporate-wide counterparty
concentration levels. Idaho Power manages these risks by establishing
appropriate credit and concentration limits on transactions with counterparties
and requiring contractual guarantees, cash deposits or letters of credit from
counterparties or their affiliates, as deemed necessary. The majority of Idaho
Powers contracts are under the Western Systems Power Pool agreement that
provides for adequate assurances if a counterparty has debt that is downgraded
to below investment grade by at least one rating agency. Idaho Power also
requires North American Energy Standards Board contracts as necessary for
physical gas transactions, and International Swaps and Derivatives Association,
Inc. contracts as needed for financial transactions.
113
Credit-Contingent Features
Certain of Idaho Powers derivative instruments contain
provisions that require Idaho Powers unsecured debt to maintain an investment
grade credit rating from each of the major credit rating agencies. If Idaho
Powers unsecured debt were to fall below investment grade, it would be in
violation of these provisions, and the counterparties to the derivative
instruments could request immediate payment or demand immediate and ongoing
full overnight collateralization on derivative instruments in net liability
positions. The aggregate fair value of all derivative instruments with
credit-risk-related contingent features that are in a liability position on
December 31, 2009, is $2.9 million. Idaho Power has posted $1.3 million
collateral related to this amount. If the credit-risk-related contingent
features underlying these agreements were triggered on December 31, 2009, Idaho
Power could have been required to post $0.5 million of cash collateral to its
counterparties.
16. FAIR VALUE MEASUREMENTS:
IDACORP and Idaho Power have categorized their financial
instruments, based on the priority of the inputs to the valuation technique,
into a three-level fair value hierarchy. The fair value hierarchy gives the
highest priority to quoted prices in active markets for identical assets or
liabilities (Level 1) and the lowest priority to unobservable inputs (Level
3). If the inputs used to measure the financial
instruments fall within different levels of the hierarchy, the categorization
is based on the lowest level input that is significant to the fair value
measurement of the instrument.
Financial assets and liabilities
recorded on the Consolidated Balance Sheets are categorized based on the inputs
to the valuation techniques as follows:
Level 1: Financial assets and liabilities whose values are
based on unadjusted quoted prices for identical assets or liabilities in an
active market that IDACORP and Idaho Power has the ability to access.
Level 2: Financial assets and
liabilities whose values are based on the following:
a) Quoted prices for similar assets or liabilities in active markets;
b) Quoted prices for identical or similar assets or liabilities in non-active markets;
c) Pricing models whose inputs are observable for substantially the full term of the asset or liability;
d) Pricing
models whose inputs are derived principally from or corroborated by observable
market data through correlation or other means for substantially the full term
of the asset or liability.
IDACORP and Idaho Power Level 2 inputs are based on quoted
market prices adjusted for location using corroborated, observable market data.
Level 3: Financial assets and liabilities whose values are
based on prices or valuation techniques that require inputs that are both
unobservable and significant to the overall fair value measurement. These
inputs reflect managements own assumptions about the assumptions a market
participant would use in pricing the asset or liability.
Idaho Powers derivatives are contracts entered into as part
of our management of loads and resources. Electricity swaps are valued on the
Intercontinental Exchange with quoted prices in an active market. Natural gas
and diesel derivative valuations are performed using New York Mercantile
Exchange (NYMEX) pricing, adjusted for basis location, which are also quoted
under NYMEX. Trading securities consists of employee-directed investments held
in a Rabbi Trust and are related to an executive deferred compensation plan.
Available-for-sale securities are related to the SMSP and are held in a Rabbi
Trust and are actively traded money market and equity funds with quoted prices
in active markets.
114
The following tables present information about IDACORPs and
Idaho Powers assets and liabilities measured at fair value on a recurring
basis (in thousands of dollars). IDACORPs and Idaho Powers assessment of the
significance of a particular input to the fair value measurement requires
judgment and may affect the valuation of fair value assets and liabilities and
their placement within the fair value hierarchy. Please see Note 11 for fair
value information regarding IDACORPs and Idaho Powers benefit plans.
|
Quoted Prices in |
Significant |
Significant |
|
|||||||
|
Active Markets |
Other |
Unobservable |
|
|||||||
|
for Identical |
Observable |
Inputs |
|
|||||||
|
Assets (Level 1) |
Inputs (Level 2) |
(Level 3) |
Total |
|||||||
2009 |
|
|
|
|
|
|
|
|
|||
IDACORP |
|
|
|
|
|
|
|
|
|||
Assets: |
|
|
|
|
|
|
|
|
|||
|
Derivatives |
$ |
1,056 |
$ |
354 |
$ |
- |
$ |
1,410 |
||
|
Money market funds |
|
38,221 |
|
- |
|
- |
|
38,221 |
||
|
Trading securities |
|
6,286 |
|
- |
|
- |
|
6,286 |
||
|
Available-for-sale equity securities |
|
18,842 |
|
- |
|
- |
|
18,842 |
||
Liabilities: |
|
|
|
|
|
|
|
|
|||
|
Derivatives |
|
(601) |
|
- |
|
- |
|
(601) |
||
Idaho Power |
|
|
|
|
|
|
|
|
|||
Assets: |
|
|
|
|
|
|
|
|
|||
|
Derivatives |
$ |
1,056 |
$ |
354 |
$ |
- |
$ |
1,410 |
||
|
Money market funds |
|
19,364 |
|
- |
|
- |
|
19,364 |
||
|
Trading securities |
|
5,217 |
|
- |
|
- |
|
5,217 |
||
|
Available-for-sale equity securities |
|
18,842 |
|
- |
|
- |
|
18,842 |
||
Liabilities: |
|
|
|
|
|
|
|
|
|||
|
Derivatives |
|
(601) |
|
- |
|
- |
|
(601) |
||
|
|
|
|
|
|
|
|
|
|||
2008 |
|
|
|
|
|
|
|
|
|||
IDACORP |
|
|
|
|
|
|
|
|
|||
Assets: |
|
|
|
|
|
|
|
|
|||
|
Derivatives |
$ |
652 |
$ |
- |
$ |
- |
$ |
652 |
||
|
Money market funds |
|
4,610 |
|
- |
|
- |
|
4,610 |
||
|
Trading securities |
|
5,904 |
|
- |
|
- |
|
5,904 |
||
|
Available-for-sale equity securities |
|
14,451 |
|
- |
|
- |
|
14,451 |
||
Liabilities: |
|
|
|
|
|
|
|
|
|||
|
Derivatives |
|
- |
|
(2,653) |
|
- |
|
(2,653) |
||
Idaho Power |
|
|
|
|
|
|
|
|
|||
Assets: |
|
|
|
|
|
|
|
|
|||
|
Derivatives |
$ |
652 |
$ |
- |
$ |
- |
$ |
652 |
||
|
Money market funds |
|
1,224 |
|
- |
|
- |
|
1,224 |
||
|
Trading securities |
|
4,679 |
|
- |
|
- |
|
4,679 |
||
|
Available-for-sale equity securities |
|
14,451 |
|
- |
|
- |
|
14,451 |
||
Liabilities: |
|
|
|
|
|
|
|
|
|||
|
Derivatives |
|
- |
|
(2,653) |
|
- |
|
(2,653) |
||
|
|
|
|
|
|
|
|
|
|||
115
The following tables present the carrying value and
estimated fair value of financial instruments that are not reported at fair
value, using available market information and appropriate valuation
methodologies. The use of different market assumptions and/or estimation
methodologies may have a material effect on the estimated fair value amounts.
Cash and cash equivalents, deposits, customer and other receivables, notes
payable, accounts payable, interest accrued and taxes accrued are reported at
their carrying value as these are a reasonable estimate of their fair value.
The estimated fair values for notes receivable and long-term debt are based
upon quoted market prices of the same or similar issues or discounted cash flow
analyses as appropriate.
|
December 31, 2009 |
December 31, 2008 |
||||||
|
Carrying |
Estimated |
Carrying |
Estimated |
||||
|
Amount |
Fair Value |
Amount |
Fair Value |
||||
|
(thousands of dollars) |
|||||||
IDACORP |
|
|
|
|
|
|
|
|
Assets: |
|
|
|
|
|
|
|
|
Notes receivable |
$ |
2,946 |
$ |
2,946 |
$ |
5,703 |
$ |
5,726 |
Liabilities: |
|
|
|
|
|
|
|
|
Long-term debt |
|
1,422,130 |
|
1,406,815 |
|
1,277,042 |
|
1,199,699 |
|
|
|
|
|
|
|
|
|
Idaho Power |
|
|
|
|
|
|
|
|
Assets: |
|
|
|
|
|
|
|
|
Notes receivable |
$ |
- |
$ |
- |
$ |
259 |
$ |
282 |
Liabilities: |
|
|
|
|
|
|
|
|
Long-term debt |
|
1,413,854 |
|
1,398,681 |
|
1,268,818 |
|
1,191,476 |
|
|
|
|
|
|
|
|
|
17. SEGMENT INFORMATION:
IDACORPs only reportable
segment is utility operations. The utility operations segments primary source
of revenue is the regulated operations of Idaho Power. Idaho Powers regulated
operations include the generation, transmission, distribution, purchase and
sale of electricity. This segment also includes income from IERCo, a
wholly-owned subsidiary of Idaho Power that is also subject to regulation and
is a one-third owner of Bridger Coal Company, an unconsolidated joint venture.
IDACORPs other operating
segments are below the quantitative thresholds for reportable segments and are
included in the All Other category. This category is comprised of IFSs
investments in affordable housing developments and historic rehabilitation
projects, Ida-Wests joint venture investments in small hydroelectric
generation projects, the remaining activities of energy marketer IE, which
wound down its operations in 2003, and IDACORPs holding company expenses.
116
The following table summarizes
the segment information for IDACORPs utility operations and the total of all
other segments, and reconciles this information to total enterprise amounts (in
thousands of dollars):
|
Utility |
All |
|
Consolidated |
||||
|
Operations |
Other |
Eliminations |
Total |
||||
2009 |
|
|
|
|
|
|
|
|
Revenues |
$ |
1,045,996 |
$ |
3,804 |
$ |
- |
$ |
1,049,800 |
Operating income |
|
206,193 |
|
(2,610) |
|
- |
|
203,583 |
Other income |
|
10,704 |
|
1,227 |
|
- |
|
11,931 |
Interest income |
|
4,859 |
|
490 |
|
(283) |
|
5,066 |
Equity method income (loss) |
|
8,256 |
|
(9,289) |
|
- |
|
(1,033) |
Interest expense |
|
71,932 |
|
1,161 |
|
(283) |
|
72,810 |
Income (loss) before income taxes |
|
158,080 |
|
(11,343) |
|
- |
|
146,737 |
Income tax expense (benefit) |
|
35,521 |
|
(13,159) |
|
- |
|
22,362 |
Income attributable to IDACORP, Inc. |
|
122,559 |
|
1,791 |
|
- |
|
124,350 |
Total assets |
|
4,073,390 |
|
192,699 |
|
(27,362) |
|
4,238,727 |
Expenditures for long-lived assets |
|
251,937 |
|
14 |
|
- |
|
251,951 |
2008 |
|
|
|
|
|
|
|
|
Revenues |
$ |
956,076 |
$ |
4,338 |
$ |
- |
$ |
960,414 |
Operating income |
|
189,375 |
|
1,292 |
|
- |
|
190,667 |
Other income (loss) |
|
2,124 |
|
(1,912) |
|
- |
|
212 |
Interest income |
|
2,929 |
|
1,582 |
|
(892) |
|
3,619 |
Equity method income (loss) |
|
6,772 |
|
(10,769) |
|
- |
|
(3,997) |
Interest expense |
|
69,485 |
|
4,463 |
|
(892) |
|
73,056 |
Income (loss) before income taxes |
|
131,715 |
|
(14,270) |
|
- |
|
117,445 |
Income tax expense (benefit) |
|
37,600 |
|
(18,400) |
|
- |
|
19,200 |
Income attributable to IDACORP, Inc. |
|
94,115 |
|
4,299 |
|
- |
|
98,414 |
Total assets |
|
3,884,856 |
|
164,339 |
|
(26,350) |
|
4,022,845 |
Expenditures for long-lived assets |
|
243,544 |
|
273 |
|
- |
|
243,817 |
2007 |
|
|
|
|
|
|
|
|
Revenues |
$ |
875,401 |
$ |
3,993 |
$ |
- |
$ |
879,394 |
Operating income (loss) |
|
154,777 |
|
(2,699) |
|
- |
|
152,078 |
Other income (loss) |
|
7,436 |
|
(368) |
|
- |
|
7,068 |
Interest income |
|
2,980 |
|
3,126 |
|
(1,553) |
|
4,553 |
Equity method income (loss) |
|
5,553 |
|
(10,377) |
|
- |
|
(4,824) |
Interest expense |
|
58,781 |
|
6,113 |
|
(1,553) |
|
63,341 |
Income (loss) before income taxes |
|
111,965 |
|
(16,431) |
|
- |
|
95,534 |
Income tax expense (benefit) |
|
35,386 |
|
(21,655) |
|
- |
|
13,731 |
Income attributable to IDACORP, Inc. |
|
76,579 |
|
5,760 |
|
- |
|
82,339 |
Total assets |
|
3,489,516 |
|
235,636 |
|
(71,844) |
|
3,653,308 |
Expenditures for long-lived assets |
|
287,219 |
|
46 |
|
- |
|
287,265 |
|
|
|
|
|
|
|
|
|
117
18. OTHER INCOME AND EXPENSE:
The following table presents the components of Other income
and Other expense (in thousands of dollars):
|
2009 |
2008 |
2007 |
||||
Other income: |
|
|
|
|
|
|
|
Allowance for funds used during construction-equity |
$ |
7,555 |
$ |
3,141 |
$ |
5,995 |
|
Investment income, net |
|
5,071 |
|
(5,273) |
|
6,855 |
|
Carrying charges |
|
4,471 |
|
6,709 |
|
3,437 |
|
Other |
|
3,967 |
|
7,284 |
|
4,237 |
|
|
Total |
$ |
21,064 |
$ |
11,861 |
$ |
20,524 |
|
|
|
|
|
|
|
|
Other expense: |
|
|
|
|
|
|
|
SMSP expense |
$ |
5,355 |
$ |
4,628 |
$ |
4,520 |
|
Life Insurance, net of proceeds |
|
(4,197) |
|
(381) |
|
(200) |
|
Other |
|
2,909 |
|
3,783 |
|
4,583 |
|
|
Total |
$ |
4,067 |
$ |
8,030 |
$ |
8,903 |
|
|
|
|
|
|
|
19. RELATED PARTY TRANSACTIONS (Idaho Power):
IDACORP
Idaho Power performs corporate functions such as financial,
legal and management services for IDACORP and its subsidiaries. Idaho Power
charges IDACORP for the costs of these services based on service agreements and
other specifically identified costs. For these services Idaho Power billed
IDACORP $0.9 million, $1 million and $2 million in 2009, 2008 and 2007,
respectively.
Ida-West
Idaho Power purchases all of the power generated by four of
Ida-Wests hydroelectric projects located in Idaho. Idaho Power paid $8.7
million in 2009 and $8 million in each of 2008 and 2007.
118
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and
Shareholders of IDACORP, Inc.
Boise, Idaho
We have audited the accompanying consolidated balance sheets
of IDACORP, Inc. and subsidiaries (the Company) as of December 31, 2009 and
2008, and the related consolidated statements of income, comprehensive income,
equity, and cash flows for each of the three years in the period ended December
31, 2009. Our audits also included the financial statement schedules listed in
the Index at Item 8. These financial statements and financial statement
schedules are the responsibility of the Companys management. Our
responsibility is to express an opinion on the financial statements and
financial statement schedules based on our audits.
We conducted our audits in accordance with the standards of
the Public Company Accounting Oversight Board (United States). Those standards
require that we plan and perform the audit to obtain reasonable assurance about
whether the financial statements are free of material misstatement. An audit
includes examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statements. An audit also includes assessing the
accounting principles used and significant estimates made by management, as
well as evaluating the overall financial statement presentation. We believe
that our audits provide a reasonable basis for our opinion.
In our opinion, such
consolidated financial statements present fairly, in all material respects, the
financial position of IDACORP, Inc. and subsidiaries at December 31, 2009 and
2008, and the results of their operations and their cash flows for each of the
three years in the period ended December 31, 2009, in conformity with
accounting principles generally accepted in the United States of America.
Also, in our opinion, such financial statement schedules, when considered in
relation to the basic consolidated financial statements taken as a whole,
present fairly, in all material respects, the information set forth therein.
As discussed in Note 1 to the
consolidated financial statements, the accompanying 2008 consolidated balance
sheet and 2008 and 2007 consolidated statements of income have been
retrospectively adjusted for the adoption of accounting guidance for
noncontrolling interests in consolidated financial statements and as discussed
in Note 2 to the consolidated financial statements, the Company adopted
guidance for accounting for uncertainty in income taxes on January 1, 2007.
We have also audited, in
accordance with the standards of the Public Company Accounting Oversight Board
(United States), the Companys internal control over financial reporting as of
December 31, 2009, based on the criteria established in
Internal
Control-Integrated Framework
issued by the Committee of Sponsoring
Organizations of the Treadway Commission and our report dated February 23, 2010
expressed an unqualified opinion on the Companys internal control over
financial reporting.
/s/
DELOITTE & TOUCHE LLP
Boise, Idaho
February 23, 2010
119
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and
Shareholder of Idaho Power Company
Boise, Idaho
We have audited the accompanying
consolidated balance sheets and statements of capitalization of Idaho Power
Company and subsidiary (the Company) as of December 31, 2009 and 2008, and
the related consolidated statements of income, comprehensive income, retained
earnings, and cash flows for each of the three years in the period ended
December 31, 2009. Our audits also included the financial statement schedule
listed in the Index at Item 8. These financial statements and financial
statement schedule are the responsibility of the Companys management. Our
responsibility is to express an opinion on the financial statements and
financial statement schedule based on our audits.
We conducted our audits in accordance with the standards of
the Public Company Accounting Oversight Board (United States). Those standards
require that we plan and perform the audit to obtain reasonable assurance about
whether the financial statements are free of material misstatement. An audit
includes examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statements. An audit also includes assessing the
accounting principles used and significant estimates made by management, as
well as evaluating the overall financial statement presentation. We believe
that our audits provide a reasonable basis for our opinion.
In our opinion, such
consolidated financial statements present fairly, in all material respects, the
financial position of Idaho Power Company and subsidiary at December 31, 2009
and 2008, and the results of their operations and their cash flows for each of
the three years in the period ended December 31, 2009, in conformity with
accounting principles generally accepted in the United States of America.
Also, in our opinion, such financial statement schedule, when considered in
relation to the basic consolidated financial statements taken as a whole,
presents fairly, in all material respects, the information set forth therein.
As discussed in Note 2 to the
consolidated financial statements, the Company adopted guidance for accounting
for uncertainty in income taxes on January 1, 2007.
We have also audited, in
accordance with the standards of the Public Company Accounting Oversight Board
(United States), the Companys internal control over financial reporting as of
December 31, 2009, based on the criteria established in
Internal
Control-Integrated Framework
issued by the Committee of Sponsoring
Organizations of the Treadway Commission and our report dated February 23, 2010
expressed an unqualified opinion on the Companys internal control over
financial reporting.
/s/
DELOITTE & TOUCHE LLP
Boise, Idaho
February 23, 2010
120
SUPPLEMENTAL FINANCIAL INFORMATION, UNAUDITED
QUARTERLY FINANCIAL DATA:
The following unaudited
information is presented for each quarter of 2009 and 2008 (in thousands of
dollars except for per share amounts). In the opinion of each company, all
adjustments necessary for a fair statement of such amounts for such periods
have been included. The results of operations for the interim periods are not
necessarily indicative of the results to be expected for the full year.
Accordingly, earnings information for any three-month period should not be
considered as a basis for estimating operating results for a full fiscal year.
Amounts are based upon quarterly statements and the sum of the quarters may not
equal the annual amount reported.
|
Quarter Ended |
|||||||
|
March 31 |
|
June 30 |
|
September 30 |
|
December 31 |
|
IDACORP, Inc. |
|
|
|
|
|
|
|
|
2009 |
|
|
|
|
|
|
|
|
Revenues |
$ |
228,574 |
$ |
243,634 |
$ |
324,509 |
$ |
253,083 |
Operating income |
|
35,634 |
|
49,472 |
|
79,603 |
|
38,873 |
Net income |
|
18,686 |
|
27,570 |
|
54,707 |
|
23,412 |
Net income attributable to IDACORP, Inc. |
|
18,884 |
|
27,475 |
|
54,478 |
|
23,513 |
Basic earnings per share |
|
0.40 |
|
0.59 |
|
1.16 |
|
0.49 |
Diluted earnings per share |
|
0.40 |
|
0.58 |
|
1.16 |
|
0.49 |
|
|
|
|
|
|
|
|
|
2008 |
|
|
|
|
|
|
|
|
Revenues |
$ |
213,440 |
$ |
230,226 |
$ |
299,716 |
$ |
217,032 |
Operating income |
|
44,756 |
|
40,529 |
|
81,577 |
|
23,805 |
Net income |
|
21,405 |
|
17,555 |
|
51,912 |
|
7,373 |
Net income attributable to IDACORP, Inc. |
|
21,716 |
|
17,515 |
|
51,739 |
|
7,444 |
Basic earnings per share |
|
0.48 |
|
0.39 |
|
1.15 |
|
0.16 |
Diluted earnings per share |
|
0.48 |
|
0.39 |
|
1.14 |
|
0.16 |
|
|
|
|
|
|
|
|
|
Idaho Power Company |
|
|
|
|
|
|
|
|
2009 |
|
|
|
|
|
|
|
|
Revenues |
$ |
228,029 |
$ |
242,518 |
$ |
323,128 |
$ |
252,321 |
Income from operations |
|
35,713 |
|
49,228 |
|
80,101 |
|
41,152 |
Net income |
|
19,284 |
|
26,326 |
|
51,057 |
|
25,892 |
|
|
|
|
|
|
|
|
|
2008 |
|
|
|
|
|
|
|
|
Revenues |
$ |
212,796 |
$ |
228,945 |
$ |
298,107 |
$ |
216,228 |
Income from operations |
|
45,160 |
|
40,388 |
|
81,112 |
|
22,715 |
Net income |
|
21,271 |
|
17,728 |
|
47,405 |
|
7,711 |
|
|
|
|
|
|
|
|
|
Operating income and net income were decreased in the fourth
quarter of 2008 by $7.4 million following a decision received from the FERC
increasing the OATT refund, and $6.8 million other-than-temporary impairment of
diversified index funds due to the decline in market value.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
None
ITEM 9A. CONTROLS AND PROCEDURES
Disclosure controls and procedures:
121
IDACORP:
The Chief Executive Officer and Chief Financial Officer of
IDACORP, based on their evaluation of IDACORPs disclosure controls and
procedures (as defined in Exchange Act Rule 13a-15(e)) as of December 31, 2009,
have concluded that IDACORPs disclosure controls and procedures are effective.
Idaho Power:
The Chief Executive Officer and Chief Financial Officer of
Idaho Power, based on their evaluation of Idaho Powers disclosure controls and
procedures (as defined in Exchange Act Rule 13a-15(e)) as of December 31, 2009,
have concluded that Idaho Powers disclosure controls and procedures are
effective.
Internal control over financial reporting:
IDACORP:
Managements Annual Report on Internal Control Over Financial Reporting
The management of IDACORP is responsible for establishing
and maintaining adequate internal control over financial reporting for
IDACORP. Internal control over financial reporting is defined in Rule
13a-15(f) promulgated under the Securities Exchange Act of 1934 as a process
designed by, or under the supervision of, the companys principal executive and
principal financial officers and effected by the companys board of directors,
management and other personnel, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial statements
for external purposes in accordance with accounting principles generally
accepted in the United States of America and includes those policies and
procedures that:
Pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the company;
Provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with accounting principles generally accepted in the United States of America, and that receipts and expenditures of the company are being made only in accordance with the authorizations of management and directors of the company; and
Provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the companys assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over
financial reporting may not prevent or detect misstatements. Projections of
any evaluation of effectiveness to future periods are subject to the risk that
controls may become inadequate because of changes in conditions, or that the
degree of compliance with the policies or procedures may deteriorate.
IDACORPs management assessed the effectiveness of the
companys internal control over financial reporting as of December 31, 2009.
In making this assessment, the companys management used the criteria set forth
by the Committee of Sponsoring Organizations of the Treadway Commission in
Internal
Control-Integrated Framework
.
Based on its assessment, management believes that, as of December
31, 2009 IDACORPs internal control over financial reporting is effective based
on those criteria.
IDACORPs independent registered public accounting firm has
audited the financial statements included in this Annual Report on Form 10-K
for the year ended December 31, 2009 and issued a report, which appears on the
next page and expresses an unqualified opinion on the effectiveness of
IDACORPs internal control over financial reporting as of December 31, 2009.
February 23, 2010
122
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Shareholders of IDACORP, Inc.
Boise, Idaho
We have audited the internal control over financial
reporting of IDACORP, Inc. and subsidiaries (the Company) as of December 31,
2009, based on the criteria established in
Internal Control-Integrated
Framework
issued by the Committee of Sponsoring Organizations of the
Treadway Commission. The Companys management is responsible for maintaining
effective internal control over financial reporting and for its assessment of
the effectiveness of internal control over financial reporting, included in the
accompanying
Managements Annual Report on Internal Control over Financial
Reporting
. Our responsibility is to express an opinion on the Companys
internal control over financial reporting based on our audit.
We conducted our audit in accordance with the standards of
the Public Company Accounting Oversight Board (United States). Those standards
require that we plan and perform the audit to obtain reasonable assurance about
whether effective internal control over financial reporting was maintained in
all material respects. Our audit included obtaining an understanding of
internal control over financial reporting, assessing the risk that a material
weakness exists, testing and evaluating the design and operating effectiveness
of internal control based on the assessed risk, and performing such other
procedures as we considered necessary in the circumstances. We believe that
our audit provides a reasonable basis for our opinion.
A companys internal control over financial reporting is a
process designed by, or under the supervision of, the companys principal
executive and principal financial officers, or persons performing similar
functions, and effected by the companys board of directors, management, and
other personnel to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles. A
companys internal control over financial reporting includes those policies and
procedures that (1) pertain to the maintenance of records that, in reasonable
detail, accurately and fairly reflect the transactions and dispositions of the
assets of the company; (2) provide reasonable assurance that transactions are
recorded as necessary to permit preparation of financial statements in
accordance with generally accepted accounting principles, and that receipts and
expenditures of the company are being made only in accordance with
authorizations of management and directors of the company; and (3) provide
reasonable assurance regarding prevention or timely detection of unauthorized
acquisition, use, or disposition of the companys assets that could have a
material effect on the financial statements.
Because of the inherent limitations of internal control over
financial reporting, including the possibility of collusion or improper
management override of controls, material misstatements due to error or fraud
may not be prevented or detected on a timely basis. Also, projections of any
evaluation of the effectiveness of the internal control over financial
reporting to future periods are subject to the risk that the controls may
become inadequate because of changes in conditions, or that the degree of
compliance with the policies or procedures may deteriorate.
In our opinion, the Company maintained, in all material
respects, effective internal control over financial reporting as of December
31, 2009, based on the criteria established in
Internal Control-Integrated
Framework
issued by the Committee of Sponsoring Organizations of the
Treadway Commission.
We have also audited, in accordance with the standards of
the Public Company Accounting Oversight Board (United States), the consolidated
financial statements and financial statement schedules as of and for the year
ended December 31, 2009 of the Company and our report dated February 23, 2010
expressed an unqualified opinion on those financial statements and financial
statement schedules and included an explanatory paragraph regarding the
Companys adoption of accounting guidance for noncontrolling interests in
consolidated financial statements..
/s/
DELOITTE & TOUCHE LLP
123
Boise, Idaho
February 23, 2010
Idaho Power Company:
Managements Annual Report on Internal Control Over Financial Reporting
The management of Idaho Power Company (Idaho Power) is
responsible for establishing and maintaining adequate internal control over
financial reporting of Idaho Power. Internal control over financial reporting
is defined in Rule 13a-15(f) promulgated under the Securities Exchange Act of
1934 as a process designed by, or under the supervision of, the companys
principal executive and principal financial officers and effected by the
companys board of directors, management and other personnel, to provide
reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with
accounting principles generally accepted in the United States of America and
includes those policies and procedures that:
Pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the company;
Provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with accounting principles generally accepted in the United States of America, and that receipts and expenditures of the company are being made only in accordance with the authorizations of management and directors of the company; and
Provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the companys assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over
financial reporting may not prevent or detect misstatements. Projections of
any evaluation of effectiveness to future periods are subject to the risk that
controls may become inadequate because of changes in conditions, or that the
degree of compliance with the policies or procedures may deteriorate.
Idaho Powers management assessed the effectiveness of the
companys internal control over financial reporting as of December 31, 2009.
In making this assessment, the companys management used the criteria set forth
by the Committee of Sponsoring Organizations of the Treadway Commission in
Internal
Control-Integrated Framework
.
Based on its assessment, management believes that, as of
December 31, 2009, Idaho Powers internal control over financial reporting is
effective based on those criteria.
Idaho Powers independent registered public accounting firm
has audited the financial statements included in this Annual Report on Form
10-K for the year ended December 31, 2009 and issued a report, which appears on
the next page and expresses an unqualified opinion on the effectiveness of
Idaho Powers internal control over financial reporting as of December 31,
2009.
February 23, 2010
124
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Shareholder of Idaho Power
Company
Boise, Idaho
We have audited the internal control over financial
reporting of Idaho Power Company and subsidiary (the Company) as of December
31, 2009, based on the criteria established in
Internal Control-Integrated
Framework
issued by the Committee of Sponsoring Organizations of the
Treadway Commission. The Companys management is responsible for maintaining
effective internal control over financial reporting and for its assessment of
the effectiveness of internal control over financial reporting, included in the
accompanying
Managements Annual Report on Internal Control over Financial
Reporting
. Our responsibility is to express an opinion on the Companys
internal control over financial reporting based on our audit.
We conducted our audit in accordance with the standards of
the Public Company Accounting Oversight Board (United States). Those standards
require that we plan and perform the audit to obtain reasonable assurance about
whether effective internal control over financial reporting was maintained in
all material respects. Our audit included obtaining an understanding of
internal control over financial reporting, assessing the risk that a material
weakness exists, testing and evaluating the design and operating effectiveness
of internal control based on the assessed risk, and performing such other
procedures as we considered necessary in the circumstances. We believe that
our audit provides a reasonable basis for our opinion.
A companys internal control over financial reporting is a
process designed by, or under the supervision of, the companys principal
executive and principal financial officers, or persons performing similar
functions, and effected by the companys board of directors, management, and
other personnel to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles. A
companys internal control over financial reporting includes those policies and
procedures that (1) pertain to the maintenance of records that, in reasonable
detail, accurately and fairly reflect the transactions and dispositions of the
assets of the company; (2) provide reasonable assurance that transactions are
recorded as necessary to permit preparation of financial statements in
accordance with generally accepted accounting principles, and that receipts and
expenditures of the company are being made only in accordance with
authorizations of management and directors of the company; and (3) provide
reasonable assurance regarding prevention or timely detection of unauthorized
acquisition, use, or disposition of the companys assets that could have a
material effect on the financial statements.
Because of the inherent limitations of internal control over
financial reporting, including the possibility of collusion or improper
management override of controls, material misstatements due to error or fraud
may not be prevented or detected on a timely basis. Also, projections of any
evaluation of the effectiveness of the internal control over financial
reporting to future periods are subject to the risk that the controls may
become inadequate because of changes in conditions, or that the degree of
compliance with the policies or procedures may deteriorate.
In our opinion, the Company maintained, in all material
respects, effective internal control over financial reporting as of December
31, 2009, based on the criteria established in
Internal Control-Integrated
Framework
issued by the Committee of Sponsoring Organizations of the
Treadway Commission.
We have also audited, in accordance with the standards of
the Public Company Accounting Oversight Board (United States), the consolidated
financial statements and financial statement schedule as of and for the year
ended December 31, 2009 of the Company and our report dated February 23, 2010
expressed an unqualified opinion on those financial statements and financial
statement schedule.
/s/
DELOITTE & TOUCHE LLP
Boise, Idaho
February 23, 2010
125
Changes in Internal Control Over Financial Reporting
There have been no changes in IDACORPs or Idaho Powers internal control over
financial reporting during the quarter ended December 31, 2009, requiring
disclosure that have materially affected, or are reasonably likely to
materially affect, IDACORPs or Idaho Powers internal control over financial
reporting.
On February 17, 2010, Idaho Power entered into the
Forty-fifth Supplemental Indenture, dated as of February 1, 2010, to the
Indenture of Mortgage and Deed of Trust, dated as of October 1, 1937, between
Idaho Power and Deutsche Bank Trust Company Americas (formerly known as Bankers
Trust Company) and R.G. Page, as Trustees (Stanley Burg, successor individual
trustee) for the purpose of increasing the maximum amount of first mortgage
bonds issuable by Idaho Power from $1.5 to $2.0 billion.
PART III
ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
The portion of IDACORPs definitive proxy
statement appearing under the captions Proposal No. 1: Election of Directors -
Nominees for Election - Terms Expire 2013, Continuing Directors Terms
Expire 2012, Continuing Directors - Terms Expire 2011, Section 16(a)
Beneficial Ownership Reporting Compliance, Corporate Governance - Audit
Committee, paragraph 1 and Corporate Governance - Code of Ethics, to be
filed pursuant to Regulation 14A for the Annual Meeting of Shareholders to be
held on May 20, 2010 is hereby incorporated by reference.
ITEM 11. EXECUTIVE COMPENSATION
The portion of IDACORPs definitive proxy
statement appearing under the caption Executive Compensation to be filed
pursuant to Regulation 14A for the Annual Meeting of Shareholders to be held on
May 20, 2010 is hereby incorporated by reference.
126
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
The portion of IDACORPs definitive proxy
statement appearing under the caption Security Ownership of Directors,
Executive Officers and Five Percent Shareholders to be filed pursuant to
Regulation 14A for the Annual Meeting of Shareholders to be held on May 20,
2010 is hereby incorporated by reference.
The following table includes information as of
December 31, 2009, with respect to equity compensation plans where equity
securities of IDACORP may be issued. These plans are the 1994 Restricted Stock
Plan (RSP), the IDACORP 2000 Long-Term Incentive and Compensation Plan (LTICP)
and the Non-Employee Director Stock Compensation Plan (DSP).
Equity Compensation Plans Not Approved by IDACORP Shareholders:
The DSP was adopted by the Board of Directors
effective May 17, 1999. The purpose of the DSP is to increase directors stock
ownership through stock-based compensation. The DSP provides for an annual
stock grant valued at $45,000. Effective January 1, 2009, directors may defer
their annual stock awards, which are then held as deferred stock units with
dividend equivalents reinvested in additional stock units.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
The portion of IDACORPs definitive proxy
statement appearing under the captions Related Person Transaction Disclosure and
Corporate Governance Director Independence paragraphs 1 and 2 to be filed
pursuant to Regulation 14A for the Annual Meeting of Shareholders to be held on
May 20, 2010 is hereby incorporated by reference.
ITEM 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES
IDACORP:
The portion of IDACORPs definitive proxy
statement appearing under the caption Independent Accountant Billings in the
proxy statement to be filed pursuant to Regulation 14A for the Annual Meeting
of Shareholders to be held on May 20, 2010 is hereby incorporated by reference.
127
Idaho Power:
The following table presents fees billed for
professional services rendered by Deloitte & Touche LLP, the member firms
of Deloitte Touche Tohmatsu, and their respective affiliates (collectively, Deloitte
Entities), for Idaho Power for the fiscal years ended December 31, 2009 and
2008.
|
2009 |
2008 |
|||
Audit fees |
$ |
1,000,059 |
$ |
1,037,923 |
|
Audit-related fees (1) |
|
62,790 |
|
59,800 |
|
Tax fees (2) |
|
304,118 |
|
138,606 |
|
All other fees (3) |
|
2,000 |
|
2,000 |
|
|
Total |
$ |
1,368,967 |
$ |
1,238,329 |
(1) Includes fees for audits of Idaho Powers benefit plans. |
|||||
(2) Includes fees for benefit plan tax returns and consultation related to uniform capitalization and repairs tax accounting. |
|||||
(3) Accounting research tool subscription. |
|||||
|
|||||
Policy on Audit Committee Pre-Approval
Idaho Power and the Audit Committee are committed
to ensuring the independence of the independent registered public accounting
firm, both in fact and in appearance. In this regard, on February 4, 2004, the
Audit Committee established a pre-approval policy in accordance with applicable
securities rules. All fees were pre-approved by the Audit Committee in 2008
and 2009.
In addition to the audits of Idaho Powers
consolidated financial statements, the independent public accounting firm may
be engaged to provide certain audit-related, tax and other services. The Audit
Committee must pre-approve all services performed by the independent public
accounting firm to assure that the provision of those services does not impair
the public accounting firms independence. The services that the Audit
Committee will consider include audit services such as attest services, changes
in the scope of the audit of the financial statements, and the issuance of
comfort letters and consents in connection with financings; audit-related
services such as internal control reviews and assistance with internal control
reporting requirements; attest services related to financial reporting that are
not required by statute or regulation, and accounting consultations and audits
related to proposed transactions and new or proposed accounting rules,
standards and interpretations; and tax compliance and planning services.
Unless a type of service to be provided by the independent public accounting
firm has received general pre-approval, it will require specific pre-approval
by the Audit Committee. In addition, any proposed services exceeding
pre-approved cost levels will require specific pre-approval by the Audit
Committee. Under the pre-approval policy, the Audit Committee has delegated to
the Chairman of the Audit Committee pre-approval authority for proposed tax,
audit and audit-related services. The Chairman must report any pre-approval
decisions to the Audit Committee at its next scheduled meeting.
Any request to engage the independent public
accounting firm to provide a service which has not received general
pre-approval must be submitted as a written proposal to Idaho Powers Chief
Financial Officer with a copy to the General Counsel. The request must include
a detailed description of the service to be provided, the proposed fee and the
business reasons for engaging the independent public accounting firm to provide
the service. Upon approval by the Chief Financial Officer, the General Counsel
and the independent public accounting firm that the proposed engagement
complies with the terms of the pre-approval policy and the applicable rules and
regulations, the request will be presented to the Audit Committee or the
Committee Chairman, as the case may be, for pre-approval.
In determining whether to pre-approve the
engagement of the independent public accounting firm, the Audit Committee or
the Committee Chairman, as the case may be, must consider, among other things,
the pre-approval policy, applicable rules and regulations and whether the
nature of the engagement and the related fees are consistent with the following
principles, as stated in the SECs adopting release for the rules on auditor
independence:
the independent public accounting firm cannot function in the role of management of Idaho Power;
the independent public accounting firm cannot audit its own work; and
the independent public accounting firm cannot serve in any
advocacy role on behalf of Idaho Power.
128
The appendices to the pre-approval policy describe the
specific audit, audit related, tax and other services that have the general
pre-approval of the Audit Committee. The term of any pre-approval is 12 months
from the date of pre-approval, unless the Audit Committee specifically provides
for a different period. The Audit Committee will periodically revise the list
of pre-approved services, based on subsequent determinations.
PART IV
ITEM 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(1) and (2) Please refer to Part II, Item 8 - Financial
Statements and Supplementary Data for a complete listing of all consolidated
financial statements and financial statement schedules.
(3) Exhibits.
*Previously Filed and Incorporated Herein by Reference
129
133
IDACORP, Inc.
SCHEDULE I - CONDENSED FINANCIAL INFORMATION OF REGISTRANT
CONDENSED STATEMENTS OF INCOME
|
Year Ended December 31, |
|||||||
|
2009 |
2008 |
2007 |
|||||
|
(thousands of dollars) |
|||||||
Income: |
|
|
|
|
|
|
||
Equity in income from continuing operations of subsidiaries |
$ |
125,567 |
$ |
100,303 |
$ |
85,742 |
||
Investment income (losses) |
|
404 |
|
(131) |
|
1,363 |
||
|
Total income |
|
125,971 |
|
100,172 |
|
87,105 |
|
|
|
|
|
|
|
|
||
Expenses: |
|
|
|
|
|
|
||
Operating expenses |
|
2,629 |
|
1,088 |
|
3,253 |
||
Interest expense |
|
919 |
|
3,250 |
|
4,143 |
||
Other expense |
|
66 |
|
126 |
|
70 |
||
|
Total expenses |
|
3,614 |
|
4,464 |
|
7,466 |
|
|
|
|
|
|
|
|
||
Income from Continuing Operations Before Income Taxes |
|
122,357 |
|
95,708 |
|
79,639 |
||
|
|
|
|
|
|
|
||
Income Tax Benefit |
|
(1,993) |
|
(2,706) |
|
(2,633) |
||
|
|
|
|
|
|
|
||
Income from Continuing Operations |
|
124,350 |
|
98,414 |
|
82,272 |
||
|
|
|
|
|
|
|
||
Income from Discontinued Operations, net of tax |
|
- |
|
- |
|
67 |
||
|
|
|
|
|
|
|
||
|
Net Income Attributable to IDACORP, Inc. |
$ |
124,350 |
$ |
98,414 |
$ |
82,339 |
|
|
||||||||
The accompanying note is an integral part of these statements. |
||||||||
|
||||||||
134
IDACORP, Inc.
CONDENSED BALANCE SHEETS
|
December 31, |
||||
|
2009 |
2008 |
|||
Assets |
(thousands of dollars) |
||||
Current Assets: |
|
|
|
|
|
Cash and cash equivalents |
$ |
26,770 |
$ |
3,541 |
|
Receivables |
|
3,004 |
|
3,211 |
|
Deferred income taxes |
|
23,876 |
|
33,693 |
|
Other |
|
687 |
|
755 |
|
|
Total current assets |
|
54,337 |
|
41,200 |
|
|
|
|
|
|
Investment in subsidiaries |
|
1,391,974 |
|
1,305,873 |
|
|
|
|
|
|
|
Other Assets |
|
|
|
|
|
Deferred income taxes |
|
42,571 |
|
44,500 |
|
Other |
|
1,099 |
|
1,094 |
|
Total other assets |
|
43,670 |
|
45,594 |
|
|
Total |
$ |
1,489,981 |
$ |
1,392,667 |
|
|
|
|
|
|
Liabilities and Shareholders Equity |
|
|
|
|
|
Current Liabilities: |
|
|
|
|
|
Notes payable |
$ |
53,750 |
$ |
38,400 |
|
Accounts payable |
|
5,869 |
|
5,701 |
|
Taxes accrued |
|
13,127 |
|
22,485 |
|
Other |
|
498 |
|
541 |
|
|
Total current liabilities |
|
73,244 |
|
67,127 |
|
|
|
|
|
|
Other Liabilities: |
|
|
|
|
|
Intercompany notes payable |
|
16,220 |
|
19,855 |
|
Other |
|
3,182 |
|
3,247 |
|
|
Total other liabilities |
|
19,402 |
|
23,102 |
|
|
|
|
|
|
IDACORP, Inc. Shareholders Equity |
|
1,397,335 |
|
1,302,438 |
|
|
Total |
$ |
1,489,981 |
$ |
1,392,667 |
|
|
|
|
|
|
The accompanying note is an integral part of these statements. |
|||||
|
135
IDACORP, Inc.
SCHEDULE I - CONDENSED FINANCIAL INFORMATION OF REGISTRANT
CONDENSED STATEMENTS OF CASH FLOWS
|
Year Ended December 31, |
|||||
|
2009 |
2008 |
2007 |
|||
|
(thousands of dollars) |
|||||
Operating Activities: |
|
|
|
|
|
|
Net cash provided by operating activities |
$ |
65,406 |
$ |
56,912 |
$ |
39,332 |
|
|
|
|
|
|
|
Investing Activities: |
|
|
|
|
|
|
Contributions to subsidiaries |
|
(20,000) |
|
(37,000) |
|
(51,000) |
Change in intercompany notes receivable |
|
- |
|
- |
|
880 |
Purchase of investments |
|
- |
|
(364) |
|
- |
Sale of investments |
|
48 |
|
287 |
|
- |
Sale of IDACOMM |
|
- |
|
- |
|
7,858 |
Reimbursement by subsidiary of refundable tax deposit |
|
- |
|
- |
|
43,927 |
Net cash (used in) provided by investing activities |
|
(19,952) |
|
(37,077) |
|
1,665 |
|
|
|
|
|
|
|
Financing Activities: |
|
|
|
|
|
|
Issuance of common stock |
|
24,328 |
|
50,863 |
|
37,181 |
Dividends on common stock |
|
(56,819) |
|
(54,240) |
|
(53,012) |
Increase (decrease) in short-term borrowings |
|
15,350 |
|
(11,460) |
|
(26,940) |
Change in intercompany notes payable |
|
(3,425) |
|
(2,092) |
|
(626) |
Other |
|
(1,659) |
|
(665) |
|
(1,024) |
Net cash used in financing activities |
|
(22,225) |
|
(17,594) |
|
(44,421) |
Net increase (decrease) in cash and cash equivalents |
|
23,229 |
|
2,241 |
|
(3,424) |
Cash and cash equivalents at beginning of year |
|
3,541 |
|
1,300 |
|
4,724 |
Cash and cash equivalents at end of year |
$ |
26,770 |
$ |
3,541 |
$ |
1,300 |
|
|
|
|
|
|
|
The accompanying note is an integral part of these statements. |
||||||
|
IDACORP, Inc.
SCHEDULE I - CONDENSED FINANCIAL INFORMATION OF REGISTRANT
NOTES TO CONDENSED FINANCIAL STATEMENTS
1. BASIS OF PRESENTATION
Pursuant to rules and regulations of the Securities and
Exchange Commission, the unconsolidated condensed financial statements of
IDACORP, Inc. do not reflect all of the information and notes normally included
with financial statements prepared in accordance with accounting principles
generally accepted in the United States of America. Therefore, these financial
statements should be read in conjunction with the consolidated financial
statements and related notes included in the 2009 Form 10-K, Part II, Item 8.
Accounting for subsidiaries
IDACORP has accounted for the earnings of its subsidiaries
under the equity method in the unconsolidated condensed financial statements.
Included in net cash provided by operating activities in the condensed
statements of cash flows are dividends of $59,911; $56,868; and $58,990 that
IDACORP subsidiaries paid to IDACORP in 2009, 2008 and 2007, respectively.
136
IDACORP, Inc.
SCHEDULE II - CONSOLIDATED VALUATION AND QUALIFYING ACCOUNTS
Years Ended December 31, 2009, 2008 and 2007
Column A |
Column B |
Column C |
Column D |
Column E |
|||||||
|
|
Additions |
|
|
|||||||
|
|
|
Charged |
|
|
||||||
|
Balance at |
Charged |
(Credited) |
|
Balance at |
||||||
|
Beginning |
to |
to Other |
Deductions |
End |
||||||
Classification |
of Period |
Income |
Accounts |
(1) |
of Period |
||||||
|
(thousands of dollars) |
||||||||||
2009 : |
|
|
|
|
|
|
|
|
|
|
|
Reserves deducted from applicable assets |
|
|
|
|
|
|
|
|
|
|
|
|
Reserve for uncollectible accounts |
$ |
1,724 |
$ |
5,314 |
$ |
122 |
$ |
5,170 |
$ |
1,990 |
|
Reserve for uncollectible notes |
|
1,879 |
|
566 |
|
600 |
|
- |
|
3,045 |
Other Reserves: |
|
|
|
|
|
|
|
|
|
|
|
|
Rate refunds |
|
13,345 |
|
- |
|
- |
|
13,345 |
|
- |
|
Injuries and damages |
|
1,965 |
|
4,867 |
|
- |
|
3,419 |
|
3,413 |
|
Miscellaneous operating reserves |
|
- |
|
2,926 |
|
- |
|
- |
|
2,926 |
2008 : |
|
|
|
|
|
|
|
|
|
|
|
Reserves deducted from applicable assets |
|
|
|
|
|
|
|
|
|
|
|
|
Reserve for uncollectible accounts |
$ |
7,505 |
$ |
3,661 |
$ |
(5,947) |
$ |
3,495 |
$ |
1,724 |
|
Reserve for uncollectible notes |
|
1,879 |
|
- |
|
- |
|
- |
|
1,879 |
Other Reserves: |
|
|
|
|
|
|
|
|
|
|
|
|
Rate refunds |
|
2,397 |
|
10,948 |
|
- |
|
- |
|
13,345 |
|
Injuries and damages |
|
661 |
|
1,437 |
|
- |
|
133 |
|
1,965 |
|
Miscellaneous operating reserves |
|
4 |
|
- |
|
- |
|
4 |
|
- |
2007 : |
|
|
|
|
|
|
|
|
|
|
|
Reserves deducted from applicable assets |
|
|
|
|
|
|
|
|
|
|
|
|
Reserve for uncollectible accounts |
$ |
7,168 |
$ |
2,093 |
$ |
- |
$ |
1,756 |
$ |
7,505 |
|
Reserve for uncollectible notes |
|
1,879 |
|
- |
|
- |
|
- |
|
1,879 |
|
Deferred tax assets |
|
1,565 |
|
- |
|
- |
|
1,565 |
|
- |
Other Reserves: |
|
|
|
|
|
|
|
|
|
|
|
|
Rate refunds |
|
1,227 |
|
2,893 |
|
- |
|
1,723 |
|
2,397 |
|
Injuries and damages reserve |
|
666 |
|
2,457 |
|
- |
|
2,462 |
|
661 |
|
Miscellaneous operating reserves |
|
6 |
|
3 |
|
- |
|
5 |
|
4 |
|
|
|
|
|
|
|
|
|
|
|
|
Notes: (1) Represents deductions from the reserves for purposes for which the reserves were created. In the case of uncollectible accounts and notes reserves, includes reversals of amounts previously written off. |
|||||||||||
|
137
IDAHO POWER COMPANY
SCHEDULE II - CONSOLIDATED VALUATION AND QUALIFYING ACCOUNTS
Years Ended December 31, 2009, 2008 and 2007
Column A |
Column B |
Column C |
Column D |
Column E |
||||||||
|
|
Additions |
|
|
||||||||
|
|
|
Charged |
|
|
|||||||
|
Balance at |
Charged |
(Credited) |
|
Balance at |
|||||||
|
Beginning |
to |
to Other |
Deductions |
End |
|||||||
Classification |
of Period |
Income |
Accounts |
(1) |
of Period |
|||||||
|
(thousands of dollars) |
|||||||||||
2009 : |
|
|
|
|
|
|
|
|
|
|
||
Reserves deducted from applicable assets: |
|
|
|
|
|
|
|
|
|
|
||
|
Reserve for uncollectible accounts |
$ |
1,724 |
$ |
5,314 |
$ |
122 |
$ |
5,170 |
$ |
1,990 |
|
Other Reserves: |
|
|
|
|
|
|
|
|
|
|
||
|
Rate refunds |
|
13,345 |
|
- |
|
- |
|
13,345 |
|
- |
|
|
Injuries and damages reserve |
|
1,965 |
|
4,867 |
|
- |
|
3,419 |
|
3,413 |
|
|
Miscellaneous operating reserves |
|
- |
|
2,926 |
|
- |
|
- |
|
2,926 |
|
2008 : |
|
|
|
|
|
|
|
|
|
|
||
Reserves deducted from applicable assets: |
|
|
|
|
|
|
|
|
|
|
||
|
Reserve for uncollectible accounts |
$ |
1,305 |
$ |
3,661 |
$ |
253 |
$ |
3,495 |
$ |
1,724 |
|
Other Reserves: |
|
|
|
|
|
|
|
|
|
|
||
|
Rate refunds |
|
2,397 |
|
10,948 |
|
- |
|
- |
|
13,345 |
|
|
Injuries and damages reserve |
|
661 |
|
1,437 |
|
- |
|
133 |
|
1,965 |
|
|
Miscellaneous operating reserves |
|
4 |
|
- |
|
- |
|
4 |
|
- |
|
2007 : |
|
|
|
|
|
|
|
|
|
|
||
Reserves deducted from applicable assets: |
|
|
|
|
|
|
|
|
|
|
||
|
Reserve for uncollectible accounts |
$ |
968 |
$ |
2,093 |
$ |
- |
$ |
1,756 |
$ |
1,305 |
|
Other Reserves: |
|
|
|
|
|
|
|
|
|
|
||
|
Rate refunds |
|
1,227 |
|
2,893 |
|
- |
|
1,723 |
|
2,397 |
|
|
Injuries and damages reserve |
|
665 |
|
1,210 |
|
- |
|
1,214 |
|
661 |
|
|
Miscellaneous operating reserves |
|
6 |
|
3 |
|
- |
|
5 |
|
4 |
|
|
||||||||||||
Notes: (1) Represents deductions from the reserves for purposes for which the reserves were created. In the case of uncollectible accounts includes reversals of amounts previously written off. |
||||||||||||
|
||||||||||||
138
Pursuant to the requirements
of Section 13 and 15(d) of the Securities Exchange Act of 1934, the registrant
has duly caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
February 23, 2010 |
|
|
IDACORP, INC. |
|
Date |
|
|
|
|
|
|
By: |
/s/J. LaMont Keen |
|
|
|
|
|
J. LaMont Keen |
|
|
|
|
President and Chief Executive Officer |
Pursuant to the requirements
of the Securities Exchange Act of 1934, this report has been signed below by
the following persons on behalf of the registrant and in the capacities and on
the dates indicated.
Signature |
|
Title |
Date |
|
|
|
|
/s/Jon H. Miller |
|
Chairman of the Board |
February 23, 2010 |
Jon H. Miller |
|
|
|
|
|
|
|
/s/J. LaMont Keen |
|
(Principal Executive Officer) |
February 23, 2010 |
J. LaMont Keen |
|
|
|
President and Chief Executive Officer and Director |
|
|
|
|
|
|
|
/s/Darrel T. Anderson |
|
(Principal Financial Officer) |
February 23, 2010 |
Darrel T. Anderson |
|
(Principal Accounting Officer) |
|
Executive Vice President-Administrative |
|
|
|
Services and Chief Financial Officer |
|
|
|
|
|
|
|
/s/C. Stephen Allred |
|
Director |
February 23, 2010 |
C. Stephen Allred |
|
|
|
|
|
|
|
/s/Richard J. Dahl |
|
Director |
February 23, 2010 |
Richard J. Dahl |
|
|
|
|
|
|
|
/s/Judith A. Johansen |
|
Director |
February 23, 2010 |
Judith A. Johansen |
|
|
|
|
|
|
|
/s/Christine King |
|
Director |
February 23, 2010 |
Christine King |
|
|
|
|
|
|
|
/s/Gary G. Michael |
|
Director |
February 23, 2010 |
Gary G. Michael |
|
|
|
|
|
|
|
/s/Jan B. Packwood |
|
Director |
February 23, 2010 |
Jan B. Packwood |
|
|
|
|
|
|
|
/s/Richard G. Reiten |
|
Director |
February 23, 2010 |
Richard G. Reiten |
|
|
|
|
|
|
|
/s/Joan H. Smith |
|
Director |
February 23, 2010 |
Joan H. Smith |
|
|
|
|
|
|
|
/s/Robert A. Tinstman |
|
Director |
February 23, 2010 |
Robert A. Tinstman |
|
|
|
|
|
|
|
/s/Thomas J. Wilford |
|
Director |
February 23, 2010 |
Thomas J. Wilford |
|
|
|
139
SIGNATURES
Pursuant to the requirements
of Section 13 and 15(d) of the Securities Exchange Act of 1934, the registrant
has duly caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
February 23, 2010 |
|
|
Idaho Power Company |
|
Date |
|
|
|
|
|
|
By: |
/s/J. LaMont Keen |
|
|
|
|
|
J. LaMont Keen |
|
|
|
|
President and Chief Executive Officer |
Pursuant to the requirements
of the Securities Exchange Act of 1934, this report has been signed below by
the following persons on behalf of the registrant and in the capacities and on
the dates indicated.
Signature |
|
Title |
Date |
|
|
|
|
/s/Jon H. Miller |
|
Chairman of the Board |
February 23, 2010 |
Jon H. Miller |
|
|
|
|
|
|
|
/s/J. LaMont Keen |
|
(Principal Executive Officer) |
February 23, 2010 |
J. LaMont Keen |
|
|
|
President and Chief Executive Officer and Director |
|
|
|
|
|
|
|
/s/Darrel T. Anderson |
|
(Principal Financial Officer) |
February 23, 2010 |
Darrel T. Anderson |
|
(Principal Accounting Officer) |
|
Executive Vice President-Administrative |
|
|
|
Services and Chief Financial Officer |
|
|
|
|
|
|
|
/s/C. Stephen Allred |
|
Director |
February 23, 2010 |
C. Stephen Allred |
|
|
|
|
|
|
|
/s/Richard J. Dahl |
|
Director |
February 23, 2010 |
Richard J. Dahl |
|
|
|
|
|
|
|
/s/Judith A. Johansen |
|
Director |
February 23, 2010 |
Judith A. Johansen |
|
|
|
|
|
|
|
/s/Christine King |
|
Director |
February 23, 2010 |
Christine King |
|
|
|
|
|
|
|
/s/Gary G. Michael |
|
Director |
February 23, 2010 |
Gary G. Michael |
|
|
|
|
|
|
|
/s/Jan B. Packwood |
|
Director |
February 23, 2010 |
Jan B. Packwood |
|
|
|
|
|
|
|
/s/Richard G. Reiten |
|
Director |
February 23, 2010 |
Richard G. Reiten |
|
|
|
|
|
|
|
/s/Joan H. Smith |
|
Director |
February 23, 2010 |
Joan H. Smith |
|
|
|
|
|
|
|
/s/Robert A. Tinstman |
|
Director |
February 23, 2010 |
Robert A. Tinstman |
|
|
|
|
|
|
|
/s/Thomas J. Wilford |
|
Director |
February 23, 2010 |
Thomas J. Wilford |
|
|
|
140
EXHIBIT INDEX
Exhibit Number
4.10 |
|
Forty-fifth Supplemental Indenture to Mortgage and Deed of Trust dated as of February 1, 2010. |
|
|
|
10.16 1 |
|
Idaho Power Company Security Plan for Senior Management Employees II, effective January 1, 2005, as amended and restated November 19, 2009. |
|
|
|
10.33 1 |
|
IDACORP, Inc. and Idaho Power Compensation for Non-Employee Directors of the Board of Directors, as amended January 21, 2010. |
|
|
|
10.40 |
|
$100 Million Five-Year Amended and Restated Credit Agreement, dated as of April 25, 2007, among IDACORP, Inc., various lenders, Wachovia Bank, National Association, as administrative agent, swingline lender and LC issuer, JPMorgan Chase Bank, N.A., as syndication agent, and KeyBank National Association, Wells Fargo Bank, N.A. and Bank of America, N.A., as documentation agents, and Wachovia Capital Markets, LLC and J. P. Morgan Securities Inc., as joint lead arrangers and joint book runners. |
|
|
|
10.42 |
|
$300 Million Five-Year Amended and Restated Credit Agreement, dated as of April 25, 2007, among Idaho Power Company, various lenders, Wachovia Bank, National Association, as administrative agent, swingline lender and LC issuer, JPMorgan Chase Bank, N.A., as syndication agent, and KeyBank National Association, US Bank National Association and Bank of America, N.A., as documentation agents, and Wachovia Capital Markets, LLC and J. P. Morgan Securities Inc., as joint lead arrangers and joint book runners. |
|
|
|
10.63 1 |
|
Idaho Power Company Employee Savings Plan, as amended and restated as of January 1, 2010 (revised). |
|
|
|
10.66 1 |
|
IDACORP, Inc. and/or Idaho Power Executive Officers with Amended and Restated Change in Control Agreements Chart, as of December 31, 2009. |
|
|
|
12.1 |
|
Statement Re: Computation of Ratio of Earnings to Fixed Charges. (IDACORP, Inc.) |
|
|
|
12.2 |
|
Statement Re: Computation of Supplemental Ratio of Earnings to Fixed Charges. (IDACORP, Inc.) |
|
|
|
12.3 |
|
Statement Re: Computation of Ratio of Earnings to Fixed Charges. (Idaho Power) |
|
|
|
12.4 |
|
Statement Re: Computation of Supplemental Ratio of Earnings to Fixed Charges. (Idaho Power) |
|
|
|
23 |
|
Consent of Independent Registered Public Accounting Firm. |
|
|
|
31.1 |
|
IDACORP, Inc. Rule 13a-14(a) CEO certification. |
|
|
|
31.2 |
|
IDACORP, Inc. Rule 13a-14(a) CFO certification. |
|
|
|
31.3 |
|
Idaho Power Rule 13a-14(a) CEO certification. |
|
|
|
31.4 |
|
Idaho Power Rule 13a-14(a) CFO certification. |
|
|
|
32.1 |
|
IDACORP, Inc. Section 1350 CEO certification. |
|
|
|
32.2 |
|
IDACORP, Inc. Section 1350 CFO certification. |
|
|
|
32.3 |
|
Idaho Power Section 1350 CEO certification. |
|
|
|
32.4 |
|
Idaho Power Section 1350 CFO certification. |
|
|
|
99 |
|
Earnings press release for the fourth quarter 2009. |
|
|
|
1 Management contract or compensatory plan or arrangement |
||
|
142
Exhibit 4.10
Executed in
75 Counterparts
of which this is
Counterpart No. ___
IDAHO POWER COMPANY
TO
DEUTSCHE BANK TRUST COMPANY AMERICAS
AND
STANLEY BURG,
As Trustees under its Mortgage and Deed of Trust dated as of October 1, 1937.
_______________
Forty-fifth Supplemental Indenture
Dated as of February 1, 2010
TABLE OF CONTENTS 1
|
Page |
Parties and Recitals |
1 |
Granting Clause and Property Description |
4 |
ARTICLE I |
|
Section 1. Maximum amount of obligations to be secured by the Indenture |
7 |
ARTICLE II Covenants |
|
Section 2. Application of Original Indenture |
7 |
Section 3. Lawful ownership |
7 |
Section 4. Annual certificate as to defaults |
7 |
ARTICLE III The Trustees |
|
Acceptance of trust |
8 |
Recitals deemed made by the Company |
8 |
ARTICLE IV Miscellaneous Provisions |
|
Meanings of terms |
8 |
Ratification and Confirmation |
8 |
Counterparts |
8 |
|
|
Testimonium |
9 |
Signatures and seals |
9 |
Acknowledgments |
11 |
Affidavits |
14 |
1 This table of contents shall not have any bearing upon the interpretation of this Supplemental Indenture.
i
SUPPLEMENTAL INDENTURE, dated as of the 1st day of February, 2010, 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 DEUTSCHE BANK TRUST COMPANY AMERICAS, formerly known as Bankers Trust Company, a corporation of the State of New York, whose post office address is 60 Wall Street, New York, New York 10005 (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.
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 the States of Idaho, Montana, Oregon, Nevada and Wyoming; 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 |
Thirty-sixth Supplemental Indenture |
October 1, 2001 |
Thirty-seventh Supplemental Indenture |
April 1, 2003 |
Thirty-eighth Supplemental Indenture |
May 15, 2003 |
Thirty-ninth Supplemental Indenture |
October 1, 2003 |
Fortieth Supplemental Indenture |
May 1, 2005 |
Forty-first Supplemental Indenture |
October 1, 2006 |
Forty-second Supplemental Indenture |
May 1, 2007 |
Forty-third Supplemental Indenture |
September 1, 2007 |
Forty-fourth Supplemental Indenture |
April 1, 2008 |
2 |
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 the States of Idaho, Montana, Oregon, Nevada and Wyoming; 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:
3 |
which bonds are hereinafter sometimes called bonds of the First through Thirty-ninth Series; and
WHEREAS, Section 22 and Section 121 of the Indenture provide that the Company may amend the Indenture to increase the maximum amount of the obligations to be secured by the Indenture by executing and delivering to the Trustees a supplemental indenture specifying the maximum amount of such obligations thereafter to be secured by the Indenture as so amended, and the Company has determined so to increase the maximum amount of obligations to be secured by the Indenture to Two Billion Dollars ($2,000,000,000); 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, Thirty-sixth, Thirty-seventh, Thirty-ninth, Fortieth, Forty-first and Forty-fourth Supplemental Indentures; 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 Forty-fifth Supplemental Indenture to amend and supplement the Indenture for the purposes herein provided; and
WHEREAS, all things necessary to make the Original Indenture, as heretofore supplemented and as supplemented hereby, a valid and legally binding instrument for the security of the Bonds, have been performed:
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
4 |
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 increase the maximum amount of obligations to be secured by the Indenture, the Company has duly executed and delivered to the Trustees this Forty-fifth 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 Deutsche Bank Trust Company Americas, 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
None
TRANSMISSION LINES & SYSTEMS
Line 446: Pinegree to Haven |
|
Bingham County, ID |
0.8 Miles 138 kV |
|
|
Line 446: Pinegree to Haven, converted from 46kV to 138kV |
|
Bingham County, ID |
10.9 Miles 138 kV |
|
|
|
|
Line 525: Don Hoku |
|
Bannock County, ID |
2.97 Miles 138kV |
|
|
Line 525: Hoku Alameda |
|
Power & Bannock County, ID |
3.4 Miles 138kV |
|
|
Line 723: Danskin-Hubbard |
|
Elmore & County, ID |
39.46 Miles 230kV |
5 |
DISTRIBUTION LINES & SYSTEMS
None
SUBSTATIONS
Hubbard Substation |
Ada Co., ID |
FRANCHISES
None
ALL OTHER LANDS, IMPROVEMENTS, BUILDINGS AND OTHER SUBSTATIONS
None
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.
6 |
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, Thirty-fifth, Thirty-sixth, Thirty-seventh, Thirty-eighth, Thirty-ninth, Fortieth, Forty-first, Forty-second, Forty-third and Forty-fourth Supplemental Indentures and this Forty-fifth Supplemental Indenture.
And it is hereby covenanted, declared and agreed 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:
7 |
SECTION 1. Pursuant to Section 22 and Section 121 of the Indenture, the maximum amount of obligations to be secured by the Indenture is hereby increased to Two Billion Dollars ($2,000,000,000), provided, however, that the maximum amount of obligations to be secured by the Indenture may at any time and from time to time be further increased or decreased (but not below the amount of Bonds at the time outstanding thereunder) as provided in the Indenture.
8 |
to his or her knowledge of the Company's compliance with all conditions and covenants under the Indenture. For purposes of this Section 4, such compliance shall be determined without regard to any period of grace or requirement of notice provided under the Indenture.
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 Forty-fifth Supplemental Indenture, and in this Forty-fifth 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 Forty-fifth 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.
All terms contained in this Forty-fifth 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 as 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 Forty-fifth 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.
9 |
IN WITNESS WHEREOF, Idaho Power Company, party hereto of the first part, has 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 for and on its behalf, and Deutsche Bank Trust Company Americas, 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 COMPAN
Y
By
/s/Darrel
T. Anderson
Darrel T. Anderson
Executive Vice President - Administrative Services and Chief Financial
Officer
Attest:
__
/s/Patrick A. Harrington
_________
Patrick A. Harrington
Secretary
Executed, sealed and delivered by
IDAHO POWER COMPANY
in the presence of:
_
/s/Sandra D. Holmes
______________
_
/s/Christa Bearry
________________
10 |
DEUTSCHE BANK
TRUST COMPANY AMERICAS
By __
/s/Annie
Jaghatspanyan
__________
Name: Annie Jaghatspanyan
Title: Vice President
By __
/s/Wanda
Camacho
__________
Name: Wanda Camacho
Title: Vice President
Attest:
_
/s/Jennifer Davis
_______________
Executed,
sealed and delivered by
DEUTSCHE BANK TRUST
COMPANY AMERICAS,
in the presence of:
_
/s/Alexander Buslayev
_________
_
/s/Heather Long
______________
__
/s/Stanley Burg
____________________
Stanley Burg
Attest:
_
/s/Jennifer Davis
_______________
Executed,
sealed and delivered by
STANLEY BURG,
in the presence of:
_
/s/Alexander Buslayev
_________
_ /s/Heather Long ______________
11
STATE OF IDAHO )
) ss.:
COUNTY OF ADA )
On the 17 th day of February, in the year 2010, before me personally came DARREL T. ANDERSON, to me known, who being by me duly sworn did depose and say that he is the Executive Vice President Administrative Services and Chief Financial Officer 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 Executive Vice President Administrative Services and Chief Financial Officer 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, 2010
12 |
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 17 th day of February, in the year 2010, before me personally came Annie Jaghatspanyan and Wanda Camacho, to me known, who being by me duly sworn did depose and say that they are each a Vice President of Deutsche Bank Trust Company Americas, one of the corporations described in and which executed the above instrument; that each 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 each signed her name thereto by like order; the said Annie Jaghatspanyan and Wanda Camacho, having personally appeared and known to me to each 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/Alyssa R. Sullivan
_______________
Alyssa R. Sullivan
Notary Public, State of New York
Registration #01SU6180190
Qualified in New York County
Commission expires 01/07/2012
13 |
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 17 th day of February, in the year 2010, before me, Alyssa R. Sullivan, 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/Alyssa R. Sullivan
_______________
Alyssa R. Sullivan
Notary Public, State of New York
Registration #01SU6180190
Qualified in New York County
Commission expires 01/07/2012
14 |
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 Executive Vice President Administrative Services and Chief Financial Officer 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 or provided for therein.
__
/s/Darrel T. Anderson
______________
Darrel T. Anderson
Executive Vice President
Administrative Services and Chief Financial Officer
Subscribed and sworn to before me
this 17
th
day of February, 2010.
_
/s/Mary Gray
______________
Mary Gray
Notary Public, State of Idaho
Commission expires July 17, 2010
15 |
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Annie Jaghatspanyan and Wanda Camacho, being first duly sworn, upon oath, depose and say: that each is an officer, to wit, a Vice President of Deutsche Bank Trust Company Americas, a corporation, one of the mortgagees and trustees named in the foregoing indenture or mortgage, and makes this affidavit on behalf of said Deutsche Bank Trust Company Americas; 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.
By __
/s/Annie
Jaghatspanyan
__________
Name: Annie Jaghatspanyan
Title: Vice President
By __
/s/Wanda
Camacho
__________
Name: Wanda Camacho
Title: Vice President
Subscribed and sworn to before me
this 17
th
day of February, 2010.
_
/s/Alyssa R. Sullivan
_______________
Alyssa R. Sullivan
Notary Public, State of New
York
Registration #01SU6180190
Qualified in New York County
Commission expires 01/07/2012
16 |
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 17
th
day of February, 2010.
_
/s/Alyssa R. Sullivan
_______________
Alyssa R. Sullivan
Notary Public, State of New York
Registration #01SU6180190
Qualified in New York County
Commission expires 01/07/2012
17
Exhibit 10.16
IDAHO POWER COMPANY
SECURITY PLAN FOR
SENIOR MANAGEMENT EMPLOYEES II
Effective January 1, 2005
(Amended and Restated November 19,
2009)
table of contents
Page
ARTICLE I |
|
|
PURPOSE; EFFECTIVE DATE |
1 |
|
|
DEFINITIONS |
1 |
|
|
2.1 |
Actuarial Equivalent |
1 |
|
|
2.2 |
Administrative Committee |
1 |
|
|
2.3 |
Affiliate |
1 |
|
|
2.4 |
Beneficiary |
1 |
|
|
2.5 |
Board |
2 |
|
|
2.6 |
Change in Control |
2 |
|
|
2.7 |
Change in Control Period |
3 |
|
|
2.8 |
Code |
3 |
|
|
2.9 |
Company |
3 |
|
|
2.10 |
Compensation Committee |
3 |
|
|
2.11 |
Compensation |
3 |
|
|
2.12 |
Disability |
3 |
|
|
2.13 |
Early Retirement Date |
3 |
|
|
2.14 |
Employer |
4 |
|
|
2.15 |
Final Average Monthly Compensation |
4 |
|
|
2.16 |
Normal Form of Benefit |
4 |
|
|
2.17 |
Normal Retirement Date |
4 |
|
|
2.18 |
Participant |
4 |
|
|
2.19 |
Plan Year |
4 |
|
|
2.20 |
Retirement |
4 |
|
|
2.21 |
Retirement Plan |
4 |
|
|
2.22 |
Security Plan Retirement Benefit |
4 |
|
|
2.23 |
Separation from Service |
4 |
|
|
2.24 |
Target Retirement Percentage |
4 |
|
|
2.25 |
Termination Date |
4 |
|
|
2.26 |
Years of Participation |
4 |
|
ARTICLE III |
|
|
PARTICIPATION AND VESTING |
5 |
|
3.1 |
Eligibility |
5 |
|
|
3.2 |
Vesting |
5 |
|
|
|
|
|
|
|
|
|
|
|
|
3.3 |
Change in Employment Status |
5 |
|
|
3.4 |
Non-Participating Affiliate |
5 |
|
ARTICLE IV |
|
|
SURVIVOR BENEFITS |
5 |
|
4.1 |
Pre-termination Survivor Benefits |
5 |
|
|
4.2 |
Post-termination Survivor Benefit |
6 |
|
ARTICLE V |
|
|
SECURITY PLAN RETIREMENT BENEFITS |
7 |
|
5.1 |
Normal Retirement Benefit |
7 |
|
|
5.2 |
Early Retirement Benefit |
7 |
|
|
5.3 |
Early Retirement Factor |
8 |
|
|
5.4 |
Early Termination Benefits |
8 |
|
|
5.5 |
Separation from Service After Change in Control |
9 |
|
|
5.6 |
Form of Payment |
9 |
|
|
5.7 |
Code Section 162(m) Delay |
10 |
|
|
5.8 |
Payment to Specified Employees |
10 |
|
ARTICLE VI |
|
|
OTHER RETIREMENT PROVISIONS |
10 |
|
6.1 |
Disability |
10 |
|
|
6.2 |
Withholding Payroll Taxes |
10 |
|
|
6.3 |
Payment to Guardian |
10 |
|
ARTICLE VII |
|
|
BENEFICIARY DESIGNATION |
11 |
|
7.1 |
Beneficiary Designation |
11 |
|
|
7.2 |
Effect of Payment |
11 |
|
ARTICLE VIII |
|
|
ADMINISTRATION |
11 |
|
8.1 |
Administrative Committee Duties |
11 |
|
|
8.2 |
Indemnity of Administrative Committee |
12 |
|
ARTICLE IX |
|
|
CLAIMS PROCEDURE |
12 |
|
9.1 |
Claim |
12 |
|
|
9.2 |
Denial of Claim |
12 |
|
|
9.3 |
Review of Claim |
12 |
|
|
9.4 |
Final Decision |
13 |
|
ARTICLE X |
|
|
TERMINATION, SUSPENSION OR AMENDMENT |
13 |
|
10.1 |
Termination, Suspension or Amendment of Plan |
13 |
|
|
|
|
|
|
|
10.2 |
Change in Control |
13 |
|
ARTICLE XI |
|
|
MISCELLANEOUS |
13 |
|
11.1 |
Unfunded Plan |
13 |
|
|
11.2 |
Unsecured General Creditor |
13 |
|
|
11.3 |
Trust Fund |
14 |
|
|
11.4 |
Nonassignability |
14 |
|
|
11.5 |
Not a Contract of Employment |
14 |
|
|
11.6 |
Governing Law |
14 |
|
|
11.7 |
Validity |
14 |
|
|
11.8 |
Notice |
14 |
|
|
11.9 |
Successors |
14 |
iii
IDAHO POWER COMPANY
SECURITY PLAN FOR SENIOR MANAGEMENT EMPLOYEES II
EFFECTIVE JANUARY 1, 2005
(Amended and Restated November 20, 2008)
(Amended and Restated November 19, 2009)
ARTICLE I
PURPOSE; EFFECTIVE DATE
The purpose of this Security Plan for Senior Management Employees II (the Plan) is to provide supplemental retirement benefits for certain key employees of Idaho Power Company, its subsidiaries and affiliates. It is intended that the Plan will aid in attracting individuals of exceptional ability and retain those critical to the operation of the Company, by providing them with these benefits. The effective date of this Plan is January 1, 2005. It is intended to be compliant with Section 409A of the Internal Revenue Code, which was added by the American Jobs Creation Act of 2004, effective January 1, 2005. It continues the program of supplemental retirement benefits provided under the Security Plan for Senior Management Employees I, which provides benefits that are grandfathered under Section 409A of the Internal Revenue Code.
As used in this Plan, the following terms shall be defined as stated in this Article, as interpreted by the Administrative Committee pursuant to its authority granted by Section 8.1 of this Plan.
1
2.4 Beneficiary . Beneficiary shall mean the person, persons or entity designated by the Participant pursuant to Article VII to receive any benefits payable under the Plan. Each such designation shall be made in a written instrument filed with the Administrative Committee and shall become effective only when received, accepted and acknowledged in writing by the Administrative Committee or its designee.
2.5 Board . Board shall mean the Board of Directors of the Company.
2.6 Change in Control. Change in Control shall mean any of the following events:
2.6.1 any person (as such term is defined in Section 3(a)(9) of the Securities Exchange Act of 1934 (the Exchange Act) and as used in Section 13(d) of the Exchange Act, excluding (a) IDACORP, Inc. or any Subsidiary, (b) a corporation or other entity owned, directly or indirectly, by the stockholders of IDACORP, Inc. immediately prior to the transaction in substantially the same proportions as their ownership of stock of IDACORP, Inc., (c) an employee benefit plan (or related trust) sponsored or maintained by IDACORP, Inc. or any Subsidiary or (d) an underwriter temporarily holding securities pursuant to an offering of such securities (Exchange Act Person)) is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of 20% or more of the combined voting power of the then outstanding voting securities eligible to vote generally in the election of directors of IDACORP, Inc.; provided, however, that no Change in Control will be deemed to have occurred as a result of a change in ownership percentage resulting solely from an acquisition of securities by IDACORP, Inc.;
2.6.2 consummation of a merger, consolidation, reorganization or share exchange, or sale of all or substantially all of the assets, of IDACORP, Inc. or the Company (a Qualifying Transaction), unless, immediately following such Qualifying Transaction, all of the following have occurred: (a) all or substantially all of the beneficial owners of IDACORP, Inc. immediately prior to such Qualifying Transaction beneficially own in substantially the same proportions, directly or indirectly, more than 50% of the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors of the corporation or other entity resulting from such Qualifying Transaction (including, without limitation, a corporation or other entity which, as a result of such transaction, owns IDACORP, Inc. or all or substantially all of IDACORP, Inc.s assets either directly or through one or more subsidiaries) (as the case may be, the Successor Entity), (b) no Exchange Act Person is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of 20% or more of the combined voting power of the then outstanding voting securities eligible to vote generally in the election of directors of the Successor Entity and (c) at least a majority of the members of the board of directors of the Successor Entity are Incumbent Directors;
2.6.3 a complete liquidation or dissolution of IDACORP, Inc. or the Company; or
2
2.6.4 within a 24-month period, individuals who were directors of the Board of Directors of IDACORP, Inc. (the IDACORP Board of Directors) immediately before such period (Incumbent Directors) cease to constitute at least a majority of the directors of the IDACORP Board of Directors; provided, however, that any director who was not a director of the IDACORP Board of Directors at the beginning of such period shall be deemed to be an Incumbent Director if the election or nomination for election of such director was approved by the vote of at least two-thirds of the directors of the IDACORP Board of Directors then still in office (a) who were in office at the beginning of the 24-month period or (b) whose election or nomination for election was so approved, in each case, unless such individual was elected or nominated as a result of an actual or threatened election contest or as a result of an actual or threatened solicitation of proxies or consents by or on behalf of any Exchange Act Person other than the IDACORP Board of Directors.
For avoidance of doubt, transactions for the purpose of dividing the Companys assets into separate distribution, transmission or generation entities or such other entities as IDACORP, Inc. or the Company may determine shall not constitute a Change in Control unless so determined by the IDACORP Board of Directors. For purposes of this definition, the term Subsidiary shall mean any corporation of which more than 50% of the outstanding stock having ordinary voting power to elect a majority of the board of directors of such corporation is now or hereafter owned, directly or indirectly, by IDACORP, Inc.
2.8 Code . Code shall mean the Internal Revenue Code of 1986, as amended.
2.9 Company . Company shall mean the Idaho Power Company, an Idaho corporation, its successors and assigns.
2.11 Compensation . Compensation shall mean the base salary and annual bonus (not to exceed one (1) times base salary for the year in which the bonus was paid) paid to a Participant and considered to be wages for purposes of federal income tax withholding. Compensation shall be calculated before reduction for any amounts deferred by the Participant pursuant to any plan sponsored by the Employer which permits deferral of current compensation. Compensation does not include long-term incentive compensation in any form, expense reimbursements, or any form of non-cash compensation or benefits. A Participant who elects an accelerated distribution under the Security Plan for Senior Management Employees I, shall not be credited with any additional Compensation under this Plan beginning on the effective date of the accelerated distribution.
2.13.1 attainment of age fifty-five (55); or
3
2.13.2 completion of thirty (30) years of Credited Service under the Retirement Plan but prior to Participants Normal Retirement Date.
2.14 Employer . Employer shall mean the Company. Final Average Monthly Compensation . Final A verage Monthly Compensation shall mea n the Co mpensation received by the Partici p an t during any sixty (60) consecutive months (during the last ten (10) years of employment) for which the Participants compensation was the highest divided by sixty (60). In determining Final Average Monthly Compensation, annual bonuses shall be allocated equally to the months in which they were paid. Final Average Monthly Compensation shall not include any Compensation payable to a Participant pursuant to a written severance agreement with the Employer.
2.18 Plan Year . Plan Year shall mean the calendar year.
2.23 Target Retirement Percentage .
2.23.1 For Participants of this Plan as of December 31, 2009, Target Retirement Percentage shall equal six percent (6%) for each of the first ten (10) Years of Participation plus an additional one percent (1%) for each Year of Participation, exceeding ten (10). The maximum Target Retirement Percentage for these Participants shall be seventy-five percent (75%).
4
2.24.2 For Participants who become eligible to participate in the Plan on or after January 1, 2010, Target Retirement Percentage shall equal five percent (5%) for each of the first ten (10) Years of Participation plus an additional one percent (1%) for each Year of Participation exceeding ten (10). The maximum Target of Retirement Percentage for these Participants shall be sixty-five percent (65%).
2.24.3 Effective January 1, 2018, Participants who are officers of the Company and Participants who are in a job classification with a pay grade of S4 will accrue benefits according to the formula set forth in paragraph 2.24.2. This change to the applicable benefit formula shall not, in any way, change or alter the status of a Participants accrued benefits as of December 31, 2017.
2.24.4 Effective January 1, 2018, all Participants, other than officers of the Company and Participants who are in a job classification with a pay grade of S4, will have no increase to their Target Retirement Percentage. Although participation in the Plan by these Participants may continue beyond January 1, 2018, the Target Retirement Percentage accrued through this Plan will be frozen as of December 31, 2017.
2.25 Years of Participation . Years of Participation shall be twelve (12) month periods, and portions thereof, which shall begin on the earlier of the date an individual, who has been designated by the Employer, is approved by Administrative Committee pursuant to Section 3.1, or the date designated by the Administrative Committee, and shall end on the earlier of a Participants death, Termination Date, or the date the Participant experiences a change in status, as provided in Sections 3.3 and 3.4. Partial Years of Participation, if any, shall be used in determining benefits under this Plan. Years of Participation under the Security Plan for Senior Management Employees I, if any, shall be included in determining the total Years of Participation. A Participant who elects an accelerated distribution under the Security Plan for Senior Management Employees I, shall cease to earn Years of Participation under this Plan on the effective date of the accelerated distribution.
ARTICLE III
PARTICIPATION AND VESTING
3.1 Eligibility . Effective January 1, 2010, eligibility to participate in the Plan is limited to officers of the Employer and employees who are in job classifications with a pay grade of S4. Key employees who as of January 1, 2005 are participants in the Security Plan for Senior Management Employees I, shall be Participants in this Plan on January 1, 2005, the effective date of this Plan. A key employee who, as of December 31, 2009, is a Participant in this Plan shall maintain eligibility to participate in this Plan, so long as the Participant maintains a senior manager or officer pay grade during the Participants continuous employment with Employer.
5
Years of Participations |
Vested Percentage |
Less than 5 years |
0% |
5 years or more |
100% |
All Participants who, as of December 31, 2009, participate in this Plan shall be one hundred percent (100%) vested with all benefits earned through continuous employment with Employer.
SURVIVOR BENEFITS
4.1.1 Amount. The pre-termination survivor benefit shall be an Actuarial Equivalent amount (determined pursuant to Section 4.1.2) equal to sixty-six and two-thirds percent (66 2/3%) of the retirement benefit calculated under Section 5.1 assuming retirement occurred at the later of age sixty-two (62) or date of death. Final Average Monthly Compensation and the Retirement Plan benefit shall be determined as of the date of the Participants death. For purposes of this Section 4.1.1, the Retirement Plan benefit shall be the accrued benefit determined as of the date of death as defined in the Retirement Plan.
6
4.1.2 Payment. The pre-termination survivor benefit shall be paid in a lump sum to the spouse of the Participant or, if the Participant is unmarried on the date of death, to the Participants Beneficiary (other than the Participants spouse). Payment shall be made as soon as practicable (but in all events within 90 days) after the Participants death. If the payment is to the Participants spouse, the lump sum payment shall be the Actuarial Equivalent of the monthly payments that would have been made assuming the spouse received the pre-termination survivor benefit for the life of the spouse beginning on the first day of the month coincident with or following the date of death; provided, however, that if the spouses date of birth is more than ten (10) years after the Participants date of birth, the assumed monthly benefit shall be reduced using the Actuarial Equivalent factors to reflect the number of years over ten (10) the spouse is younger than the Participant. If the payment is to the Participants Beneficiary (other than the Participants spouse), the lump sum payment shall be the Actuarial Equivalent of the monthly payments that would have been made assuming an individual the same age as the Participant had received the pre-termination survivor benefit for the life of the individual beginning on the first day of the month coincident with or following the date of death.
4.2 Post-termination Survivor Benefit.
4.2.1 Death Prior to Commencement of Benefits. If a Participant dies prior to commencement of benefits but on or after his or her Termination Date:
(a) Amount. The amount of the post-termination survivor benefit shall be an Actuarial Equivalent amount (determined pursuant to Section 4.2.1(b)) equal to sixty-six and two thirds percent (66 2/3%) of the retirement benefit payable to the Participant.
(b) Payment. The post-termination survivor benefit shall be paid in a lump sum to the spouse of the Participant or, if the Participant is unmarried on the date of death, to the Participants Beneficiary (other than the Participants spouse). Payment shall be made as soon as practicable (but in all events within 90 days) after the Participants death. If the payment is to the Participants spouse, the lump sum payment shall be the Actuarial Equivalent of the monthly payments that would have been made assuming the spouse received the post-termination survivor benefit for the life of the spouse beginning on the first day of the month coincident with or following the date of death; provided, however, that if the spouses date of birth is more than ten (10) years after the Participants date of birth, the assumed monthly benefit shall be reduced using the Actuarial Equivalent factors to reflect the number of years over ten (10) the spouse is younger than the Participant. If the payment is to the Participants Beneficiary (other than the Participants spouse), the lump sum payment shall be the Actuarial Equivalent of the monthly payments that would have been made assuming an individual the same age as the Participant had received the post-termination survivor benefit for the life of the individual beginning on the first day of the month coincident with or following the date of death.
4.2.2 Death After Commencement of Benefits. If a Participant dies after commencement of benefits, a survivor benefit will be paid only if, and to the extent provided for, under the form of benefit elected by the Participant pursuant to Section 5.6.
7
ARTICLE V
SECURITY PLAN RETIREMENT BENEFITS
5.1 Normal Retirement Benefit . If a Participants Separation from Service occurs at a Normal Retirement Date, the Employer shall pay to the Participant a monthly Security Plan Retirement Benefit beginning the first day of the month following the Normal Retirement Date. Payment of this benefit cannot be deferred. The monthly Security Plan Retirement Benefit shall equal the Target Retirement Percentage multiplied by the Participants Final Average Monthly Compensation, less
(a) the Participants retirement benefit, if any, under the Retirement Plan, assuming such retirement benefit were paid as a single life annuity commencing when payments commence under this Plan (regardless of the form of benefit actually selected by the Participant and regardless of when benefits actually commence under the Retirement Plan) and
(b) the Participants retirement benefit (before any adjustment due to an accelerated distribution pursuant to Section 7.4 thereof), if any, under the Security Plan for Senior Management Employees I, assuming such retirement benefit were paid as a single life annuity commencing when payments commence under this Plan (regardless of the form of benefit actually selected by the Participant and regardless of when benefits actually commence under the Security Plan for Senior Management Employees I).
(a) the Participants retirement benefit, if any, under the Retirement Plan, assuming such retirement benefit were paid as a single life annuity commencing when payments commence under this Plan (regardless of the form of benefit actually selected by the Participant and regardless of when benefits actually commence under the Retirement Plan) and
(b) the Participants retirement benefit (before any adjustment due to an accelerated distribution pursuant to Section 7.4 thereof), if any, under the Security Plan for Senior Management Employees I, assuming such retirement benefit were paid as a single life annuity commencing when payments commence under this Plan (regardless of the form of benefit actually selected by the Participant and regardless of when benefits actually commence under the Security Plan for Senior Management Employees I).
8
Exact Age When |
Early Retirement |
Payments Begin |
Factor |
62 |
100% |
61 |
96% |
60 |
92% |
59 |
87% |
58 |
82% |
57 |
77% |
56 |
72% |
55 |
67% |
54 |
62% |
53 |
57% |
52 |
52% |
51 |
47% |
50 |
42% |
49 |
38% |
48 |
34% |
Early Retirement Factors will be prorated to reflect retirement based on completed months rather than exact age.
5.4.1 The Target Retirement Percentage shall be calculated based upon the Participants Years of Participation and then multiplied by a fraction equal to the Participants Years of Participation divided by the Years of Participation the Participant would have had at the Normal Retirement Date if the Participant had continued to be employed by the Employer to age sixty-two (62). The adjusted Target Retirement Percentage shall be multiplied by the factor described in Section 5.3 for each month between the Participants benefits commencement date (age 55) and age sixty-two (62).
5.4.2 The Early Termination Benefit shall be reduced by
(a) the Participants retirement benefit, if any, under the Retirement Plan, assuming such retirement benefit were paid as a single life annuity commencing when payments commence under this Plan (regardless of the form of benefit actually selected by the Participant and regardless of when benefits actually commence under the Retirement Plan) and
(b) the Participants retirement benefit (before any adjustment due to an accelerated distribution pursuant to Section 7.4 thereof), if any, under the Security Plan for Senior Management Employees I, assuming such retirement benefit were paid as a single life annuity commencing when payments commence under this Plan (regardless of the form of benefit actually selected by the Participant and regardless of when benefits actually commence under the Security Plan for Senior Management Employees I).
9
5.5 Separation from Service After Change in Control . If a Participants Separation from Service occurs within the Change in Control Period prior to his or her Normal Retirement Date, the Participant shall receive the Early Retirement Benefit calculated with the Early Retirement Factors set forth in 5.3. If the Separation from Service occurs on or after an Early Retirement Date, the Early Retirement Benefit shall commence on the first day of the month following the Early Retirement Date. If the Separation from Service occurs prior to an Early Retirement Date, the Early Retirement Benefit shall commence on the first day of the month following the Participants fifty-fifth (55 th ) birthday. Payment of this benefit cannot be deferred.
5.6.1 The Participant may also elect to receive Actuarial Equivalent payments in one of the forms of benefit listed below:
(a) A joint and survivor annuity with payments continued to the surviving spouse at an amount equal to two-thirds (2/3) of the Participants benefit.
(b) A joint and survivor annuity with payments continued to the surviving spouse at an amount equal to the Participants benefit.
(c) A single life annuity, if the Participant had previously elected one of the joint and survivor annuity options listed above.
5.6.2 If the Actuarial Equivalent of the Security Plan Retirement Benefit is less than $10,000 (or, if less, the then applicable dollar amount under Section 402(g)(1)(B) of the Code), the Administrative Committee may direct that the Participants benefit be paid as a lump sum as soon as practicable (but in all events within 90 days) after the Participants Termination Date.
5.6.3 The election to receive benefits in a different form of payment may be made at any time prior to commencement of payment.
10
5.8 Payment to Specified Employees . Notwithstanding anything to the contrary contained herein, if a Participant is deemed on his or her Termination Date to be a specified employee (as that term is used in Code Section 409A(a)(2)(B)), as determined under the Companys policy for determining specified employees, no payments shall be made under the Plan due to the Participants Separation from Service before the date that is 6 months following the Participants Separation from Service or, if earlier, the date of the Participants death, and any amounts accumulated during such period shall be paid in a lump sum payment to the Participant on the first business day following the date that is six months after the Participants Separation from Service or, if the Participant dies during such six month period, to the Participants Beneficiary within 60 days after the date of the Participants death. Any remaining payments and benefits due under the Plan shall be paid or provided in accordance with the normal payment dates specified for them herein.
ARTICLE VI
OTHER RETIREMENT PROVISIONS
ARTICLE VII
BENEFICIARY DESIGNATION
11
Any Beneficiary designation may be changed by a Participant by the filing of a written form prescribed by the Administrative Committee. The filing of a new Beneficiary designation form will cancel all Beneficiary designations previously filed. Any finalized divorce or marriage (other than common law) of a Participant subsequent to the date of filing of a Beneficiary designation form shall automatically revoke the prior designation. If a Participant fails to designate a Beneficiary as provided above, or if the Beneficiary designation is revoked by marriage or divorce, without execution of a new designation, or if all designated Beneficiaries predecease the Participant or die prior to complete distribution of the Participants benefits, then Participants designated Beneficiary shall be deemed to be the person or persons surviving the Participant in the first of the following classes in which there is a survivor, share and share alike:
7.1.1 the Participants surviving spouse;
7.1.2 the Participants children, except that if any of the children predecease the Participant but leave issue surviving, the issue shall take by right of representation;
7.1.3 the Participants personal representative (executor or administrator).
In the administration of this Plan, the Administrative Committee may, from time to time, employ agents and delegate to them such administrative duties as it sees fit and may from time to time consult with counsel who may be counsel to the Employer.
Subject to Article IX, the decision or action of the Administrative Committee in respect of any questions arising out of, or in connection with, the administration, interpretation and application of the Plan and the rules and regulations promulgated hereunder shall be final and conclusive and binding upon all persons having any interest in the Plan.
12
8.2 Indemnity of Administrative Committee . To the extent permitted by applicable law, the Employer shall indemnify, hold harmless and defend the Administrative Committee against any and all claims, loss, damage, expense or liability arising from any action or failure to act with respect to this Plan, provided that the Administrative Committee was acting in accordance with the applicable standard of care. The indemnity provisions set forth in this Article shall not be deemed to restrict or diminish in any way any other indemnity available to the Administrative Committee members in accordance with the Articles or By-laws of the Company.
9.2 Denial of Claim . If the claim or request is denied, the written notice of denial shall state:
9.2.1 the reason for denial, with specific reference to the Plan provisions where applicable on which the denial is based;
9.2.2 a description of any additional material or information required and an explanation of why it is necessary; and
9.2.3 an explanation of the Plans claims review procedure.
ARTICLE X
TERMINATION, SUSPENSION OR AMENDMENT
13
10.2 Change in Control . Notwithstanding Section 10.1 above, during a Change in Control Period, neither the Board nor the Administrative Committee may terminate this Plan with regard to accrued benefits of current Participants. No amendment may be made to the Plan during a Change in Control Period which would adversely affect the accrued benefits of current Participants, the benefits of any Participant who has retired, or the Beneficiary of any Participant who has died. The Plan shall continue to operate and be effective with regard to all current or retired Participants and their Beneficiaries during any Change in Control Period.
14
11.5 Not a Contract of Employment . The terms and conditions of this Plan shall not be deemed to constitute a contract of employment between the Employer and the Participant, and the Participant (or Participants Beneficiary) shall have no rights against the Employer except as may otherwise be specifically provided herein. Moreover, nothing in this Plan shall be deemed to give a Participant the right to be retained in the service of the Employer or to interfere with the right of the Employer to discipline or discharge the Participant at any time.
IDAHO POWER COMPANY
By:
/s/J. LaMont Keen
Chief Executive Officer
Dated:
11/19/09
By:
/s/Patrick A. Harrington
Corporate Secretary
Dated: 11/19/09
Adopted
effective as of January 1, 2005
Amended by the Board July 20, 2006
Amended by the Board November 20, 2008
Amended by the Board November 19, 2009
15
Exhibit 10.33
IDACORP, Inc. and
Idaho Power Company Compensation for
Non-Employee Directors of the Board of Directors
(As amended January 21, 2010)
All directors of IDACORP also serve as directors of Idaho
Power Company. The fees and other compensation discussed below are for service
on both boards. Employee directors receive no compensation for service on the
boards.
IDACORP, Idaho Power Company and Subsidiary Board Fees
Base Retainer |
$ |
45,000 |
||
Additional Retainers |
|
|
||
|
Chairman of the board |
$ |
75,000 |
|
|
Chairman of audit committee |
|
12,500 |
|
|
Chairman of compensation committee |
|
10,000 |
|
|
Chairman of corporate governance committee |
|
6,000 |
|
|
|
|
|
|
Meeting Fees 1 |
|
|
||
|
Board meeting |
$ |
1,500 |
|
|
Committee meeting |
|
1,500 |
|
|
Shareholder meeting |
|
1,500 |
|
|
|
|
|
|
Annual Stock Awards |
$ |
45,000 |
||
|
|
|
|
|
Subsidiary Board Fees |
|
|
||
|
IDACORP Financial Services |
|
|
|
|
|
Monthly retainer |
$ |
750 |
|
|
Meeting fees |
|
600 |
|
Ida-West Energy |
|
|
|
|
|
Monthly retainer |
$ |
750 |
|
|
Meeting fees |
|
600 |
|
|
|
|
|
1
The
chairman of the board does not receive meeting fees.
Deferral Arrangements
Directors may defer all or a
portion of their annual IDACORP, Idaho Power Company, IDACORP Financial
Services, Inc. and Ida-West Energy retainers and meeting fees and receive a
lump-sum payment of all amounts deferred with interest or a series of up to 10
equal annual payments after they experience a separation from service with
IDACORP and Idaho Power Company. Any cash fees that were deferred before 2009
will be credited with the preceding month's average Moody's Long-Term Corporate
Bond Yield for utilities (the "Moody's Rate") plus three percent, until January
1, 2019 when the interest rate will change to the Moody's Rate. All cash
fees that are deferred beginning January 1, 2009 will be credited with interest
at the
Moody's Rate. Interest is calculated on a pro rata basis each
month using a 360-day year and the average Moody's Rate for the preceding
month.
Effective January 1, 2009, directors may also defer their
annual stock awards, which are then held as deferred stock units with dividend
equivalents reinvested in additional deferred stock units. Upon separation
from service with IDACORP and Idaho Power Company, directors will receive
either a lump sum payment or a series of up to 10 equal annual installments.
Upon a change in control, as defined in the plan, the directors' deferral
accounts will be paid out in a lump sum. Payments will be in shares of IDACORP
common stock, with each deferred stock unit equal to one share of IDACORP
common stock and any fractional shares paid in cash.
Exhibit 10.40
Execution Version
Syndicated CUSIP NO. 45110LAC9
AMENDED AND RESTATED
CREDIT AGREEMENT
among
IDACORP, INC.,
as Borrower,
THE LENDERS NAMED HEREIN,
Wachovia Bank, National Association,
as Administrative Agent, Swingline Lender and LC Issuer,
JPMORGAN CHASE BANK, N.A.,
as Syndication Agent,
and
KEYBANK NATIONAL ASSOCIATION
and
WELLS FARGO BANK, N.A.
and
BANK OF AMERICA, N.A.
as Documentation Agents
$100,000,000 Senior Credit Facilities
WACHOVIA CAPITAL MARKETS, LLC
and
J.P. MORGAN SECURITIES INC.
as
Joint Lead Arrangers and Joint Book Runners
Dated as of April 25, 2007
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS
1.1...... Definitions........................................................................................................................... 1
1.2...... Other Interpretive Provisions............................................................................................. 14
ARTICLE 2
THE CREDITS
2.1...... Commitments..................................................................................................................... 15
2.2...... Required Payments; Termination....................................................................................... 16
2.3...... Types of Advances; Minimum Amount of Each Advance............................................... 16
2.4...... Fees.................................................................................................................................... 16
2.5...... Reduction or Termination of Aggregate Commitment...................................................... 17
2.6...... Optional Principal Payments.............................................................................................. 17
2.7...... Requesting Advances........................................................................................................ 17
2.8...... Conversion and Continuation of Outstanding Advances................................................. 20
2.9...... Changes in Interest Rate, etc............................................................................................. 20
2.10.... Rates Applicable After Default......................................................................................... 21
2.11.... Method of Payment........................................................................................................... 21
2.12.... Noteless Agreement; Evidence of Indebtedness............................................................... 21
2.13.... Telephonic Notices............................................................................................................ 22
2.14.... Interest Payment Dates; Interest and Fee Basis................................................................ 22
2.15.... Notification of Advances, Interest Rates, Prepayments and Commitment Reductions... 23
2.16.... Lending Installations......................................................................................................... 23
2.17.... Non-Receipt of Funds by the Administrative Agent........................................................ 24
2.18.... Facility LCs....................................................................................................................... 24
2.19.... Replacement of Lender..................................................................................................... 28
2.20.... Increase in Commitments.................................................................................................. 29
2.21.... Extension of Facility Termination Date............................................................................. 30
ARTICLE 3
YIELD PROTECTION; TAXES
3.1...... Yield Protection................................................................................................................. 31
3.2...... Changes in Capital Adequacy Regulations....................................................................... 32
3.3...... Availability of Types of Advances.................................................................................... 33
3.4...... Funding Indemnification................................................................................................... 33
3.5...... Taxes.................................................................................................................................. 33
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3.6...... Alternate Lending Installation; Lender Statements; Survival of Indemnity..................... 36
ARTICLE 4
CONDITIONS PRECEDENT
4.1...... Initial Credit Extension..................................................................................................... 37
4.2...... Each Credit Extension....................................................................................................... 37
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
5.1...... Existence and Standing..................................................................................................... 38
5.2...... Authorization and Validity................................................................................................ 38
5.3...... No Conflict; Government Consent.................................................................................... 38
5.4...... Financial Statements.......................................................................................................... 39
5.5...... Material Adverse Change.................................................................................................. 39
5.6...... Taxes.................................................................................................................................. 39
5.7...... Litigation and Contingent Obligations.............................................................................. 40
5.8...... Subsidiaries........................................................................................................................ 40
5.9...... ERISA............................................................................................................................... 40
5.10.... Accuracy of Information................................................................................................... 40
5.11.... Regulation U...................................................................................................................... 40
5.12.... Material Agreements.......................................................................................................... 40
5.13.... Compliance With Laws..................................................................................................... 41
5.14.... Ownership of Properties.................................................................................................... 41
5.15.... Plan Assets; Prohibited Transactions................................................................................. 41
5.16.... Environmental Matters...................................................................................................... 41
5.17.... Investment Company Act.................................................................................................. 41
5.18.... OFAC; PATRIOT Act...................................................................................................... 42
ARTICLE 6
COVENANTS
6.1...... Financial Reporting............................................................................................................ 42
6.2...... Use of Proceeds................................................................................................................. 43
6.3...... Notice of Default, etc........................................................................................................ 44
6.4...... Conduct of Business.......................................................................................................... 44
6.5...... Taxes.................................................................................................................................. 44
6.6...... Insurance............................................................................................................................ 44
6.7...... Compliance with Laws...................................................................................................... 44
6.8...... Maintenance of Properties................................................................................................. 44
6.9...... Inspection.......................................................................................................................... 45
6.10.... Merger and Sale of Assets................................................................................................. 45
6.11.... Liens.................................................................................................................................. 45
6.12.... Leverage Ratio................................................................................................................... 47
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6.13.... Investments and Acquisitions............................................................................................ 47
6.14.... Subsidiary Dividend Restrictions...................................................................................... 47
6.15.... Affiliates............................................................................................................................ 48
6.16.... OFAC, PATRIOT Act Compliance.................................................................................. 48
ARTICLE 7
DEFAULTS
ARTICLE 8
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1...... Acceleration; Facility LC Collateral Account................................................................... 50
8.2...... Amendments...................................................................................................................... 51
8.3...... Preservation of Rights....................................................................................................... 52
ARTICLE 9
GENERAL PROVISIONS
9.1...... Survival of Representations............................................................................................... 52
9.2...... Governmental Regulation.................................................................................................. 53
9.3...... Headings............................................................................................................................ 53
9.4...... Entire Agreement............................................................................................................... 53
9.5...... Several Obligations; Benefits of this Agreement.............................................................. 53
9.6...... Expenses; Indemnification................................................................................................ 53
9.7...... Numbers of Documents..................................................................................................... 54
9.8...... Accounting........................................................................................................................ 54
9.9...... Severability of Provisions.................................................................................................. 54
9.10.... Nonliability of Lenders...................................................................................................... 54
9.11.... Confidentiality................................................................................................................... 55
9.12.... Nonreliance........................................................................................................................ 55
9.13.... Disclosure.......................................................................................................................... 56
9.14.... PATRIOT Act Notice....................................................................................................... 56
9.15.... Counterparts...................................................................................................................... 56
ARTICLE 10
THE ADMINISTRATIVE AGENT
10.1.... Appointment; Nature of Relationship............................................................................... 56
10.2.... Powers............................................................................................................................... 57
10.3.... General Immunity.............................................................................................................. 57
10.4.... No Responsibility for Loans, Recitals, etc........................................................................ 57
10.5.... Action on Instructions of Lenders..................................................................................... 57
10.6.... Employment of Administrative Agents and Counsel........................................................ 58
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10.7.... Reliance on Documents; Counsel...................................................................................... 58
10.8.... Administrative Agents Reimbursement and Indemnification.......................................... 58
10.9.... Notice of Default............................................................................................................... 59
10.10.. Rights as a Lender............................................................................................................. 59
10.11.. Lender Credit Decision..................................................................................................... 59
10.12.. Successor Administrative Agent....................................................................................... 59
10.13.. Administrative Agent and Joint Lead Arranger Fees........................................................ 60
10.14.. Delegation to Affiliates..................................................................................................... 60
10.15.. Other Agents..................................................................................................................... 61
10.16.. LC Issuer and Swingline Lender....................................................................................... 61
ARTICLE 11
SETOFF; RATABLE PAYMENTS
11.1.... Setoff................................................................................................................................. 61
11.2.... Ratable Payments.............................................................................................................. 61
ARTICLE 12
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1.... Successors and Assigns..................................................................................................... 62
12.2.... Participations..................................................................................................................... 62
12.3.... Assignments....................................................................................................................... 63
12.4.... Dissemination of Information............................................................................................ 64
12.5.... Tax Treatment.................................................................................................................... 64
ARTICLE 13
NOTICES
13.1.... Notices............................................................................................................................... 65
13.2.... Change of Address............................................................................................................ 66
ARTICLE 14
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
14.1.... CHOICE OF LAW........................................................................................................... 66
14.2.... CONSENT TO JURISDICTION..................................................................................... 66
14.3.... WAIVER OF JURY TRIAL............................................................................................ 67
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Schedule I Pricing Schedule
Schedule II Commitments
Schedule 5.8 List of Subsidiaries
Schedule 5.12 Agreements which restrict Subsidiary Dividends or which could reasonably be expected to have a Material Adverse Effect
Schedule 5.14 Indebtedness and Liens
Schedule 13.1 Notice Addresses
EXHIBIT A Form of Opinion
EXHIBIT B Form of Compliance Certificate
EXHIBIT C Form of Assignment Agreement
EXHIBIT D Form of Loan/Credit Related Money Transfer Instructions
EXHIBIT E-1 Form of Revolving Note
EXHIBIT E-2 Form of Swingline Note
EXHIBIT F Form of Joinder Agreement
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AMENDED AND RESTATED CREDIT AGREEMENT
This Amended and Restated Credit Agreement, dated as of April 25, 2007, is made among IDACORP, Inc., an Idaho corporation, the Lenders, and Wachovia Bank, National Association, as Administrative Agent for the Lenders.
RECITALS
A. IDACORP, Inc., certain banks and other financial institutions, and Wachovia Bank, National Association, as administrative agent, are parties to a certain Credit Agreement dated as of May 3, 2005 (the Existing Credit Agreement ).
B. The parties hereto have agreed to amend and restate the Existing Credit Agreement on the terms and conditions set forth herein, it being the intention of the parties hereto that this Amended and Restated Credit Agreement and the Credit Documents executed in connection herewith shall not effect the novation of the obligations of IDACORP, Inc. thereunder but be merely a restatement and, where applicable, an amendment of and substitution for the terms governing such obligations hereafter.
C. The Lenders are willing to make available to IDACORP, Inc. the credit facilities provided for herein subject to and on the terms and conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE , in consideration of the mutual provisions, covenants and agreements herein contained, the parties hereto hereby agree as follows:
Acquisition means any transaction, or any series of related transactions, consummated on or after the Closing Date, by which the Borrower or any of its Subsidiaries (i) acquires any going business or all or substantially all of the assets of any firm, corporation or limited liability company, or division thereof, whether through purchase of assets, merger or otherwise or (ii) directly or indirectly acquires (in one transaction or as the most recent transaction in a series of transactions) at least a majority (in number of votes) of the securities of a corporation which have ordinary voting power for the election of directors (other than securities having such power only by reason of the happening of a contingency) or a majority (by percentage or voting power) of the outstanding ownership interests of a partnership or limited liability company.
Administrative Agent means Wachovia Bank, National Association in its capacity as administrative agent (i.e., contractual representative) of the Lenders pursuant to Article 9 , and not in its individual capacity as a Lender, and any successor Administrative Agent appointed pursuant to Article 9 .
Administrative Questionnaire means an administrative questionnaire, substantially in the form supplied by the Administrative Agent, completed by a Lender and furnished to the Administrative Agent in connection with this Agreement.
Advance means a borrowing hereunder, (i) made by the Lenders (or the Swingline Lender in the case of a Swingline Loan) on the same Borrowing Date, or (ii) converted or continued by the Lenders on the same date of conversion or continuation and, in either case, consisting of Revolving Loans of the same Type (or a Swingline Loan made by the Swingline Lender) and, in the case of Eurodollar Advances, for the same Interest Period.
Affected Lender is defined in Section 2.20 .
Affiliate of any Person means any other Person directly or indirectly controlling, controlled by or under common control with such Person. A Person shall be deemed to control another Person if the controlling Person owns 10% or more of any class of voting securities (or other ownership interests) of the controlled Person or possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of the controlled Person, whether through ownership of stock, by contract or otherwise.
Aggregate Commitment means the aggregate of the Commitments of all the Lenders, as reduced or increased from time to time pursuant to the terms hereof.
Aggregate Outstanding Credit Exposure means, at any time, the aggregate of the Outstanding Credit Exposure of all the Lenders.
Agreement means this Amended and Restated Credit Agreement, as amended, modified, restated or supplemented from time to time in accordance with its terms.
Agreement Accounting Principles means generally accepted accounting principles as in effect from time to time applied in a manner consistent with that used in preparing financial statements referred to in Section 4.4 .
Alternate Base Rate means, for any day, a rate of interest per annum equal to the higher of (i) the Prime Rate for such day and (ii) the sum of the Federal Funds Effective Rate for such day plus 1/2% per annum.
Applicable Margin means, with respect to Revolving Loans of any Type at any time, the percentage rate per annum which is applicable at such time with respect to Revolving Loans of such Type as set forth in the Pricing Schedule.
Assuming Lender is defined in Section 2.21(a) .
Authorized Officer means any of the Chief Executive Officer, President, Chief Financial Officer, Vice President or Treasurer of the Borrower, acting singly.
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Available Aggregate Commitment means, at any time, the Aggregate Commitment then in effect minus the Aggregate Outstanding Credit Exposure at such time.
Borrower means IDACORP, Inc., an Idaho corporation, and its successors and assigns.
Borrowing Date means a date on which an Advance is made hereunder.
Borrowing Notice is defined in Section 0 .
Business Day means (i) with respect to any borrowing, payment or rate selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on which banks generally are open in Charlotte, North Carolina, New York, New York and London, England for the conduct of substantially all of their commercial lending activities, interbank wire transfers can be made on the Fedwire system and dealings in United States dollars are carried on in the London interbank market and (ii) for all other purposes, a day (other than a Saturday or Sunday) on which banks generally are open in Charlotte, North Carolina for the conduct of substantially all of their commercial lending activities and interbank wire transfers can be made on the Fedwire system.
Capitalized Lease of a Person means any lease of Property by such Person as lessee, which would be capitalized on a balance sheet of such Person prepared in accordance with Agreement Accounting Principles.
Capitalized Lease Obligations of a Person means the amount of the obligations of such Person under Capitalized Leases which would be shown as a liability on a balance sheet of such Person prepared in accordance with Agreement Accounting Principles.
Cash Equivalent Investments means (i) short-term obligations of, or fully guaranteed by, the United States of America, (ii) commercial paper rated A-1 or better by S&P or P-1 or better by Moodys, (iii) demand deposit accounts maintained in the ordinary course of business, and (iv) certificates of deposit issued by and time deposits with commercial banks (whether domestic or foreign) having capital and surplus in excess of $100,000,000; provided in each case that the same provides for payment of both principal and interest (and not principal alone or interest alone) and is not subject to any contingency regarding the payment of principal or interest.
Change is defined in Section 3.2 .
Change in Control means the acquisition by any Person, or two or more Persons acting in concert, of beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934) of 20% or more of the outstanding shares of voting stock of the Borrower.
Change in Law means any change in law or in the interpretation, administration or application thereof (including the introduction of any new law, treaty or governmental rule, regulation or order), or any determination of a court or governmental authority, in each case that becomes effective after the date hereof.
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Closing Date means the first date all the conditions precedent in Section 3.1 are satisfied or waived in accordance with the terms of this Agreement.
Code means the Internal Revenue Code of 1986, as amended.
Collateral Shortfall Amount is defined in Section 0 .
Commitment means, for each Lender, the obligation of such Lender to make Revolving Loans to the Borrower and to participate in the Swingline Loans and Facility LCs issued upon the application of the Borrower, in an aggregate amount not exceeding the amount set forth opposite its name on Schedule II , or, if such Lender has entered into one or more assignments that has become effective pursuant to Section 11.3(a) or is an Increasing Lender or Assuming Lender, the amount set forth for such Lender at such time in the Register maintained by the Administrative Agent, in either case, as such amount may be reduced or increased from time to time pursuant to the terms hereof.
Commitment Increase and Commitment Increase Date are defined in Section 2.21(a) .
Condemnation is defined in Section 0 .
Consent Date is defined in Section 2.22(a) .
Consenting Lender is defined in Section 2.22(a) .
Consolidated Indebtedness means at any time the Indebtedness of the Borrower and its Subsidiaries calculated on a consolidated basis as of such time; provided , however that the aggregate outstanding Indebtedness evidenced by Hybrid Securities shall be excluded to the extent that the total book value of such Hybrid Securities does not exceed 15% of Consolidated Total Capitalization as of such time.
Consolidated Net Worth means at any time the consolidated stockholders equity of the Borrower and its Subsidiaries calculated on a consolidated basis as of such time.
Consolidated Total Capitalization means at any time, without duplication, the sum of (i) Consolidated Indebtedness, (ii) Consolidated Net Worth and (iii) the aggregate outstanding amount of Hybrid Securities, each calculated as of such time.
Contingent Obligation of a Person means any agreement, undertaking or arrangement by which such Person assumes, guarantees, endorses, contingently agrees to purchase or provide funds for the payment of, or otherwise becomes or is contingently liable upon, the obligation or liability of any other Person, or agrees to maintain the net worth or working capital or other financial condition of any other Person, or otherwise assures any creditor of such other Person against loss, including any comfort letter, operating agreement, take or pay contract or the obligations of any such Person as general partner of a partnership with respect to the liabilities of the partnership.
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Conversion/Continuation Notice is defined in Section 2.9 .
Controlled Group means all members of a controlled group of corporations or other business entities and all trades or businesses (whether or not incorporated) under common control which, together with the Borrower or any of its Subsidiaries, are treated as a single employer under Section 414 of the Code.
Credit Extension means the making of an Advance or the issuance of a Facility LC.
Credit Extension Date means the Borrowing Date for an Advance or the issuance date for a Facility LC.
Default means an event described in Article 6 .
Eligible Replacement Lender is defined in Section 0 .
Environmental Laws means any and all applicable federal, state, local and foreign statutes, laws, judicial decisions, regulations, ordinances, rules, judgments, orders, decrees, plans, injunctions, permits, concessions, grants, franchises, licenses, agreements and other governmental restrictions relating to (i) the protection of the environment, (ii) the effect of the environment on human health, (iii) emissions, discharges or releases of pollutants, contaminants, hazardous substances or wastes into surface water, ground water or land, or (iv) the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants, hazardous substances or wastes or the clean-up or other remediation thereof.
ERISA means the Employee Retirement Income Security Act of 1974.
Eurodollar Advance means a Revolving Loan which, except as otherwise provided in Section 2.11 , bears interest at the applicable Eurodollar Rate.
Eurodollar Base Rate means, with respect to a Eurodollar Advance for the relevant Interest Period, an interest rate per annum obtained by dividing (y) the rate of interest (rounded upward, if necessary, to the nearest 1/16 of one percentage point) appearing on Telerate Successor Page 3750 (or any successor page) or (z) if no such rate is available, the rate of interest determined by the Administrative Agent to be the rate or the arithmetic mean of rates (rounded upward, if necessary, to the nearest 1/16 of one percentage point) at which Dollar deposits in immediately available funds are offered to first-tier banks in the London interbank Eurodollar market, in each case under (y) and (z) above at approximately 11:00 a.m., London time, two (2) Business Days prior to the first day of such Interest Period for a period substantially equal to such Interest Period and in an amount substantially equal to the amount of Wachovias Eurodollar Advance comprising part of such Borrowing.
Eurodollar Rate means, with respect to a Eurodollar Advance for the relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar Base Rate applicable to such Interest Period, divided by (b) 1.00 minus the Reserve Requirement (expressed as a decimal) applicable to such Interest Period, plus (ii) the Applicable Margin.
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Excluded Taxes means, in the case of each Lender or applicable Lending Installation and the Administrative Agent, taxes imposed on its overall net income, receipts, profits, capital, net worth, franchise taxes, branch profits or similar taxes, imposed on it, by (i) the jurisdiction under the laws of which such Lender or the Administrative Agent is incorporated or organized, (ii) the jurisdiction in which the Administrative Agents or such Lenders principal executive office or such Lenders applicable Lending Installation is located, or (iii) the jurisdiction in which the Lender, Lending Installation or the Administrative Agent carries on a trade or business.
Extension Date is defined in Section 2.22(a) .
Extension Notice is defined in Section 2.22(a) .
Facility LC is defined in Section 2.19(a) .
Facility LC Application is defined in Section 2.19(c) .
Facility LC Collateral Account is defined in Section 2.19(k) .
Facility LC Maturity Date is defined in Section 2.19(a) .
Facility Termination Date means the earlier to occur of (i) April 25, 2012 (as such date may be extended from time to time pursuant to Section 2.22 ) or (ii) any earlier date on which the Aggregate Commitment is reduced to zero or otherwise terminated pursuant to the terms hereof.
Federal Funds Effective Rate means, for any day, an interest rate per annum (rounded upwards, if necessary, to the nearest 1/100 of one percentage point) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published for such day (or, if such day is not a Business Day, for the immediately preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations at approximately 10:00 a.m. on such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected in good faith by the Administrative Agent.
Fee Letters mean (a) the Wachovia Fee Letter and (b) the JPMorgan Fee Letter.
First Mortgage means that certain Mortgage and Deed of Trust, dated as of October 1, 1937, as supplemented, under which IPC is Mortgagor and Deutsche Bank Trust Company Americas (formerly known as Bankers Trust Company) and R.G. Page (Stanley Burg successor individual trustee) are Trustees, as it may from time to time be further amended, supplemented or otherwise modified.
Floating Rate means, for any day, a rate per annum equal to the sum of (i) the Alternate Base Rate for such day plus (ii) the Applicable Margin, in each case changing when and as the Alternate Base Rate changes.
Floating Rate Advance means a Revolving Loan which, except as otherwise provided in Section 2.11 , bears interest at the Floating Rate.
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Hybrid Securities shall mean any hybrid securities, including any trust preferred securities, deferrable interest subordinated debt securities, mandatory convertible debt securities or other hybrid securities issued by the Borrower or any Subsidiary or financing vehicle of the Borrower that (i) have an original maturity of at least twenty (20) years, (ii) require, absent an event of default with respect to such securities, no repayments or prepayments and no mandatory redemptions or repurchases, in each case, prior to the date which is ninety-one (91) days after the occurrence of the Facility Termination Date and (iii) permit the Borrower or any such Subsidiary or any such financing vehicle of the Borrower, respectively, at its option, to defer certain scheduled interest payments.
Increasing Lender is defined in Section 2.21(a) .
Indebtedness of a Person means such Persons (i) obligations for borrowed money, (ii) obligations representing the deferred purchase price of Property or services (other than accounts payable arising in the ordinary course of such Persons business payable on terms customary in the trade), (iii) obligations, whether or not assumed, secured by Liens or payable out of the proceeds or production from Property now or hereafter owned or acquired by such Person, (iv) obligations which are evidenced by notes, acceptances, or other instruments, (v) obligations of such Person to purchase securities or other Property arising out of or in connection with the sale of the same or substantially similar securities or Property, (vi) Capitalized Lease Obligations, (vii) Contingent Obligations, (viii) obligations in respect of Letters of Credit, (ix) Rate Management Obligations, (x) preferred stock which is required by the terms thereof to be redeemed, or for which mandatory sinking fund payments are due, by a fixed date, (xi) Off-Balance Sheet Liabilities, (xii) any other obligation for borrowed money or other financial accommodation which in accordance with Agreement Accounting Principles would be shown as a liability on the consolidated balance sheet of such Person and (xiii) amounts outstanding under a Permitted Receivables Securitization.
Indemnitee is defined in Section 8.6(b) .
Interest Period means, with respect to a Eurodollar Advance, a period of one, two, three or six months commencing on a Business Day selected by the Borrower pursuant to this Agreement. Each Interest Period shall end on the day which corresponds numerically to such date one, two, three or six months thereafter, provided that if there is no such numerically corresponding day in such next, second, third or sixth succeeding month, such Interest Period shall end on the last Business Day of such next, second, third or sixth succeeding month. If an Interest Period would otherwise end on a day which is not a Business Day, such Interest Period shall end on the next succeeding Business Day, provided that if said next succeeding Business Day falls in a new calendar month, such Interest Period shall end on the immediately preceding Business Day.
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Investment of a Person means any loan, advance (other than commission, travel and similar advances to officers and employees made in the ordinary course of business), extension of credit (other than accounts receivable arising in the ordinary course of business on terms customary in the trade) or contribution of capital by such Person; stocks, bonds, mutual funds, partnership interests, notes, debentures or other securities owned by such Person; any deposit accounts and certificate of deposit owned by such Person; and structured notes, derivative financial instruments and other similar instruments or contracts owned by such Person.
IPC means Idaho Power Company, an Idaho corporation.
Joinder Agreement means a written agreement substantially in the form of Exhibit F hereto.
Joint Lead Arrangers means Wachovia Capital Markets, LLC, and J.P. Morgan Securities Inc., and their respective successors, in their capacity as Joint Lead Arrangers and Joint Book Runners.
JP Morgan Fee Letter means the letter agreement dated March 15, 2007, among the Borrower, IPC, JPMorgan Chase Bank, N.A., and J.P. Morgan Securities Inc.
LC Fee is defined in Section 2.19(d) .
LC Issuer means each of Wachovia (or any subsidiary or Affiliate of Wachovia designated by Wachovia) and any other Lender approved by the Borrower and the Administrative Agent, in each case in its capacity as issuer of Facility LCs hereunder.
LC Obligations means, at any time, the sum, without duplication, of (i) the aggregate undrawn stated amount under all Facility LCs outstanding at such time plus (ii) the aggregate unpaid amount at such time of all Reimbursement Obligations.
LC Payment Date is defined in Section 0 .
Lenders means the lending institutions listed on the signature pages of this Agreement, their respective successors and assigns and any other Person that shall have become a Lender party hereto pursuant to a Joinder Agreement; provided , that unless the context otherwise requires, each reference herein to the Lenders shall be deemed to include the Swingline Lender in such capacity.
Lending Installation means, with respect to a Lender or the Administrative Agent, the office, branch, subsidiary or Affiliate of such Lender or the Administrative Agent specified in its Administrative Questionnaire or otherwise selected by such Lender or the Administrative Agent pursuant to Section 2.17 .
Letter of Credit of a Person means a letter of credit or similar instrument which is issued upon the application of such Person or upon which such Person is an account party or for which such Person is in any way liable.
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LIBOR Market Index Rate means, for any day, the sum of (i) the rate of interest for one month U.S. dollar deposits appearing on Telerate Successor Page 3750 (or any successor page) determined as of 11:00 a.m. (London time), for such day, or if such day is not a London Business Day, then the immediately preceding London Business Day (or if not so reported, then as determined by the Agent from another recognized source or interbank quotation) plus (ii) the Applicable Margin in effect for a Eurodollar Advance from time to time.
LIBOR Market Index Rate Advance means a Swingline Loan which, except as otherwise provided in Section 2.11 , bears interest at the LIBOR Market Index Rate.
Lien means any lien (statutory or other), mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including the interest of a vendor or lessor under any conditional sale, Capitalized Lease or other title retention agreement).
Loans means the Revolving Loans and the Swingline Loans.
Loan Documents means this Agreement, the Facility LC Applications, the Joinder Agreements and any Notes issued pursuant to Section 2.13 .
London Business Day means a day (other than Saturday or Sunday) on which banks generally are open in London, England for the conduct of substantially all of their commercial lending activities and dealings are carried on in the London interbank market.
Material Adverse Effect means a material adverse effect on (i) the business, Property, condition (financial or otherwise), results of operations, or prospects of the Borrower and its Subsidiaries taken as a whole, (ii) the ability of the Borrower to perform its obligations under the Loan Documents, or (iii) the validity or enforceability of any of the Loan Documents or the rights or remedies of the Administrative Agent, the LC Issuers or the Lenders thereunder.
Material Indebtedness means Indebtedness (other than Obligations) of the Borrower or any of its Subsidiaries, in an aggregate principal amount exceeding $25,000,000 (or its equivalent in any other currency). For purposes of determining Material Indebtedness, the principal amount of the obligations of the Borrower or any of its Subsidiaries in respect of any Rate Management Obligation at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or such Subsidiary would be required to pay if such Rate Management Obligation were terminated at such time of determination.
Material Subsidiary of the Borrower means any Subsidiary (a) whose gross revenues for the fiscal years in respect of which such statements and related balance sheet were prepared (or the last full fiscal year in the case of quarterly financial statements) exceeded 10% of the consolidated gross revenue of the Borrower and all its Subsidiaries for such fiscal year or (b) whose gross assets as at the end of such fiscal year were in excess of 10% of the consolidated gross assets of the Borrower and all its Subsidiaries for such fiscal year.
Modify and Modification are defined in Section 2.19(a) .
Moodys means Moodys Investors Service, Inc.
Multiemployer Plan means a Plan maintained pursuant to a collective bargaining agreement or any other arrangement to which the Borrower or any member of the Controlled Group is a party to which more than one employer is obligated to make contributions.
Non-Consenting Lender is defined in Section 2.22(a) .
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Non-U.S. Lender is defined in Section 3.5(d) .
Notes means any or all of the Revolving Notes and the Swingline Note.
Obligations means all unpaid principal of and accrued and unpaid interest on the Loans, all Reimbursement Obligations, all accrued and unpaid fees and all expenses, reimbursements, indemnities and other obligations of the Borrower to the Lenders or to any Lender, the Administrative Agent, the Swingline Lender, any LC Issuer or any indemnified party arising under the Loan Documents.
OFAC means the U.S. Department of the Treasurys Office of Foreign Assets Control, and any successor thereto.
Off-Balance Sheet Liability of a Person means, without duplication, (i) any repurchase obligation or liability of such Person with respect to accounts or notes receivable sold by such Person, (ii) any liability under any Sale and Leaseback Transaction which is not a Capitalized Lease, (iii) any liability under any so-called synthetic lease transaction entered into by such Person, or (iv) any obligation arising with respect to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the balance sheets of such Person, but excluding from this clause (iv) all Operating Leases.
Operating Lease of a Person means any lease of Property (other than a Capitalized Lease) by such Person as lessee, which has an original term (including any required renewals and any renewals effective at the option of the lessor) of one year or more.
Other Taxes is defined in Section 3.5(b) .
Outstanding Credit Exposure means, as to any Lender at any time, the sum of (i) the aggregate principal amount of all Loans made by such Lender outstanding at such time, (ii) such Lenders Pro Rata Share of the LC Obligations at such time and (iii) such Lenders (other than the Swingline Lenders) Pro Rata Share of the Swingline Loans outstanding at such time.
Participants is defined in Section 0 .
PATRIOT Act means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001)), as amended from time to time, and any successor statute, and all rules and regulations from time to time promulgated thereunder.
Payment Date means the last day of each March, June, September and December.
PBGC means the Pension Benefit Guaranty Corporation, or any successor thereto.
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Permitted Receivables Securitization means a limited recourse or non-recourse sale, assignment or contribution of accounts receivable and related records, collateral and rights of the Borrower and/or one or more of its Subsidiaries to one or more special purpose entities, in connection with the issuance of obligations by any such special purpose entity secured by such assets, the proceeds of the issuance of which obligations shall be made available, directly or indirectly, to the Borrower and/or the applicable Subsidiaries.
Person means any natural person, corporation, firm, joint venture, partnership, limited liability company, association, enterprise, trust or other entity or organization, or any government or political subdivision or any agency, department or instrumentality thereof.
Plan means an employee pension benefit plan which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code as to which the Borrower or any member of the Controlled Group may have any liability.
Pricing Schedule means Schedule I attached hereto identified as such.
Prime Rate means the per annum interest rate publicly announced from time to time by Wachovia in Charlotte, North Carolina, to be its prime rate (which may not necessarily be its lowest or best lending rate), as adjusted to conform to changes as of the opening of business on the date of any such change in such prime rate.
Prior Termination Date is defined in Section 0 .
Property of a Person means any and all property, whether real, personal, tangible, intangible, or mixed, of such Person, or other assets owned, leased or operated by such Person.
Pro Rata Share means, with respect to a Lender, a portion equal to a fraction the numerator of which is such Lenders Commitment and the denominator of which is the Aggregate Commitment (or, if the Commitments have been terminated, a portion equal to a fraction (i) the numerator of which is equal to the sum of (A) the principal amount of such Lenders Loans, (B) such Lenders (other than the Swingline Lenders) participation interest in the Swingline Loans, and (C) such Lenders participation interest in the LC Obligations, and (ii) the denominator of which is equal to the sum of (A) the aggregate principal amount of all Loans and (B) all LC Obligations).
Purchasers is defined in Section 11.3(a) .
Rate Management Obligations of a Person means any and all obligations of such Person, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), under (i) any and all Rate Management Transactions, and (ii) any and all cancellations, buy backs, reversals, terminations or assignments of any Rate Management Transactions.
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Rate Management Transaction means any transaction (including an agreement with respect thereto) now existing or hereafter entered into by the Borrower or IPC which is a rate swap, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, forward transaction, currency swap transaction, cross-currency rate swap transaction, currency option or any other similar transaction (including any option with respect to any of these transactions) or any combination thereof, whether linked to one or more interest rates, foreign currencies, commodity prices, equity prices or other financial measures.
Refunded Swingline Loans is defined in Section 0 .
Register is defined in Section 11.3(c) .
Regulation D means Regulation D of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor thereto or other regulation or official interpretation of said Board of Governors relating to reserve requirements applicable to member banks of the Federal Reserve System.
Regulation U means Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor or other regulation or official interpretation of said Board of Governors relating to the extension of credit by banks for the purpose of purchasing or carrying margin stocks applicable to member banks of the Federal Reserve System.
Reimbursement Obligations means, at any time, the aggregate of all obligations of the Borrower then outstanding under Section 2.19 to reimburse the LC Issuers for amounts paid by the LC Issuers in respect of any one or more drawings under Facility LCs.
Reportable Event means a reportable event as defined in Section 4043 of ERISA and the regulations issued under such section, with respect to a Plan, excluding, however, such events as to which the PBGC has by regulation waived the requirement of Section 4043(a) of ERISA that it be notified within thirty (30) days of the occurrence of such event, provided that a failure to meet the minimum funding standard of Section 412 of the Code and of Section 302 of ERISA shall be a Reportable Event regardless of the issuance of any such waiver of the notice requirement in accordance with either Section 4043(a) of ERISA or Section 412(d) of the Code.
Reports is defined in Section 8.6 .
Required Lenders means Lenders in the aggregate having at least a majority of the Aggregate Commitment or, if the Aggregate Commitment has been terminated, Lenders in the aggregate holding at least a majority of the Aggregate Outstanding Credit Exposure.
Reserve Requirement means, with respect to an Interest Period, the reserve percentage (expressed as a decimal and rounded upwards, if necessary, to the next higher 1/100 th of 1%) in effect from time to time during such Interest Period, as provided by the Federal Reserve Board, applied for determining the maximum aggregate reserve requirement (including all basic, supplemental, marginal and other reserves), which is imposed under Regulation D on Eurocurrency liabilities or under any similar or successor regulation with respect to Eurocurrency liabilities or Eurocurrency funding.
Revolving Loans is defined in Section 2.1(a) .
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Revolving Note means a promissory note issued at the request of a Lender pursuant to Section 2.13(d) , in substantially the form of Exhibit E-1 hereto, evidencing the aggregate indebtedness of the Borrower to such Lender resulting from the Revolving Loans made by such Lender.
Risk-Based Capital Guidelines is defined in Section 3.2 .
S&P means Standard and Poors Ratings Services, a division of The McGraw Hill Companies, Inc.
Sale and Leaseback Transaction means any sale or other transfer of Property by any Person with the intent to lease such Property as lessee.
Sanctioned Country means a country subject to a sanctions program identified on the list maintained by OFAC and available at http://www.treas.gov/offices/enforcement/ofac/sanctions/, or as otherwise published from time to time.
Sanctioned Person means (i) a Person named on the list of Specially Designated Nationals or Blocked Persons maintained by OFAC available at http://www.treas.gov/offices/enforcement/ofac/sdn/t11sdn.pdf, or as otherwise published from time to time, or (ii) (A) an agency of the government of a Sanctioned Country, (B) an organization controlled by a Sanctioned Country, or (C) a Person resident in a Sanctioned Country, to the extent subject to a sanctions program administered by OFAC.
Single Employer Plan means a Plan maintained by the Borrower or any member of the Controlled Group for employees of the Borrower or any member of the Controlled Group.
Subsidiary of a Person means (i) any corporation more than 50% of the outstanding securities having ordinary voting power of which shall at the time be owned or controlled, directly or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, or (ii) any partnership, limited liability company, association, joint venture or similar business organization more than 50% of the ownership interests having ordinary voting power of which shall at the time be so owned or controlled. Unless otherwise expressly provided, all references herein to a Subsidiary shall mean a Subsidiary of the Borrower.
Substantial Portion means, with respect to the Property of the Borrower and its Subsidiaries, Property which (i) represents more than 10% of the consolidated assets of the Borrower and its Subsidiaries as would be shown in the consolidated financial statements of the Borrower and its Subsidiaries as of the beginning of the twelve-month period ending with the month in which such determination is made, or (ii) is responsible for more than 10% of the consolidated net sales or of the consolidated net income of the Borrower and its Subsidiaries as reflected in the financial statements referred to in clause (i) above.
Swingline Borrowing Notice is defined in Section 2.8(b) .
Swingline Commitment shall mean $10,000,000 or, if less, the Aggregate Commitment at the time of determination, as such amount may be reduced.
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Swingline Lender shall mean Wachovia in its capacity as maker of Swingline Loans, and its successors in such capacity.
Swingline Loans is defined in Section 2.1(c) .
Swingline Note means a promissory note issued at the request of the Swingline Lender pursuant to Section 2.13(d) , in substantially the form of Exhibit E-2 hereto, evidencing the aggregate indebtedness of the Borrower to the Swingline Lender resulting from Swingline Loans made by the Swingline Lender.
Taxes means any and all present or future taxes, duties, levies, imposts, deductions, charges or withholdings, and any and all liabilities with respect to the foregoing, but excluding Excluded Taxes and Other Taxes.
Transferee is defined in Section 11.4 .
Type is defined in Section 2.3 .
Unfunded Liabilities means the amount (if any) by which the present value of all vested and unvested accrued benefits under all Single Employer Plans exceeds the fair market value of all such Plan assets allocable to such benefits, all determined as of the then most recent valuation date for such Plans using PBGC actuarial assumptions for single employer plan terminations.
Unmatured Default means an event which but for the lapse of time or the giving of notice, or both, would constitute a Default.
Unutilized Swingline Commitment means, with respect to the Swingline Lender at any time, the Swingline Commitment at such time less the aggregate principal amount of all Swingline Loans that are outstanding at such time.
Wachovia means Wachovia Bank, National Association, and its successors and assigns.
Wachovia Fee Letter means the letter agreement, dated March 15, 2007, among Borrower, IPC, Wachovia and Wachovia Capital Markets, LLC.
Wholly-Owned Subsidiary of a Person means (i) any Subsidiary all of the outstanding voting securities of which shall at the time be owned or controlled, directly or indirectly, by such Person or one or more Wholly-Owned Subsidiaries of such Person, or by such Person and one or more Wholly-Owned Subsidiaries of such Person, or (ii) any partnership, limited liability company, association, joint venture or similar business organization 100% of the ownership interests having ordinary voting power of which shall at the time be so owned or controlled.
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. In addition to certain fees described in Section 2.19(d) :
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. The Borrower may permanently reduce the Aggregate Commitment in whole, or in part ratably among the Lenders in integral multiples of $10,000,000, upon at least five (5) Business Days written notice to the Administrative Agent, which notice shall specify the amount of any such reduction, provided that the amount of the Aggregate Commitment may not be reduced below the Aggregate Outstanding Credit Exposure. All accrued facility fees and utilization fees shall be payable on the effective date of any termination of the obligations of the Lenders to make Credit Extensions hereunder.
. The Borrower may from time to time pay, without penalty or premium, all outstanding Floating Rate Advances or, in an aggregate amount of $5,000,000 or a higher integral multiple of $100,000, any portion of the outstanding Floating Rate Advances upon one (1) Business Days prior notice to the Administrative Agent. The Borrower may from time to time pay, subject to the payment of any funding indemnification amounts required by Section 3.4 but without penalty or premium, all outstanding Eurodollar Advances or, in an aggregate amount of $5,000,000 or a higher integral multiple of $100,000, any portion of the outstanding Eurodollar Advances upon three (3) Business Days prior notice to the Administrative Agent.
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.
Not later than 1:00 p.m. on each Borrowing Date, each Lender shall make available its Pro Rata Share of the Revolving Loan or Revolving Loans in funds immediately available to the Administrative Agent at its address specified pursuant to Article 12 . The Administrative Agent will make the funds so received from the Lenders available to the Borrower at the Administrative Agents aforesaid address.
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. Floating Rate Advances shall continue as Floating Rate Advances unless and until such Floating Rate Advances are converted into Eurodollar Advances pursuant to this Section 2.9 or are repaid in accordance with Section 2.7 . Each Eurodollar Advance shall continue as a Eurodollar Advance until the end of the then applicable Interest Period therefor, at which time such Eurodollar Advance shall be automatically converted into a Floating Rate Advance unless (x) such Eurodollar Advance is or was repaid in accordance with Section 2.7 or (y) the Borrower shall have given the Administrative Agent a Conversion/Continuation Notice (as defined below) requesting that, at the end of such Interest Period, such Eurodollar Advance continue as a Eurodollar Advance for the same or another Interest Period. Subject to Section 2.3 , the Borrower may elect from time to time to convert all or any part of a Floating Rate Advance into a Eurodollar Advance. The Borrower shall give the Administrative Agent irrevocable notice (a Conversion/Continuation Notice ) of each conversion of a Floating Rate Advance into a Eurodollar Advance or continuation of a Eurodollar Advance not later than 11:00 a.m. at least three (3) Business Days prior to the date of the requested conversion or continuation, specifying:
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. Notwithstanding anything to the contrary contained in Sections 0 , 2.9 or 2.10 , during the continuance of a Default the Required Lenders may, at their option, by notice to the Borrower, declare that no Advance may be made as, converted into or continued as a Eurodollar Advance. During the continuance of a Default the Required Lenders may, at their option, by notice to the Borrower, declare that (i) each Eurodollar Advance shall bear interest for the remainder of the applicable Interest Period at the rate otherwise applicable to such Interest Period plus 2% per annum, (ii) each Floating Rate Advance shall bear interest at a rate per annum equal to the Floating Rate in effect from time to time plus 2% per annum (iii) each LIBOR Market Index Rate Advance shall bear interest at a rate per annum equal to the LIBOR Market Index Rate in effect from time to time plus 2% per annum, and (iv) the LC Fee shall be increased by 2% per annum, provided that during the continuance of a Default under Sections 6(g) or 6(h) , the interest rates set forth in clauses (i) , (ii) and (iii) above and the increase in the LC Fee set forth in clause (iv) above shall be applicable to all Credit Extensions without any election or action on the part of the Administrative Agent or any Lender.
. All payments of the Obligations hereunder shall be made, without setoff, deduction, or counterclaim, in immediately available funds to the Administrative Agent at the Administrative Agents address specified pursuant to Article 12 , or at any other Lending Installation of the Administrative Agent specified in writing by the Administrative Agent to the Borrower, by 12:00 noon (local time) on the date when due and shall (except for payments of Reimbursement Obligations for which the applicable LC Issuer has not received payments from the Lenders or as otherwise specifically required hereunder) be applied ratably by the Administrative Agent among the Lenders. Each payment delivered to the Administrative Agent for the account of any Lender shall be delivered promptly by the Administrative Agent to such Lender in the same type of funds that the Administrative Agent received at its address specified pursuant to Article 12 or at any Lending Installation specified in a notice received by the Administrative Agent from such Lender. The Administrative Agent is hereby authorized to charge any account of the Borrower maintained with Wachovia for each payment of principal, interest, Reimbursement Obligations and fees as it becomes due hereunder. Each reference to the Administrative Agent in this Section 2.12 shall also be deemed to refer, and shall apply equally, (i) to the Swingline Lender, in the case of payments required to be made by the Borrower to the Swingline Lender and (ii) to the applicable LC Issuer, in the case of payments required to be made by the Borrower to such LC Issuer.
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. The Borrower hereby authorizes the Lenders and the Administrative Agent to extend, convert or continue Advances, effect selections of Types of Advances and to transfer funds based on telephonic notices made by any person or persons the Administrative Agent or any Lender in good faith believes to be acting on behalf of the Borrower, it being understood that the foregoing authorization is specifically intended to allow Borrowing Notices, Swingline Borrowing Notices and Conversion/Continuation Notices to be given telephonically. The Borrower agrees to deliver promptly to the Administrative Agent a written confirmation, if such confirmation is requested by the Administrative Agent or any Lender, of each telephonic notice signed by an Authorized Officer. If the written confirmation differs in any material respect from the action taken by the Administrative Agent and the Lenders, the records of the Administrative Agent and the Lenders shall govern absent manifest error.
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. Promptly after receipt thereof, the Administrative Agent will notify each Lender of the contents of each Aggregate Commitment reduction notice, Borrowing Notice (including Borrowing Notices received from the Swingline Lender in accordance with Section 0 ), Swingline Borrowing Notice, Conversion/Continuation Notice, and repayment notice received by it hereunder. Promptly after notice from any LC Issuer, the Administrative Agent will notify each Lender of the contents of each request for issuance of a Facility LC hereunder. The Administrative Agent will notify each Lender of the interest rate applicable to each Eurodollar Advance and each LIBOR Market Index Rate Advance promptly upon determination of such interest rate and will give each Lender prompt notice of each change in the Alternate Base Rate.
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. Each Lender may book its Loans, its participations in any outstanding Swingline Loans, and its participation in any LC Obligations and any LC Issuer may book the Facility LCs at any Lending Installation selected by such Lender or such LC Issuer, as the case may be, and may change its Lending Installation from time to time. All terms of this Agreement shall apply to any such Lending Installation and the Loans, Facility LCs, participations in outstanding Swingline Loans, participations in LC Obligations and any Notes issued hereunder shall be deemed held by each Lender or each LC Issuer, as the case may be, for the benefit of any such Lending Installation. Each Lender and each LC Issuer may, by written notice to the Administrative Agent and the Borrower in accordance with Article 12 , designate replacement or additional Lending Installations through which Loans will be made by it or Facility LCs will be issued by it and for whose account Loan payments or payments with respect to Facility LCs are to be made.
. Unless the Borrower or a Lender, as the case may be, notifies the Administrative Agent prior to the date on which it is scheduled to make payment to the Administrative Agent of (i) in the case of a Lender, the proceeds of a Loan or (ii) in the case of the Borrower, a payment of principal, interest or fees to the Administrative Agent for the account of the Lenders, that it does not intend to make such payment, the Administrative Agent may assume that such payment has been made. The Administrative Agent may, but shall not be obligated to, make the amount of such payment available to the intended recipient in reliance upon such assumption. If such Lender or the Borrower, as the case may be, has not in fact made such payment to the Administrative Agent, the recipient of such payment shall, on demand by the Administrative Agent, repay to the Administrative Agent the amount so made available together with interest thereon in respect of each day during the period commencing on the date such amount was so made available by the Administrative Agent until the date the Administrative Agent recovers such amount at a rate per annum equal to (x) in the case of payment by a Lender, the Federal Funds Effective Rate for such day for the first three (3) days and, thereafter, the interest rate applicable to the relevant Loan or (y) in the case of payment by the Borrower, the interest rate applicable to the relevant Loan.
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. If the Borrower is required pursuant to Sections 3.1 , 3.2 or 3.5 to make any additional payment to any Lender or if any Lenders obligation to make or continue, or to convert Floating Rate Advances into, Eurodollar Advances shall be suspended pursuant to Section 3.3 (any Lender so affected an Affected Lender ), the Borrower may elect, if such amounts continue to be charged or such suspension is still effective, to replace such Affected Lender as a Lender party to this Agreement, provided that no Default or Unmatured Default shall have occurred and be continuing at the time of such replacement, and provided further that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to the Borrower and the Administrative Agent shall agree, as of such date, to purchase for cash the Advances and other Obligations (excluding the amounts payable by the Borrower pursuant to clause (ii) of this proviso) due to the Affected Lender pursuant to an assignment substantially in the form of Exhibit C and to become a Lender for all purposes under this Agreement and to assume all obligations of the Affected Lender to be terminated as of such date and to comply with the requirements of Section 11.3 applicable to assignments, and (ii) the Borrower shall pay to such Affected Lender in same day funds on the day of such replacement (A) all interest, fees and other amounts then accrued but unpaid to such Affected Lender by the Borrower hereunder to and including the date of termination, including payments due to such Affected Lender under Sections 3.1 , 3.2 or 3.5 , and (B) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 3.4 had the Loans of such Affected Lender been prepaid on such date rather than sold to the replacement Lender.
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. If, on or after the Closing Date, the adoption of any law or any governmental or quasi governmental rule, regulation, policy, guideline or directive (whether or not having the force of law), or any change in the interpretation or administration thereof by any governmental or quasi-governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender or applicable Lending Installation or any LC Issuer with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency:
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and the result of any of the foregoing is to increase the cost to such Lender or applicable Lending Installation, Swingline Lender or such LC Issuer, as the case may be, of making or maintaining its Eurodollar Advances or LIBOR Market Index Rate Advances, or of issuing or participating in Swingline Loans or Facility LCs, or to reduce the return received by such Lender or applicable Lending Installation, Swingline Lender or such LC Issuer, as the case may be, in connection with such Eurodollar Advances, LIBOR Market Index Rate Advances, Facility LCs or participations therein, then, within fifteen (15) days of demand by such Lender, Swingline Lender or LC Issuer, as the case may be, the Borrower shall pay such Lender, Swingline Lender or LC Issuer, as the case may be, such additional amount or amounts as will compensate such Lender, Swingline Lender or LC Issuer for such increased cost or reduction in amount received.
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. If a Lender, Swingline Lender or any LC Issuer determines the amount of capital required or expected to be maintained by such Lender, Swingline Lender or such LC Issuer, any Lending Installation of such Lender, Swingline Lender or such LC Issuer, or any corporation controlling such Lender, Swingline Lender or such LC Issuer is increased as a result of a Change, then, within fifteen (15) days of demand by such Lender, Swingline Lender or such LC Issuer, the Borrower shall pay such Lender, Swingline Lender or such LC Issuer the amount necessary to compensate for any shortfall in the rate of return on the portion of such increased capital which such Lender, Swingline Lender or such LC Issuer determines is attributable to this Agreement, its Outstanding Credit Exposure or its Commitment to make Loans and issue or participate in Swingline Loans and Facility LCs, as the case may be, hereunder (after taking into account such Lenders, Swingline Lenders or LC Issuers policies as to capital adequacy). Change means (i) any change after the Closing Date in the Risk-Based Capital Guidelines, or (ii) any adoption of or change in any other law, governmental or quasi governmental rule, regulation, policy, guideline, interpretation, or directive (whether or not having the force of law) after the Closing Date which affects the amount of capital required or expected to be maintained by any Lender, Swingline Lender or any LC Issuer or any Lending Installation or any corporation controlling any Lender, Swingline Lender or any LC Issuer. Risk-Based Capital Guidelines means (i) the risk based capital guidelines in effect in the United States on the Closing Date, including transition rules, and (ii) the corresponding capital regulations promulgated by regulatory authorities outside the United States implementing the July 1988 report of the Basle Committee on Banking Regulation and Supervisory Practices Entitled International Convergence of Capital Measurements and Capital Standards, including transition rules, and any amendments to such regulations adopted prior to the Closing Date.
. If any Lender determines that maintenance of its Eurodollar Advances at a suitable Lending Installation would violate any applicable law, rule, regulation, or directive, whether or not having the force of law, or if the Required Lenders determine that (i) deposits of a type and maturity appropriate to match fund Eurodollar Advances are not available or (ii) the interest rate applicable to Eurodollar Advances does not accurately reflect the cost of making or maintaining Eurodollar Advances, then the Administrative Agent shall suspend the availability of Eurodollar Advances and require any affected Eurodollar Advances to be repaid or converted to Floating Rate Advances, subject to the payment of any funding indemnification amounts required by Section 3.4 .
. If any payment of a Eurodollar Advance occurs on a date which is not the last day of the applicable Interest Period, whether because of acceleration, prepayment or otherwise, or a Eurodollar Advance is not made on the date specified by the Borrower for any reason other than default by the Lenders, the Borrower will indemnify each Lender for any loss or cost incurred by it resulting therefrom, including any loss or cost in liquidating or employing deposits acquired to fund or maintain such Eurodollar Advance.
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. To the extent reasonably possible, each Lender shall designate an alternate Lending Installation with respect to its Eurodollar Advances to reduce any liability of the Borrower to such Lender under Sections 3.1 , 3.2 and 3.5 or to avoid the unavailability of Eurodollar Advances under Section 3.3 , so long as such designation is not, in the judgment of such Lender, disadvantageous to such Lender. Each Lender shall deliver a written statement of such Lender to the Borrower (with a copy to the Administrative Agent) as to the amount due, if any, under Sections 3.1 , 3.2 , 3.4 or 3.5 . Such written statement shall set forth in reasonable detail the calculations upon which such Lender determined such amount and shall be final, conclusive and binding on the Borrower in the absence of manifest error. Determination of amounts payable under such Sections in connection with a Eurodollar Advance shall be calculated as though each Lender funded its Eurodollar Advance through the purchase of a deposit of the type and maturity corresponding to the deposit used as a reference in determining the Eurodollar Rate applicable to such Revolving Loan, whether in fact that is the case or not. Unless otherwise provided herein, the amount specified in the written statement of any Lender shall be payable on demand after receipt by the Borrower of such written statement. The obligations of the Borrower under Sections 3.1 , 3.2 , 3.4 and 3.5 shall survive payment of the Obligations and termination of this Agreement.
. The Lenders and the LC Issuers shall not be required to make an initial Credit Extension hereunder unless the Borrower has furnished to the Administrative Agent sufficient copies for the Lenders of:
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. The obligation of each Lender to make any Credit Extension hereunder, including the initial Credit Extension (but excluding Revolving Loans made for the purpose of repaying Refunded Swingline Loans pursuant to Section 0 or for the purpose of paying unpaid reimbursement obligations of the Borrower pursuant to Section 0 ), is subject to the satisfaction of the following conditions precedent on the applicable Credit Extension Date:
Each Borrowing Notice, Swingline Borrowing Notice or request for issuance of a Facility LC with respect to each such Credit Extension shall constitute a representation and warranty by the Borrower that the conditions contained in Sections 3.2(i) and (ii) have been satisfied. Any Lender may require a duly completed compliance certificate in substantially the form of Exhibit B as a condition to making a Credit Extension.
The Borrower represents and warrants to the Lenders that:
. Each of the Borrower and its Subsidiaries is a corporation, partnership (in the case of Subsidiaries only) or limited liability company duly and properly incorporated or organized, as the case may be, validly existing and (to the extent such concept applies to such entity) in good standing under the laws of its jurisdiction of incorporation or organization and has all requisite authority to conduct its business in each jurisdiction in which its business is conducted, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
. The Borrower has the power and authority and legal right to execute and deliver the Loan Documents and to perform its obligations thereunder. The execution and delivery by the Borrower of the Loan Documents and the performance of its obligations thereunder have been duly authorized by proper corporate proceedings, and the Loan Documents constitute legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their terms, except as enforceability may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors rights generally.
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. Neither the execution and delivery by the Borrower of the Loan Documents, nor the consummation of the transactions therein contemplated, nor compliance with the provisions thereof will violate, except to the extent that such violation, alone or in the aggregate, could not reasonably be expected to have a Material Adverse Effect, (i) any law, rule, regulation, order, writ, judgment, injunction, decree or award binding on the Borrower or any of its Subsidiaries or (ii) the Borrowers or any Subsidiarys articles or certificate of incorporation, partnership agreement, certificate of partnership, articles or certificate of organization, bylaws, or operating or other management agreement, as the case may be, or (iii) the provisions of any indenture, instrument or agreement to which the Borrower or any of its Subsidiaries is a party or is subject, or by which it, or its Property, is bound, or conflict with or constitute a default thereunder, or result in, or require, the creation or imposition of any Lien in, of or on the Property of the Borrower or a Subsidiary pursuant to the terms of any such indenture, instrument or agreement. No order, consent, adjudication, approval, license, authorization, or validation of, or filing, recording or registration with, or exemption by, or other action in respect of any governmental or public body or authority, or any subdivision thereof, which has not been obtained by the Borrower or any of its Subsidiaries, is required to be obtained by the Borrower or any of its Subsidiaries in connection with the execution and delivery of the Loan Documents, the borrowings under this Agreement, the payment and performance by the Borrower of the Obligations or the legality, validity, binding effect or enforceability of any of the Loan Documents.
. The December 31, 2006 consolidated financial statements of the Borrower and its Subsidiaries heretofore delivered to the Lenders were prepared in accordance with the Agreement Accounting Principles in effect on the date such statements were prepared and fairly present the consolidated financial condition and operations of the Borrower and its Subsidiaries at such date and the consolidated results of their operations for the period then ended.
. Since December 31, 2006, there has been no change in the business, Property, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries which could reasonably be expected to have a Material Adverse Effect.
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. The Borrower and its Subsidiaries have filed all material United States federal tax returns and all other tax returns which are required to be filed and have paid all taxes due pursuant to said returns or pursuant to any assessment received by the Borrower or any of its Subsidiaries, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided in accordance with Agreement Accounting Principles. No tax liens have been filed and no claims are being asserted with respect to any such taxes claimed to be due and payable that would, if adversely determined, have a Material Adverse Effect. The charges, accruals and reserves for taxes on the books of the Borrower and its Subsidiaries (to the extent in excess of $5,000,000) are adequate under Agreement Accounting Principles. Notwithstanding any provision in this Agreement to the contrary, the only representations and warranties made by the Borrower with respect to matters relating to taxes shall be the representations and warranties set forth in this Section 4.6 , and this Agreement shall not be interpreted in any manner that is contrary hereto.
. Except as set forth in the most recent consolidated financial statements provided to the Administrative Agent pursuant to Section 4.4 or Section 5.1 , respectively, there is no litigation, arbitration, governmental investigation, proceeding or inquiry pending or, to the knowledge of any of their officers, threatened against or affecting the Borrower or any of its Subsidiaries which could reasonably be expected to have a Material Adverse Effect or which seeks to prevent, enjoin or delay the making of any Credit Extensions. Other than any liability incident to any litigation, arbitration or proceeding, which, if decided adversely, would not reasonably be expected to have a Material Adverse Effect, the Borrower has no material contingent liabilities or obligations not provided for or disclosed in the most recent consolidated financial statements provided to the Administrative Agent pursuant to Section 4.4 or Section 5.1 , respectively.
. Schedule 4.8 contains an accurate list of all Subsidiaries of the Borrower as of the Closing Date, setting forth their respective jurisdictions of organization and the percentage of their respective capital stock or other ownership interests owned by the Borrower or other Subsidiaries. All of the issued and outstanding shares of capital stock or other ownership interests of such Subsidiaries have been (to the extent such concepts are relevant with respect to such ownership interests) duly authorized and issued and are fully paid and nonassessable.
. The Unfunded Liabilities of all Single Employer Plans do not in the aggregate exceed $75,000,000. Neither the Borrower nor any other member of the Controlled Group has incurred, or is reasonably expected to incur, any withdrawal liability to Multiemployer Plans in excess of $25,000,000 in the aggregate. Each Plan complies in all material respects with all applicable requirements of law and regulations, no Reportable Event has occurred with respect to any Plan, neither the Borrower nor any other member of the Controlled Group has withdrawn from any Plan or initiated steps to do so, and no steps have been taken to reorganize or terminate any Plan.
. No information, exhibit or report furnished by the Borrower or any of its Subsidiaries to the Administrative Agent, the Joint Lead Arrangers or to any Lender in connection with the negotiation of, or compliance with, the Loan Documents contained any material misstatement of fact or omitted to state a material fact or any fact necessary to make the statements contained therein not misleading.
. Margin stock (as defined in Regulation U) constitutes less than 25% of the value of those assets of the Borrower and its Subsidiaries which are subject to any limitation on sale, pledge, or other restriction hereunder.
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. Except as set forth in Schedule 4.12 , neither the Borrower nor any Subsidiary is a party to any agreement or instrument or subject to any charter or other corporate restriction (a) which either prohibits or restricts the ability of any Subsidiary of Borrower to declare or pay dividends to the Borrower, or (b) which could reasonably be expected to have a Material Adverse Effect. Neither the Borrower nor any Subsidiary is in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in (i) any agreement to which it is a party, which default could reasonably be expected to have a Material Adverse Effect or (ii) any agreement or instrument evidencing or governing Material Indebtedness, which default could reasonably be expected to have a Material Adverse Effect.
. The Borrower and its Subsidiaries have complied with all applicable statutes, rules, regulations, orders and restrictions of any domestic or foreign government or any instrumentality or agency thereof having jurisdiction over the conduct of their respective businesses or the ownership of their respective Property except for any failure to comply with any of the foregoing which could not reasonably be expected to have a Material Adverse Effect.
. Except as set forth on Schedule 4.14 , as of the Closing Date, the Borrower and its Subsidiaries will have good title, free of all Liens other than those permitted by Section 5.11 , to all of the Property and assets reflected in the Borrowers most recent consolidated financial statements provided to the Administrative Agent as owned by the Borrower and its Subsidiaries.
. The Borrower is not an entity deemed to hold plan assets within the meaning of 29 C.F.R. § 2510.3-101 of an employee benefit plan (as defined in Section 3(3) of ERISA) which is subject to Title I of ERISA or any plan (within the meaning of Section 4975 of the Code), and neither the execution of this Agreement nor the making of Credit Extensions hereunder gives rise to a prohibited transaction within the meaning of Section 406 of ERISA or Section 4975 of the Code.
. In the ordinary course of its business, the Borrower considers the effect of Environmental Laws on the business of the Borrower and its Subsidiaries, in the course of which it identifies and evaluates potential risks and liabilities accruing to the Borrower due to Environmental Laws. On the basis of this consideration, the Borrower has concluded that the potential risks and liabilities accruing to the Borrower due to Environmental Laws could not reasonably be expected to have a Material Adverse Effect. Neither the Borrower nor any Subsidiary has received any notice to the effect that its operations are not in material compliance with any of the requirements of applicable Environmental Laws or are the subject of any federal or state investigation evaluating whether any remedial action is needed to respond to a release of any toxic or hazardous waste or substance into the environment, which noncompliance or remedial action could reasonably be expected to have a Material Adverse Effect.
. The Borrower is not an investment company or a company controlled by an investment company, within the meaning of the Investment Company Act of 1940.
.
During the term of this Agreement, unless the Required Lenders shall otherwise consent in writing:
. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with the Agreement Accounting Principles, and furnish to the Administrative Agent in sufficient copies for each of the Lenders:
. The Borrower will, and will cause each Subsidiary to, use the proceeds of the Credit Extensions for general corporate purposes and commercial paper back-up.
The Borrower will, and will cause each Subsidiary to, give prompt notice in writing to the Lenders of the occurrence of (i) any Default or Unmatured Default and (ii) the commencement of or any ruling in any litigation, or any other development, financial or otherwise, which could reasonably be expected to have a Material Adverse Effect.
. The Borrower will, and will cause each Material Subsidiary to, carry on and conduct its business in substantially the same manner and in substantially the same fields of enterprise as it is presently conducted and do all things necessary to remain duly incorporated or organized, validly existing and (to the extent such concept applies to such entity) in good standing as a domestic corporation, partnership or limited liability company in its jurisdiction of incorporation or organization, as the case may be, and maintain all requisite authority to conduct its business in each jurisdiction in which its business is conducted, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
. The Borrower will, and will cause each Subsidiary to, timely file complete and correct United States federal and applicable foreign, state and local tax returns required by law and pay when due all taxes, assessments and governmental charges and levies upon it or its income, profits or Property, except those which are being contested in good faith by appropriate proceedings and with respect to which adequate reserves have been set aside in accordance with Agreement Accounting Principles.
. The Borrower will, and will cause each Subsidiary to, maintain with financially sound and reputable insurance companies insurance on all their Property in such amounts and covering such risks as is consistent with sound business practice, and the Borrower will furnish to any Lender upon request full information as to the insurance carried.
. The Borrower will, and will cause each Subsidiary to, comply in all material respects with all laws, rules, regulations, orders, writs, judgments, injunctions, decrees or awards to which it may be subject including all Environmental Laws.
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. The Borrower will, and will cause each Subsidiary to, do all things necessary to maintain, preserve, protect and keep its Property in good repair, working order and condition, and make all necessary and proper repairs, renewals and replacements so that its business carried on in connection therewith may be properly conducted at all times.
. The Borrower will, and will cause each Subsidiary to, permit the Administrative Agent and the Lenders, by their respective representatives and agents, to inspect any of the Property, books and financial records of the Borrower and each Subsidiary, to examine and make copies of the books of accounts and other financial records of the Borrower and each Subsidiary, and to discuss the affairs, finances and accounts of the Borrower and each Subsidiary with, and to be advised as to the same by, their respective officers at such reasonable times and intervals as the Administrative Agent or any Lender may designate.
. Without the prior written consent of the Required Lenders (such consent not to be unreasonably withheld), the Borrower will not, nor will it permit any Material Subsidiary to, merge or consolidate with or into any other Person, or sell or otherwise dispose of all or substantially all of its Property to another Person except that (i) a Material Subsidiary may merge into the Borrower or a Wholly-Owned Subsidiary, (ii) a Material Subsidiary may dispose of all or substantially all of its Property to the Borrower or a Wholly-Owned Subsidiary, or (iii) the Borrower or any Subsidiary may sell, transfer, contribute, convey or dispose of accounts, general intangibles and/or chattel paper (each as defined in Article 9 of the Uniform Commercial Code) and associated collateral, lockbox and other collection accounts, records and/or proceeds in connection with a Permitted Receivables Securitization.
. The Borrower will not, nor will it permit any Material Subsidiary to, create, incur, or suffer to exist any Lien in, of or on the Property of the Borrower or any Material Subsidiary, except:
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. The Borrower will not permit the ratio, determined as of the end of each of its fiscal quarters, of (i) Consolidated Indebtedness to (ii) Consolidated Total Capitalization to be greater than 0.65 to 1.0.
. Without the prior written consent of the Required Lenders (such consent not to be unreasonably withheld), the Borrower will not, nor will it permit any Subsidiary to, make or suffer to exist any Investments (including loans and advances to, and other Investments in, Subsidiaries, or commitments therefor, or to create any Subsidiary or to become or remain a partner in any partnership or joint venture), or to make any Acquisition of any Person, except:
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. The Borrower will not, nor will it permit any Material Subsidiary to, become a party to any agreement prohibiting or restricting the ability of such Material Subsidiary to declare or pay dividends to the Borrower, except as disclosed in Schedule 4.12 , other than prohibitions or restrictions in connection with a Permitted Receivables Securitization.
. The Borrower will not, and will not permit any Subsidiary to, enter into any transaction (including the purchase or sale of any Property or service) with, or make any payment or transfer to, any Affiliate that is not a Subsidiary except in the ordinary course of business and pursuant to the reasonable requirements of the Borrowers or such Subsidiarys business and upon fair and reasonable terms no less favorable to the Borrower or such Subsidiary than the Borrower or such Subsidiary would obtain in a comparable arms-length transaction.
. The Borrower will, and will cause each of its Subsidiaries to, (i) refrain from doing business in a Sanctioned Country or with a Sanctioned Person in violation of the economic sanctions of the United States administered by OFAC, and (ii) provide, to the extent commercially reasonable, such information and take such actions as are reasonably requested by the Administrative Agent or any Lender in order to assist the Administrative Agent and the Lenders in maintaining compliance with the PATRIOT Act.
The occurrence of any one or more of the following events shall constitute a Default:
. Neither this Agreement or any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders (or by the Administrative Agent at the direction or with the consent of the Required Lenders); provided , however , that no such agreement shall:
. No delay or omission of the Lenders, the Swingline Lender, the LC Issuers or the Administrative Agent to exercise any right under the Loan Documents shall impair such right or be construed to be a waiver of any Default or an acquiescence therein, and the making of a Credit Extension notwithstanding the existence of a Default or the inability of the Borrower to satisfy the conditions precedent to such Credit Extension shall not constitute any waiver or acquiescence. Any single or partial exercise of any such right shall not preclude other or further exercise thereof or the exercise of any other right, and no waiver, amendment or other variation of the terms, conditions or provisions of the Loan Documents whatsoever shall be valid unless in writing signed by the Lenders required pursuant to Section 7.2 , and then only to the extent specifically set forth in such writing. All remedies contained in the Loan Documents or by law afforded shall be cumulative and all shall be available to the Administrative Agent, the LC Issuers, the Swingline Lender and the Lenders until the Obligations have been paid in full.
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. All representations and warranties of the Borrower contained in this Agreement shall survive the making of the Credit Extensions herein contemplated.
. Anything contained in this Agreement to the contrary notwithstanding, neither the LC Issuers, the Swingline Lender nor any Lender shall be obligated to extend credit to the Borrower in violation of any limitation or prohibition provided by any applicable statute or regulation.
. Section headings in the Loan Documents are for convenience of reference only, and shall not govern the interpretation of any of the provisions of the Loan Documents.
. The Loan Documents embody the entire agreement and understanding among the Borrower, the Administrative Agent, the LC Issuers, the Swingline Lender and the Lenders and supersede all prior agreements and understandings among the Borrower, the Administrative Agent, the LC Issuers, the Swingline Lender and the Lenders relating to the subject matter thereof other than the Fee Letters.
. The respective obligations of the Lenders hereunder are several and not joint and no Lender shall be the partner or agent of any other (except to the extent to which the Administrative Agent is authorized to act as such). The failure of any Lender to perform any of its obligations hereunder shall not relieve any other Lender from any of its obligations hereunder. This Agreement shall not be construed so as to confer any right or benefit upon any Person other than the parties to this Agreement and any Person indemnified under Section 8.6 or any other provision of this Agreement, and their respective successors and assigns, provided that the parties hereto expressly agree that each Joint Lead Arranger shall enjoy the benefits of the provisions of Sections 8.6 , 0 and 9.11 to the extent specifically set forth therein and shall have the right to enforce such provisions on its own behalf and in its own name to the same extent as if it were a party to this Agreement.
. All statements, notices, closing documents, and requests hereunder shall be furnished to the Administrative Agent with sufficient counterparts so that the Administrative Agent may furnish one to each of the Lenders.
. Except as provided to the contrary herein, all accounting terms used herein shall be interpreted and all accounting determinations hereunder shall be made in accordance with Agreement Accounting Principles.
. Any provision in any Loan Document that is held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or invalid without affecting the remaining provisions in that jurisdiction or the operation, enforceability, or validity of that provision in any other jurisdiction, and to this end the provisions of all Loan Documents are declared to be severable.
. The relationship between the Borrower on the one hand and the Lenders, the Swingline Lender, the LC Issuers and the Administrative Agent on the other hand shall be solely that of borrower and lender. None of the Administrative Agent, either Joint Lead Arranger, any LC Issuer, the Swingline Lender or any Lender shall have any fiduciary responsibilities to the Borrower. None of the Administrative Agent, either Joint Lead Arranger, any LC Issuer, the Swingline Lender or any Lender undertakes any responsibility to the Borrower to review or inform the Borrower of any matter in connection with any phase of the Borrowers business or operations. The Borrower agrees that no Indemnitee shall have liability to the Borrower (whether sounding in tort, contract or otherwise) for losses suffered by the Borrower in connection with, arising out of, or in any way related to, the transactions contemplated and the relationship established by the Loan Documents, or any act, omission or event occurring in connection therewith, unless it is determined in a final non-appealable judgment by a court of competent jurisdiction that such losses resulted from the gross negligence or willful misconduct of the party from which recovery is sought. No Indemnitee shall have any liability with respect to, and the Borrower hereby waives, releases and agrees not to sue for, (i) any special, indirect, consequential or punitive damages suffered by the Borrower in connection with, arising out of, or in any way related to the Loan Documents or the transactions contemplated thereby, and (ii) any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. The provisions of this Section 0 shall survive the termination of this Agreement.
. Each Lender agrees to hold any confidential information which it may receive from the Borrower pursuant to this Agreement in confidence, except for disclosure (i) to its Affiliates and to other Lenders and their respective Affiliates, (ii) to legal counsel, accountants, and other professional advisors to such Lender or to a Transferee, (iii) to regulatory officials having jurisdiction over such Lender or any of its Affiliates, (iv) as required by law, regulation, or legal process, (v) as required in connection with any legal proceeding to which such Lender is a party, (vi) to such Lenders direct or indirect contractual counterparties in Rate Management Transactions or to legal counsel, accountants and other professional advisors to such counterparties, (vii) permitted by Section 11.4 and (viii) in connection with the exercise of rights or remedies hereunder or any action or proceeding relating to this agreement. In the case of any disclosure pursuant to clause (i) , (ii) , (vi) or (vii) above, each Person to whom such disclosure is made will be informed of the confidential nature of such information and instructed to keep such information confidential. In the case of any requested disclosure pursuant to clause (iv) or (v) above, the applicable Lender will give prompt notice of the request to the Borrower (unless prohibited by the terms of the applicable law, regulation, subpoena or other legal process or proceeding) so that the Borrower may endeavor to obtain a protective order or other assurance of confidential treatment.
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. Each Lender hereby represents that it is not relying on or looking to any margin stock (as defined in Regulation U of the Board of Governors of the Federal Reserve System) for the repayment of the Credit Extensions provided for herein.
. The Borrower and each Lender hereby acknowledge and agree that Wachovia and/or its Affiliates from time to time may hold investments in, make other loans to or have other relationships with the Borrower and its Affiliates.
. Each Lender that is subject to the PATRIOT Act and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the PATRIOT Act, it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower in accordance with the PATRIOT Act.
. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one agreement, and any of the parties hereto may execute this Agreement by signing any such counterpart. This Agreement shall be effective when it has been executed by the Borrower, the Administrative Agent, the LC Issuers, the Swingline Lender and the Lenders as of the Closing Date and each party has notified the Administrative Agent by facsimile transmission or telephone that it has taken such action.
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. Wachovia Bank, National Association is hereby appointed by each of the Lenders as its contractual representative (herein referred to as the Administrative Agent ) hereunder and under each other Loan Document, and each of the Lenders (for purposes of this Article, references to Lenders shall also mean each LC Issuer and the Swingline Lender) irrevocably authorizes the Administrative Agent to act as the contractual representative of such Lender with the rights and duties expressly set forth herein and in the other Loan Documents. The Administrative Agent agrees to act as such contractual representative upon the express conditions contained in this Article 9 . Notwithstanding the use of the defined term Administrative Agent , it is expressly understood and agreed that the Administrative Agent shall not have any fiduciary responsibilities to any Lender by reason of this Agreement or any other Loan Document and that the Administrative Agent is merely acting as the contractual representative of the Lenders with only those duties as are expressly set forth in this Agreement and the other Loan Documents. In its capacity as the Lenders contractual representative, the Administrative Agent (i) does not hereby assume any fiduciary duties to any of the Lenders, (ii) is a representative of the Lenders within the meaning of Section 9-105 of the Uniform Commercial Code and (iii) is acting as an independent contractor, the rights and duties of which are limited to those expressly set forth in this Agreement and the other Loan Documents. Each of the Lenders hereby agrees to assert no claim against the Administrative Agent on any agency theory or any other theory of liability for breach of fiduciary duty, all of which claims each Lender hereby waives.
. The Administrative Agent shall have and may exercise such powers under the Loan Documents as are specifically delegated to the Administrative Agent by the terms of each thereof, together with such powers as are reasonably incidental thereto. The Administrative Agent shall have no implied duties to the Lenders, or any obligation to the Lenders to take any action thereunder except any action specifically provided by the Loan Documents to be taken by the Administrative Agent.
. Neither the Administrative Agent nor any of its directors, officers, agents or employees shall be liable to the Borrower, the Lenders or any Lender for any action taken or omitted to be taken by it or them hereunder or under any other Loan Document or in connection herewith or therewith except to the extent such action or inaction is determined in a final non-appealable judgment by a court of competent jurisdiction to have arisen from the gross negligence or willful misconduct of such Person.
Neither the Administrative Agent nor any of its directors, officers, agents or employees shall be responsible for or have any duty to ascertain, inquire into, or verify (a) any statement, warranty or representation made in connection with any Loan Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements of any obligor under any Loan Document, including any agreement by an obligor to furnish information directly to each Lender; (c) the satisfaction of any condition specified in Article 0 , except receipt of items required to be delivered solely to the Administrative Agent; (d) the existence or possible existence of any Default or Unmatured Default; (e) the validity, enforceability, effectiveness, sufficiency or genuineness of any Loan Document or any other instrument or writing furnished in connection therewith; (f) the value, sufficiency, creation, perfection or priority of any Lien in any collateral security; or (g) the financial condition of the Borrower or any guarantor of any of the Obligations or of any of the Borrowers or any such guarantors respective Subsidiaries. The Administrative Agent shall have no duty to disclose to the Lenders information that is not required to be furnished by the Borrower to the Administrative Agent at such time, but is voluntarily furnished by the Borrower to the Administrative Agent (either in its capacity as Administrative Agent or in its individual capacity).
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. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder and under any other Loan Document in accordance with written instructions signed by the Required Lenders, and such instructions and any action taken or failure to act pursuant thereto shall be binding on all of the Lenders. The Lenders hereby acknowledge that the Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement or any other Loan Document unless it shall be requested in writing to do so by the Required Lenders. The Administrative Agent shall be fully justified in failing or refusing to take any action hereunder and under any other Loan Document unless it shall first be indemnified to its satisfaction by the Lenders pro rata against any and all liability, cost and expense that it may incur by reason of taking or continuing to take any such action.
. The Administrative Agent may execute any of its duties as Administrative Agent hereunder and under any other Loan Document by or through employees, agents, and attorneys-in-fact and shall not be answerable to the Lenders (except as to money or securities received by it or its authorized agents) for the default or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. The Administrative Agent shall be entitled to advice of counsel concerning the contractual arrangement between the Administrative Agent and the Lenders and all matters pertaining to the Administrative Agents duties hereunder and under any other Loan Document.
. The Administrative Agent shall be entitled to rely upon any Note, notice, consent, certificate, affidavit, letter, telegram, statement, paper or document believed by it to be genuine and correct and to have been signed or sent by the proper person or persons, and, in respect to legal matters, upon the opinion of counsel selected by the Administrative Agent, which counsel may be employees of the Administrative Agent.
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. The Lenders agree to reimburse and indemnify the Administrative Agent ratably in proportion to their respective Commitments (or, if the Commitments have been terminated, in proportion to their Commitments immediately prior to such termination) (i) for any amounts not reimbursed by the Borrower for which the Administrative Agent is entitled to reimbursement by the Borrower under the Loan Documents, (ii) for any other expenses incurred by the Administrative Agent on behalf of the Lenders, in connection with the preparation, execution, delivery, administration and enforcement of the Loan Documents (including for any expenses incurred by the Administrative Agent in connection with any dispute between the Administrative Agent and any Lender or between two or more of the Lenders) and (iii) for any liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against the Administrative Agent in any way relating to or arising out of the Loan Documents or any other document delivered in connection therewith or the transactions contemplated thereby (including for any such amounts incurred by or asserted against the Administrative Agent in connection with any dispute between the Administrative Agent and any Lender or between two or more of the Lenders), or the enforcement of any of the terms of the Loan Documents or of any such other documents, provided that (x) no Lender shall be liable for any of the foregoing to the extent any of the foregoing is found in a final non-appealable judgment by a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of the Administrative Agent and (y) any indemnification required pursuant to Section 0 shall, notwithstanding the provisions of this Section 9.8 , be paid by the relevant Lender in accordance with the provisions thereof. The obligations of the Lenders under this Section 9.8 shall survive payment of the Obligations and termination of this Agreement.
. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Unmatured Default hereunder unless the Administrative Agent has received written notice from a Lender or the Borrower referring to this Agreement, describing such Default or Unmatured Default and stating that such notice is a notice of default. In the event that the Administrative Agent receives such a notice, the Administrative Agent shall give prompt notice thereof to the Lenders.
. In the event the Administrative Agent is a Lender, the Administrative Agent shall have the same rights and powers hereunder and under any other Loan Document with respect to its Commitment and its Loans as any Lender and may exercise the same as though it were not the Administrative Agent, and the term Lender or Lenders shall, at any time when the Administrative Agent is a Lender, unless the context otherwise indicates, include the Administrative Agent in its individual capacity. The Administrative Agent and its Affiliates may accept deposits from, lend money to, and generally engage in any kind of trust, debt, equity or other transaction, in addition to those contemplated by this Agreement or any other Loan Document, with the Borrower or any of its Subsidiaries in which the Borrower or such Subsidiary is not restricted hereby from engaging with any other Person. The Administrative Agent, in its individual capacity, is not obligated to remain a Lender.
. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent, either Joint Lead Arranger or any other Lender and based on the financial statements prepared by the Borrower and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement and the other Loan Documents. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent, either Joint Lead Arranger or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement and the other Loan Documents.
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. The Administrative Agent may resign at any time by giving written notice thereof to the Lenders and the Borrower, such resignation to be effective upon the appointment of a successor Administrative Agent or, if no successor Administrative Agent has been appointed, forty-five (45) days after the retiring Administrative Agent gives notice of its intention to resign. The Administrative Agent may be removed at any time with or without cause by written notice received by the Administrative Agent from the Required Lenders, such removal to be effective on the date specified by the Required Lenders. Upon any such resignation or removal, the Required Lenders shall have the right to appoint, on behalf of the Borrower and the Lenders, a successor Administrative Agent. If no successor Administrative Agent shall have been so appointed by the Required Lenders within thirty (30) days after the resigning Administrative Agents giving notice of its intention to resign, then the resigning Administrative Agent may appoint, on behalf of the Borrower and the Lenders, a successor Administrative Agent. Notwithstanding the previous sentence, the Administrative Agent may at any time without the consent of the Borrower or any Lender, appoint any of its Affiliates, which is a commercial bank as a successor Administrative Agent hereunder. If the Administrative Agent has resigned or been removed and no successor Administrative Agent has been appointed, the Lenders may perform all the duties of the Administrative Agent hereunder and the Borrower shall make all payments in respect of the Obligations to the applicable Lender and for all other purposes shall deal directly with the Lenders. No successor Administrative Agent shall be deemed to be appointed hereunder until such successor Administrative Agent has accepted the appointment. Any such successor Administrative Agent shall be a commercial bank having capital and retained earnings of at least $100,000,000. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the resigning or removed Administrative Agent. Upon the effectiveness of the resignation or removal of the Administrative Agent, the resigning or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the Loan Documents. After the effectiveness of the resignation or removal of an Administrative Agent, the provisions of this Article 9 shall continue in effect for the benefit of such Administrative Agent in respect of any actions taken or omitted to be taken by it while it was acting as the Administrative Agent hereunder and under the other Loan Documents. In the event that there is a successor to the Administrative Agent by merger, or the Administrative Agent assigns its duties and obligations to an Affiliate pursuant to this Section 9.12 , then the term Prime Rate as used in this Agreement shall mean the prime rate, base rate or other analogous rate of the new Administrative Agent.
. The Borrower agrees to pay to the Administrative Agent and each Joint Lead Arranger, for their accounts, the fees agreed to by the Borrower, the Administrative Agent and/or such Joint Lead Arrangers pursuant to the Fee Letters.
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. The Borrower and the Lenders agree that the Administrative Agent may delegate any of its duties under this Agreement to any of its Affiliates. Any such Affiliate (and such Affiliates directors, officers, agents and employees) which performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver and other protective provisions to which the Administrative Agent is entitled under Article 8 and Article 9 .
. No Lender identified on the cover page, the signature pages or otherwise in this Agreement, or in any document related hereto, as being the Syndication Agent or a Documentation Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement in such capacity other than those applicable to all Lenders. Each Lender acknowledges that it has not relied, and will not rely, on any Person so identified in deciding to enter into this Agreement or in taking or refraining from taking any action hereunder or pursuant hereto.
. The provisions of this Article 9 (other than Section 9.10 ) shall apply to each LC Issuer and the Swingline Lender mutatis mutandis to the same extent as such provisions apply to the Administrative Agent.
. In addition to, and without limitation of, any rights (including other rights of setoff) of the Lenders under applicable law, if the Borrower becomes insolvent, however evidenced, or any Default occurs, any and all deposits (including all account balances, whether provisional or final and whether or not collected or available) and any other Indebtedness at any time held or owing by any Lender, any LC Issuer, the Swingline Lender or any of their respective Affiliates to or for the credit or account of the Borrower may be offset and applied toward the payment of the Obligations owing to such Lender, such LC Issuer, the Swingline Lender or any such Affiliate whether or not the Obligations, or any part thereof, shall then be due. The Swingline Lender, each Lender and each LC Issuer agrees to notify the Borrower and the Administrative Agent in writing promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application.
61 |
. If any Lender, whether by setoff or otherwise, has payment made to it upon its Outstanding Credit Exposure (other than payments received pursuant to Sections 3.1 , 3.2 , 3.4 or 3.5 ) in a greater proportion than that received by any other Lender, such Lender agrees, promptly upon demand, to purchase a portion of the Aggregate Outstanding Credit Exposure held by the other Lenders so that after such purchase each Lender will hold its Pro Rata Share of the Aggregate Outstanding Credit Exposure. If any Lender, whether in connection with setoff or amounts which might be subject to setoff or otherwise, receives collateral or other protection for its Obligations or such amounts which may be subject to setoff, such Lender agrees, promptly upon demand, to take such action necessary such that all Lenders share in the benefits of such collateral ratably in proportion to their respective Pro Rata Share of the Aggregate Outstanding Credit Exposure. In case any such payment is disturbed by legal process, or otherwise, appropriate further adjustments shall be made. If an amount to be setoff is to be applied to Indebtedness of the Borrower to a Lender other than Indebtedness comprised of the Outstanding Credit Exposure of such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness comprised of such Outstanding Credit Exposure.
. The terms and provisions of the Loan Documents shall be binding upon and inure to the benefit of the Borrower and the Lenders and their respective successors and assigns, except that (i) the Borrower shall not have the right to assign its rights or obligations under the Loan Documents and (ii) any assignment by any Lender must be made in compliance with Section 11.3 . The parties to this Agreement acknowledge that clause (ii) of the foregoing sentence relates only to absolute assignments and does not prohibit assignments creating security interests, including (x) any pledge or assignment by any Lender of all or any portion of its rights under this Agreement and any Note to a Federal Reserve Bank or (y) in the case of a Lender which is a fund, any pledge or assignment of all or any portion of its rights under this Agreement and any Note to its trustee in support of its obligations to its trustee; provided that no such pledge or assignment creating a security interest shall release the transferor Lender from its obligations hereunder unless and until the parties thereto have complied with the provisions of Section 11.3 . The Administrative Agent may treat the Person which made any Loan or which holds any Note as the owner thereof for all purposes hereof unless and until such Person complies with Section 11.3 ; provided that the Administrative Agent may in its discretion (but shall not be required to) follow instructions from the Person which made any Loan or which holds any Note to direct payments relating to such Loan or Note to another Person. Any assignee of the rights to any Loan or any Note agrees by acceptance of such assignment to be bound by all the terms and provisions of the Loan Documents. Any request, authority or consent of any Person, who at the time of making such request or giving such authority or consent is the owner of the rights to any Loan (whether or not a Note has been issued in evidence thereof), shall be conclusive and binding on any subsequent holder or assignee of the rights to such Loan.
63 |
. The Borrower authorizes each Lender to disclose to any Participant or Purchaser or any other Person acquiring an interest in the Loan Documents by operation of law (each a Transferee ) and any prospective Transferee any and all information in such Lenders possession concerning the creditworthiness of the Borrower and its Subsidiaries, including any information contained in any Reports; provided that each Transferee and prospective Transferee agrees to be bound by Section 8.11 of this Agreement.
64 |
. If any interest in any Loan Document is transferred to any Transferee, which is organized under the laws of any jurisdiction other than the United States or any State thereof, the transferor Lender shall cause such Transferee, concurrently with the effectiveness of such transfer, to comply with the provisions of Section 3.5(d) and such Transferee shall not be entitled to any additional payments under Section 3.5 , (i) unless, and only to the extent, that the transferor Lender was entitled to amounts under Section 3.5 , or (ii) in the event that payments to the Transferee were not subject to any withholding at the time of transfer and became subject to withholding as a result of a Change In Law.
. The Borrower, the Administrative Agent and any Lender may each change the address for service of notice upon it by a notice in writing to the other parties hereto.
. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL (EXCEPT AS MAY BE EXPRESSLY OTHERWISE PROVIDED IN ANY LOAN DOCUMENT) BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAW RULES); PROVIDED THAT EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT OR APPLICATION THEREFOR OR, IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE INTERNATIONAL STANDBY PRACTICES OF THE INTERNATIONAL CHAMBER OF COMMERCE, AS IN EFFECT FROM TIME TO TIME (THE ISP ), AND, AS TO MATTERS NOT GOVERNED BY THE ISP, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAW RULES).
66 |
. THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NORTH CAROLINA SITTING IN MECKLENBURG COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE WESTERN DISTRICT OF NORTH CAROLINA, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE ADMINISTRATIVE AGENT, ANY LC ISSUER OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER AGAINST THE ADMINISTRATIVE AGENT, ANY LC ISSUER OR ANY LENDER OR ANY AFFILIATE OF THE ADMINISTRATIVE AGENT, ANY LC ISSUER OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN CHARLOTTE, NORTH CAROLINA.
. THE BORROWER, THE ADMINISTRATIVE AGENT, EACH LC ISSUER AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
[Signatures Follow]
67 |
IN WITNESS WHEREOF , the Borrower, the Lenders, the Swingline Lender, the LC Issuers and the Administrative Agent have executed this Agreement as of the date first above written.
IDACORP, INC.
By: /s/ Steven R. Keen
Name: Steven R. Keen
Title: Vice President and Treasurer
S-1 |
WACHOVIA BANK, NATIONAL ASSOCIATION , as a Lender, Swingline Lender, LC Issuer and as Administrative Agent
By: /s/ Hank Biedrzycki
Name: Hank Biedrzycki
Title: Director
S-2 |
JPMORGAN CHASE BANK, N.A. , as Syndication Agent and as a Lender
By: /s/ Helen D. Davis
Name: Helen D. Davis
Title: Vice President
S-3 |
BANK OF AMERICA, N.A. , as a Documentation Agent and as a Lender
By: /s/ James J. Teichman
Name: James J. Teichman
Title: Vice President
S-4 |
KEYBANK NATIONAL ASSOCIATION , as a Documentation Agent and as a Lender
By: /s/ Keven D. Smith
Name: Keven D. Smith
Title: Senior Vice President
S-5 |
US BANK NATIONAL ASSOCIATION
By: /s/ James W. Henken
Name: James W. Henken
Title: Vice President
S-6 |
WELLS FARGO BANK, N.A. , as a Documentation Agent and as a Lender
By: /s/ Mark W. Lliteras
Name: Mark W. Lliteras
Title: Executive Vice President
S-7 |
SUNTRUST BANK
Name: Yann Pirio
Title: Vice President
S-8 |
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., SEATTLE BRANCH
By: /s/ Tsuguyuki Umene
Name: Tsuguyuki Umene
Title: General Manager
S-9 |
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Efrain Soto
Name: Efrain Soto
Title: Vice President
S-10 |
THE BANK OF NEW YORK
By: /s/ Peter Keller
Name: Peter Keller
Title: Managing Director Energy Division
S-11 |
ROYAL BANK OF CANADA
By: /s/ David A. McCluskey
Name: David A. McCluskey
Title: Authorized Signatory
S-12 |
SCHEDULE I
PRICING SCHEDULE
|
A/A2 or above |
A-/A3 |
BBB+/Baa1 |
BBB/Baa2 |
BBB-/Baa3 |
<BBB-/Baa3 |
Applicable Margin |
LEVEL I STATUS |
LEVEL II STATUS |
LEVEL III STATUS |
LEVEL IV STATUS |
LEVEL V STATUS |
LEVEL VI STATUS |
Eurodollar Rate |
0.150% |
0.190% |
0.280% |
0.360% |
0.400% |
0.575% |
Floating Rate |
0% |
0% |
0% |
0% |
0% |
0.50% |
Applicable Fee Rates |
LEVEL I STATUS |
LEVEL II STATUS |
LEVEL III STATUS |
LEVEL IV STATUS |
LEVEL V STATUS |
LEVEL VI STATUS |
Facility Fee |
0.050% |
0.060% |
0.070% |
0.090% |
0.125% |
0.175% |
Utilization Fee |
0.050% |
0.050% |
0.050% |
0.050% |
0.100% |
0.100% |
For the purposes of this Schedule, the following terms have the following meanings, subject to the final paragraph of this Schedule:
Level I Status exists at any date if, on such date, the Borrowers Moodys Rating is A2 or better or the Borrowers S&P Rating is A or better.
Level II Status exists at any date if, on such date, (i) the Borrower has not qualified for Level I Status and (ii) the Borrowers Moodys Rating is A3 or better or the Borrowers S&P Rating is A- or better.
Level III Status exists at any date if, on such date, (i) the Borrower has not qualified for Level I Status or Level II Status and (ii) the Borrowers Moodys Rating is Baa1 or better or the Borrowers S&P Rating is BBB+ or better.
Level IV Status exists at any date if, on such date, (i) the Borrower has not qualified for Level I Status, Level II Status or Level III Status and (ii) the Borrowers Moodys Rating is Baa2 or better or the Borrowers S&P Rating is BBB or better.
Level V Status exists at any date if, on such date, (ii) the Borrower has not qualified for Level I Status, Level II Status, Level III Status or Level IV Status and (ii) the Borrowers Moodys Rating is Baa3 or better or the Borrowers S&P Rating is BBB- or better.
Level VI Status exists at any date if, on such date, the Borrower has not qualified for Level I Status, Level II Status, Level III Status, Level IV Status or Level V Status.
I-1 |
C-1023994v4 18445.00012
Moodys Rating means, at any time, the rating issued by Moodys Investors Service, Inc. and then in effect with respect to the Borrowers senior unsecured long-term debt securities without third-party credit enhancement.
S&P Rating means, at any time, the rating issued by Standard and Poors Rating Services, a division of The McGraw Hill Companies, Inc., and then in effect with respect to the Borrowers senior unsecured long-term debt securities without third-party credit enhancement.
Status means either Level I Status, Level II Status, Level III Status, Level IV Status, Level V Status or Level VI Status.
The Applicable Margin and applicable fee rates shall be determined in accordance with the foregoing table based on the Borrowers Status as determined from its then-current Moodys and S&P Ratings. The credit rating in effect on any date for the purposes of this Schedule is that in effect at the close of business on such date. If at any time the Borrower has no Moodys Rating or no S&P Rating, Level VI Status shall exist.
If the Borrower is split-rated and the ratings differential is one level, the higher rating will apply. If the Borrower is split-rated and the ratings differential is two levels or more, the intermediate rating at the midpoint will apply. If there is no midpoint, the higher of the two intermediate ratings will apply.
I-2 |
C-1023994v4 18445.00012
SCHEDULE II
COMMITMENTS
Lender |
Commitment |
Wachovia Bank, National Association |
$13,125,000 |
JPMorgan Chase Bank, N.A. |
$13,125,000 |
Bank of America, N.A. |
$11,750,000 |
Key Bank National Association |
$11,750,000 |
US Bank, National Association |
$11,750,000 |
Wells Fargo Bank, N.A. |
$11,750,000 |
Union Bank of California, N.A. |
$6,625,000 |
The Bank of Tokyo-Mitsubishi UFJ, Ltd., Seattle Branch |
$6,625,000 |
SunTrust Bank |
$4,500,000 |
Royal Bank of Canada |
$4,500,000 |
The Bank of New York |
$4,500,000 |
TOTAL |
$ 100,000,000 |
II-1 |
C-1023994v4 18445.00012
SCHEDULE 5.8
SUBSIDIARIES AND OTHER INVESTMENTS
(As of December 31, 2006)
Investment In |
Jurisdiction of Organization |
Owned By |
Amount of Investment |
Percent Ownership |
Idaho Power Company |
Idaho |
IDACORP, Inc. |
$ 1,024,876,394 |
100%
|
IDACORP Financial Services, Inc. |
Idaho |
IDACORP, Inc. |
$ 78,920,151 |
100%
|
IDACORP Energy, LP |
Delaware |
IDACORP, Inc. / IDACORP Energy Services Co.* |
$ 7,782,189 |
100% |
IDACOMM/Velocitus Inc.** |
Idaho |
IDACORP, Inc. |
$ 10,140,651 |
100% |
Ida-West Energy Company |
Idaho |
IDACORP, Inc. |
$ 23,930,742 |
100%
|
IDACORP Energy Services Co. |
Nevada |
IDACORP, Inc. |
* |
100% |
* IDACORP Energy, L.P. is owned by IDACORP as 1% general partner and IDACORP Energy Services Co. as 99% limited partner. IDACORP Energy Services Co. is a wholly-owned subsidiary of IDACORP.
** Sold on February 23, 2007.
Schedule 5.8
SCHEDULE 5.12
MATERIAL AGREEMENTS
Following is a list of existing dividend restrictions of the Borrower and Subsidiaries:
Idaho Power Company (IPC):
IPCs articles of incorporation contain restrictions on the payment of dividends on its common stock if preferred stock dividends are in arrears. IPC does not currently have preferred stock outstanding.
IDACORP Financial Services, Inc. (IFS) :
Dividend restrictions of IFS as provided in the loan documentation for IFSs investments in the following affordable housing limited partnerships:
Apollo Tax Credit Fund III, L.P.
Boston Capital Corporate Tax Credit Fund VI L.P.
Boston Capital Corporate Tax Credit Fund VII L.P.
Boston Capital Corporate Tax Credit Fund VIII L.P.
Boston Financial Institutional Tax Credits XI
Boston Financial Institutional Tax Credits XV
Columbia Housing Partners Corporate Tax Credit IV L.P.
Guilford Alabama Tax Credit Fund IX, Ltd.
Guilford Alabama Tax Credit Fund X, Ltd.
Guilford Corporate Tax Credit Fund XIII, Ltd.
Guilford Southeastern Corporate Tax Credit Fund VIII, Ltd.
Guilford Tax Credit Fund XI, Ltd.
McDonald Corporate Tax Credit Fund, L.P. 1996
National Corporate Tax Credit Fund IV L.P.
National Corporate Tax Credit Fund VI L.P.
National Corporate Tax Credit Fund VII L.P.
National Corporate Tax Credit Fund VIII L.P.
Summit Corporate Tax Credit Fund I, L.P.
Schedule 5.12
SCHEDULE 5.14
INDEBTEDNESS AND LIENS
Following is a list of existing liens of the Borrower and Subsidiaries:
Idaho Power Company:
Indebtedness Owed To : Bondholders pursuant to that certain Mortgage and Deed of Trust, dated as of October 1, 1937 between Idaho Power Company and Deutsche Bank Trust Company Americas (formerly Bankers Trust Company) and R.G. Page (Stanley Burg, successor individual trustee), as Trustee, as supplemented and amended.
Property Encumbered : All existing and after-acquired real and personal property of Idaho Power Company.
Amount of Indebtedness : The aggregate principal amount of Idaho Power Company First Mortgage Bonds outstanding as of December 31, 2006 was $951.1 million. The amount of First Mortgage Bonds issuable by Idaho Power Company, giving effect to the Forty-second Supplemental Indenture, is limited to a maximum of $1.5 billion, but subject to increase at any time and may be further limited by property, earnings and other provisions of the Mortgage.
IDACORP Financial Services, Inc.
Indebtedness Owed To : IFS has obtained borrowings from NDH Capital, Inc., Corporation Credit, Inc., ReliaStar Life Insurance Co., Wells Fargo Brokerage Services, LLC and several of the affordable housing partnerships referenced below.
Property Encumbered : All or a portion of IFSs right, title and interest as a limited partner in the following affordable housing limited partnerships:
Apollo Tax Credit Fund III L.P.
Boston Capital Corporate Tax Credit Fund VI L.P.
Boston Capital Corporate Tax Credit Fund VII L.P.
Boston Capital Corporate Tax Credit Fund VIII L.P.
Boston Capital Corporate Tax Credit Fund XV L.P.
Boston Financial Institutional Tax Credits XI
Boston Financial Institutional Tax Credit Fund XII
Boston Financial Institutional Tax Credits XV
Columbia Housing Partners Corporate Tax Credit IV L.P.
Guilford Southeastern Corporate Tax Credit Fund VIII, Ltd.
Schedule 5.14
Guilford Alabama Tax Credit Fund IX, Ltd.
Guilford Alabama Tax Credit Fund X, Ltd
Guilford Tax Credit Fund XI, Ltd.
Guilford Alabama Tax Credit Fund XVIII L.P.
McDonald Corporate Tax Credit Fund, L.P. 1996
National Corporate Tax Credit Fund IV
National Corporate Tax Credit Fund VI
National Corporate Tax Credit Fund VII
National Corporate Tax Credit Fund VIII
National Corporate Tax Credit Fund X
Oak Park L.P.
River Plaza L.P.
Summit Corporate Tax Credit Fund I, L.P.
USA Institutional Tax Credit Fund XIV L.P.
USA Institutional Tax Credit Fund VII L.P.
Amount of Indebtedness : $32,058,831 aggregate principal amount outstanding as of February 28, 2007.
Schedule 5.14
SCHEDULE 13.1
NOTICE ADDRESSES
Address for notices for Borrower:
IDACORP, Inc.
1221 West Idaho Street
P.O. Box 70
Boise, Idaho 83707
Attention: Steven R. Keen, Vice President and Treasurer
Telephone: 208-388-2600
Fax: 208-388-2879
Email: skeen@idahopower.com
Address for notices as Administrative Agent:
Wachovia Bank, National Association
201 S. College St., CP−8
Charlotte, NC 28288−0680
Attention: Syndication Agency Services
Telephone: 704-383-3721
Fax: 704-383-0288
Address for notices as LC Issuer, Swingline Lender and Credit Contact:
Wachovia Bank, National Association
301 South College St., 6th Floor
Charlotte, NC 28288
Attention: Hank Biedrzycki, Director
Telephone: 704-374-4914
Fax: 704-383-6647
Email: hank.biedrzycki@wachovia.com
Schedule 13.1
EXHIBIT A
FORM OF OPINION
April 25, 2007
The Administrative Agent, the LC Issuers
and the Lenders that are
are parties to the Credit
Agreement described below.
Gentlemen/Ladies:
I am counsel for IDACORP, Inc., an Idaho corporation (the Borrower ), and have represented the Borrower in connection with its execution and delivery of an Amended and Restated Credit Agreement dated as of April 25, 2007 (the Credit Agreement ) among the Borrower, the Lenders named therein, and Wachovia Bank, National Association, as Administrative Agent and as LC Issuer, and providing for Credit Extensions in an aggregate principal amount not exceeding $100,000,000 at any one time outstanding. All capitalized terms used in this opinion and not otherwise defined herein shall have the meanings attributed to them in the Credit Agreement.
I have examined the Borrowers Articles of Incorporation and By-laws, the Loan Documents and such other matters of fact and law which I deem necessary in order to render this opinion. Based upon the foregoing, it is our opinion that:
1. Each of the Borrower and its Subsidiaries is a corporation, partnership or limited liability company duly and properly incorporated or organized, as the case may be, validly existing and (to the extent such concept applies to such entity) in good standing under the laws of its jurisdiction of incorporation or organization and has all requisite authority to conduct its business in each jurisdiction in which its business is conducted.
2. The execution and delivery by the Borrower of the Loan Documents and the performance by the Borrower of its obligations thereunder have been duly authorized by proper corporate proceedings on the part of the Borrower and will not:
(a) require any consent of the Borrowers shareholders or members (other than any such consent as has already been given and remains in full force and effect);
(b) violate (i) any law, rule, regulation, order, writ, judgment, injunction, decree or award binding on the Borrower or any of its Subsidiaries or (ii) the Borrowers or any Subsidiarys articles or certificate of incorporation, partnership agreement, certificate of partnership, articles or certificate of organization, bylaws, or operating or other management agreement, as the case may be, or (iii) to the best of my knowledge, the provisions of any indenture, instrument or agreement to which the Borrower or any of its Subsidiaries is a party or is subject, or by which it, or its Property, is bound, or conflict with or constitute a default thereunder; or
(c) result in, or require, the creation or imposition of any Lien in, of or on the Property of the Borrower or a Subsidiary pursuant to the terms of any indenture, instrument or agreement binding upon the Borrower or any of its Subsidiaries.
3. The Loan Documents have been duly executed and delivered by the Borrower.
4. Except as set forth in the financial statements referred to in Section 5.4 of the Credit Agreement, there is no litigation, arbitration, governmental investigation, proceeding or inquiry pending or, to the best of our knowledge after due inquiry, threatened against the Borrower or any of its Subsidiaries which, if adversely determined, could reasonably be expected to have a Material Adverse Effect.
5. No order, consent, adjudication, approval, license, authorization, or validation of, or filing, recording or registration with, or exemption by, or other action in respect of any governmental or public body or authority, or any subdivision thereof, which has not been obtained by the Borrower or any of its Subsidiaries, is required to be obtained by the Borrower or any of its Subsidiaries in connection with the execution and delivery of the Loan Documents or the obligations incurred thereunder, the borrowings under the Credit Agreement, the payment and performance by the Borrower of the Obligations, or the legality, validity, binding effect or enforceability of any of the Loan Documents or the obligations incurred thereunder; provided, however, that with respect to the payment and performance by the IPC on or after IPC's senior-secured bond ratings drops below investment grade (BBB- or higher by Standard & Poor's Rating Service and Baa3 by Moody's Investors' Service, Inc., a "Downgrade"), and the legality. validity, binding effect or enforceability of any of the Loan Documents on or after a Downgrade, this opinion is subject to the qualifications that (i) Order No. 30294 ("Idaho Order") of the Idaho Public Utilities Commission ("Idaho PUC") issued April 11, 2007 and Order No. 07-151 of the Public Utility Commission of Oregon ("Oregon PUC") issued April 16, 2007 each provide that the authority of IPC under such order exists, unless renewed or extended, only until the occurrence of a Downgrade; (ii) the Oregon statutes permit the issuance or renewal of indebtedness maturing not more than one year after the date of such issue or renewal without the approval of the Oregon PUC; and (iii) the Idaho Order provides that IPC's authority will not terminate but will continue for a period of 364 days from any Downgrade, during which time IPC is authorized to file a supplemental application with the Idaho PUC requesting continuation of its original authority to borrow under the Idaho Order notwithstanding the Downgrade. Notwithstanding the foregoing, any loss of regulatory authority in the States of Idaho and Oregon resulting from a Downgrade, would not affect the legality, validity, binding effect or enforceability of any of the Loan Documents or the Obligations incurred thereunder prior to the Downgrade. 6. Assuming the Borrower will comply with the provisions of the Credit Agreement relating to the use of proceeds and the percentage of its assets consisting of margin stock and assuming that none of the Lenders is a broker or dealer within the meaning of Regulation T of the Board of Governors of the Federal Reserve System, the execution and delivery of the Loan Documents by the Borrower and the making of Loans under the Credit Agreement will not violate Regulation T, U or X of the Board of Governors of the Federal Reserve System.
With the exception of paragraph 5, the opinions expressed above are limited to the corporate and other laws of the State of Idaho and the federal laws of the United States of America. This opinion may be relied upon by the Administrative Agent, the LC Issuer, the Lenders and their participants, assignees and other transferees.
Very truly yours,
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
To: The
Lenders parties to the
Credit Agreement Described Below
This Compliance Certificate is furnished pursuant to that certain Amended and Restated Credit Agreement dated as of April 25, 2007 (as amended or otherwise modified from time to time, the Credit Agreement ) among IDACORP, Inc. (the Borrower ), the lenders party thereto and Wachovia Bank, National Association, as Administrative Agent and as LC Issuer. Unless otherwise defined herein, capitalized terms used in this Compliance Certificate (and the attached schedule) have the meanings ascribed thereto in the Credit Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected __________________ of the Borrower;
2. I have reviewed the terms of the Credit Agreement and I have made, or have caused to be made under my supervision, a reasonable review of the transactions and conditions of the Borrower and its Subsidiaries during the accounting period covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I have no knowledge of, the existence of any condition or event which constitutes a Default or Unmatured Default during or at the end of the accounting period covered by the attached financial statements or as of the date of this Certificate, except as set forth below; and
4. Schedule I attached hereto sets forth financial data and computations evidencing the Borrowers compliance with Section 6.12 of the Credit Agreement, all of which data and computations are true, complete and correct.
Described below are the exceptions, if any, to paragraph 3 by listing, in detail, the nature of the condition or event, the period during which it has existed and the action which the Borrower has taken, is taking, or proposes to take with respect to each such condition or event:
The foregoing certifications, together with the computations set forth in Schedule I hereto and the financial statements delivered with this Certificate in support hereof, are made and delivered this _____day of__________, _____ .
IDACORP, INC.
By: ___________________________
Name: ___________________________
Title: ___________________________
SCHEDULE
I
TO COMPLIANCE CERTIFICATE
LEVERAGE
RATIO
as of _______, ____
(Section 6.12 of the Credit Agreement)
(1) Consolidated Indebtedness [1] : |
|
|
(a) Obligations for borrowed money |
$___________ |
|
(b) Obligations representing the deferred purchase price of Property or services (other than accounts payable arising in the ordinary course of such Persons business payable on terms customary in the trade) |
$___________ |
|
(c) Obligations, whether or not assumed, secured by Liens or payable out of the proceeds or production from Property now or hereafter owned or acquired by such Person |
$___________ |
|
(d) Obligations which are evidenced by notes, acceptances, or other instruments |
$___________ |
|
(e) Obligations of such Person to purchase securities or other Property arising out of or in connection with the sale of the same or substantially similar securities or Property |
$___________ |
|
(f) Capitalized Lease Obligations |
$___________ |
|
(g) Contingent Obligations |
$___________ |
|
(h) Obligations in respect of Letters of Credit |
$___________ |
|
(i) Rate Management Obligations |
$___________ |
|
(j) Preferred stock which is required by the terms thereof to be redeemed, or for which mandatory sinking fund payments are due, by a fixed date |
$___________ |
|
(k) Off-Balance Sheet Liabilities |
$___________ |
|
(l) Any other obligation for borrowed money or other financial accommodation which in accordance with Agreement Accounting Principles would be shown as a liability on the consolidated balance sheet of such Person |
$___________ |
|
(m) Amounts outstanding under a Permitted Receivables Securitization |
$___________ |
|
(n) Total Consolidated Indebtedness |
$___________ |
|
Add Lines 1(a) through 1(m) |
|
$___________ |
(2) Consolidated Total Capitalization: |
|
|
(a) Consolidated Indebtedness (from Line 1(n) above) |
$___________ |
|
(b) Consolidated Net Worth |
$___________ |
|
(c) Aggregate outstanding amount of Hybrid Securities |
$___________ |
|
(d) Total Capitalization |
$___________ |
|
Add Lines 2(a) through 2(c) |
|
$___________ |
(3) Leverage Ratio: |
|
|
Divide Line 1(n) by Line 2(d) |
|
____________ |
(4) Maximum Leverage Ratio permitted by Section 6.12 of the Credit Agreement |
|
0.65:1.0 |
EXHIBIT C
FORM OF ASSIGNMENT AGREEMENT
This Assignment Agreement (this Assignment Agreement ) between _______________ ____________________ (the Assignor ) and ________________ (the Assignee ) is dated as of _______________, _____. The parties hereto agree as follows:
1. PRELIMINARY STATEMENT . The Assignor is a party to a Credit Agreement (as amended or otherwise modified from time to time, the Credit Agreement ) described in Item 1 of Schedule 1 attached hereto ( Schedule 1 ). Capitalized terms used herein and not otherwise defined herein shall have the meanings attributed to them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION . The Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases and assumes from the Assignor, an interest in and to the Assignors rights and obligations under the Credit Agreement and the other Loan Documents, such that after giving effect to such assignment the Assignee shall have purchased pursuant to this Assignment Agreement the percentage interest specified in Item 3 of Schedule 1 of all outstanding rights and obligations under the Credit Agreement and the other Loan Documents relating to the facilities listed in Item 3 of Schedule 1. The aggregate Commitment (or Outstanding Credit Exposure, if the applicable Commitment has been terminated) purchased by the Assignee hereunder is set forth in Item 4 of Schedule 1.
3. EFFECTIVE DATE . The effective date of this Assignment Agreement (the Effective Date ) shall be the later of the date specified in Item 5 of Schedule 1 or two Business Days (or such shorter period agreed to by the Agent) after this Assignment Agreement, together with any consents required under the Credit Agreement, are delivered to the Agent. In no event will the Effective Date occur if the payments required to be made by the Assignee to the Assignor on the Effective Date arc not made on the proposed Effective Date.
4. PAYMENT OBLIGATIONS . In consideration for the sale and assignment of Outstanding Credit Exposure hereunder, the Assignee shall pay the Assignor, on the Effective Date, the amount agreed to by the Assignor and the Assignee. On and after the Effective Date, the Assignee shall be entitled to receive from the Agent all payments of principal, Reimbursement Obligations, interest and fees with respect to the interest assigned hereby. The Assignee will promptly remit to the Assignor any interest on Outstanding Credit Exposure and fees received from the Agent which relate to the portion of the Commitment or Outstanding Credit Exposure assigned to the Assignee hereunder for periods prior to the Effective Date and not previously paid by the Assignee to the Assignor. In the event that either party hereto receives any payment to which the other party hereto is entitled under this Assignment Agreement, then the party receiving such amount shall promptly remit it to the other party hereto.
5. RECORDATION FEE . The Assignor and Assignee each agree to pay one-half of the recordation fee required to be paid to the Agent in connection with this Assignment Agreement unless otherwise specified in Item 6 of Schedule 1.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNORS LIABILITY . The Assignor represents and warrants that (i) it is the legal and beneficial owner of the interest being assigned by it hereunder, (ii) such interest is free and clear of any adverse claim created by the Assignor and (iii) the execution and delivery of this Assignment Agreement by the Assignor is duly authorized. It is understood and agreed that the assignment and assumption hereunder are made without recourse to the Assignor and that the Assignor makes no other representation or warranty of any kind to the Assignee. Neither the Assignor nor any of its officers, directors, employees, agents or attorneys shall be responsible for (i) the due execution, legality, validity, enforceability, genuineness, sufficiency or collectability of any Loan Document, including documents granting the Assignor and the other Lenders a security interest in assets of the Borrower or any Guarantor, (ii) any representation, warranty or statement made in or in connection with any of the Loan Documents, (iii) the financial condition or creditworthiness of the Borrower or any guarantor, (iv) the performance of or compliance with any of the terms or provisions of any of the Loan Documents, (v) inspecting any of the property, books or records of the Borrower, (vi) the validity, enforceability, perfection, priority, condition, value or sufficiency of any collateral securing or purporting to secure the Loans or (vii) any mistake, error of judgment, or action taken or omitted to be taken in connection with the Loans or the Loan Documents.
7. REPRESENTATIONS AND UNDERTAKINGS OF THE ASSIGNEE . The Assignee (i) confirms that it has received a copy of the Credit Agreement, together with copies of the financial statements requested by the Assignee and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment Agreement, (ii) agrees that it will, independently and without reliance upon the Agent, the Assignor or any other Lender and based on such documents and information at it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, (iii) appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under the Loan Documents as are delegated to the Agent by the terms thereof, together with such powers as are reasonably incidental thereto, (iv) confirms that the execution and delivery of this Assignment Agreement by the Assignee is duly authorized, (v) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender, (vi) agrees that its payment instructions and notice instructions are as set forth in the attachment to Schedule 1, (vii) confirms that none of the funds, monies, assets or other consideration being used to make the purchase and assumption hereunder are plan assets as defined under ERISA and that its rights, benefits and interests in and under the Loan Documents will not be plan assets under ERISA, (viii) agrees to indemnify and hold the Assignor harmless against all losses, costs and expenses (including reasonable attorneys fees) and liabilities incurred by the Assignor in connection with or arising in any manner from the Assignees non-performance of the obligations assumed under this Assignment Agreement, and (ix) if applicable, attaches the forms prescribed by the Internal Revenue Service of the United States certifying that the Assignee is entitled to receive payments under the Loan Documents without deduction or withholding of any United States federal income taxes.
8. GOVERNING LAW . This Assignment Agreement shall be governed by the internal law, and not the law of conflicts, of the State of New York.
9. NOTICES . Notices shall be given under this Assignment Agreement in the manner set forth in the Credit Agreement. For the purpose hereof, the addresses of the parties hereto (until notice of a change is delivered) shall be the address set forth in the attachment to Schedule 1.
10. COUNTERPARTS; DELIVERY BY FACSIMILE . This Assignment Agreement may be executed in counterparts. Transmission by facsimile of an executed counterpart of this Assignment Agreement shall be deemed to constitute due and sufficient delivery of such counterpart and such facsimile shall be deemed to be an original counterpart of this Assignment Agreement.
IN WITNESS WHEREOF, the duly authorized officers of the parties hereto have executed this Assignment Agreement by executing Schedule 1 hereto as of the date first above written.
SCHEDULE 1
to Assignment Agreement
1. Description and Date of Credit Agreement: Amended and Restated Credit Agreement dated as of April 25, 2007 among IDACORP, Inc., the Lenders party thereto and Wachovia Bank, National Association, as LC Issuer and as Administrative Agent. |
|||||
2. Date of Assignment Agreement: ___________________. |
|||||
3. Amounts (As of Date of Item 2 above): |
|||||
|
|
Facility
|
Facility
|
Facility 3* |
Facility 4* |
|
a. Assignees percentage of each Facility purchased under the Assignment Agreement ** |
______% |
______% |
______% |
______% |
|
b. Amount of each Facility purchased under the Assignment Agreement*** |
$______ |
$______ |
$______ |
$______ |
4. Assignees Commitment (or Outstanding Credit Exposure with respect to terminated Commitments) purchased hereunder: |
|
|
|
||
5. Proposed Effective Date: |
_______________ |
|
|
||
6. Non-standard Recordation Fee Arrangement |
N/A***
|
Accepted and Agreed: [NAME OF ASSIGNOR] |
[NAME OF ASSIGNEE] |
By:
|
By:
|
ACCEPTED AND CONSENTED TO BY [NAME OF BORROWER]**** |
ACCEPTED AND CONSENTED TO BY [NAME OF AGENT]**** |
By: |
By: |
Title: |
Title: |
* Insert specific facility names per Credit Agreement |
|
** Percentage taken to 10 decimal places |
|
*** If fee is split 50-50, pick N/A as option |
|
**** Delete if not required by Credit Agreement |
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
ADMINISTRATIVE INFORMATION SHEET
Attach
Assignors Administrative Information Sheet, which must
include notice addresses for the Assignor and the Assignee
(Sample form shown below)
ASSIGNOR INFORMATION
Contact :
Payment Information : |
|
||
Name & ABA # of Destination Bank: |
|
||
Account Name & Number for Wire Transfer: |
|
||
Other Instructions:
|
|||
Address for Notices for Assignee : |
|||
WACHOVIA INFORMATION |
|||
Assignee will be called promptly upon receipt of the signed agreement. |
|||
Initial Funding Contact : |
Subsequent Operations Contact : |
||
Name: |
Name: |
||
Telephone No.: |
Telephone No.: |
||
Fax No.: |
Fax No.: |
||
Initial Funding Standards : |
|
||
Libor Fund 2 days after rates are set. |
|
||
Wachovia Wire Instructions : |
Wachovia Bank, National Association |
||
|
Charlotte, North Carolina |
||
|
ABA Routing No. 053000219 |
||
|
Account Number: |
||
|
Account Name: IDACORP, Inc. |
||
|
Attention: Syndication Agency Services |
||
|
Telephone: (704) ___-_____ |
||
|
Telecopy: (704) ___-_____ |
||
|
Reference: IDACORP, Inc. |
||
|
|
||
Address for Notices for Wachovia : |
Wachovia Bank, National Association |
||
|
One Wachovia Center, 5th Floor |
||
|
301 South College Street |
||
|
Charlotte, North Carolina 28288-0760 |
||
|
Attention: |
||
|
Telephone: (704) ___-______ |
||
|
Telecopy: (704) ___-______ |
||
EXHIBIT D
FORM OF ACCOUNT DESIGNATION LETTER
April 25, 2007
Wachovia Bank, National Association, as Agent
Charlotte Plaza Building, CP-8
201 South College Street
Charlotte, North Carolina 28288-0680
Attention: Syndication Agency Services
Ladies and Gentlemen:
Reference is made to the Amended and Restated Credit Agreement, dated as of April 25, 2007, among the undersigned, IDACORP, Inc., as Borrower, the banks and other financial institutions parties thereto from time to time, and Wachovia Bank, National Association, as Administrative Agent (as amended, modified or supplemented from time to time, the Credit Agreement ). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement.
The undersigned hereby authorizes and directs the Administrative Agent to disburse any and all proceeds of the Loans under the Credit Agreement, as and when made from time to time, to the following accounts:
Bank Name:
ABA Routing No.:
Account No.:
Account Name:
Very truly yours,
IDACORP, INC.
By:
Name:
Title:
EXHIBIT E
FORM
OF
REVOLVING NOTE
$ __________ _______________,
2007
Charlotte,
North Carolina
FOR VALUE RECEIVED, IDACORP, INC ., an Idaho corporation (the Borrower ), hereby promises to pay to the order of
________________________________ (the Lender ), at the offices of Wachovia Bank, National Association (the Administrative Agent ) located at One Wachovia Center, 301 South College Street, Charlotte, North Carolina (or at such other place or places as the Administrative Agent may designate), at the times and in the manner provided in the Amended and Restated Credit Agreement, dated as of April 25, 2007 (as amended, modified, restated or supplemented from time to time, the Credit Agreement ), among the Borrower, the Lenders from time to time parties thereto, and Wachovia Bank, National Association, as Administrative Agent, the principal sum of
_____________________
DOLLARS
($_________), or such lesser amount as
may constitute the unpaid principal amount of the Revolving Loans made by the
Lender, under the terms and conditions of this promissory note (this
Revolving
Note
) and the Credit Agreement. The defined terms in the Credit Agreement
are used herein with the same meaning. The Borrower also promises to pay interest
on the aggregate unpaid principal amount of this Revolving Note at the rates
applicable thereto from time to time as provided in the Credit Agreement.
This Revolving Note is one of a series of Revolving Notes referred to in the Credit Agreement and is issued to evidence the Revolving Loans made by the Lender pursuant to the Credit Agreement. All of the terms, conditions and covenants of the Credit Agreement are expressly made a part of this Revolving Note by reference in the same manner and with the same effect as if set forth herein at length, and any holder of this Revolving Note is entitled to the benefits of and remedies provided in the Credit Agreement and the other Credit Documents. Reference is made to the Credit Agreement for provisions relating to the interest rate, maturity, payment, prepayment and acceleration of this Revolving Note.
In the event of an acceleration of the maturity of this Revolving Note, this Revolving Note shall become immediately due and payable, without presentation, demand, protest or notice of any kind, all of which are hereby waived by the Borrower.
In the event this Revolving Note is not paid when due at any stated or accelerated maturity, the Borrower agrees to pay, in addition to the principal and interest, all costs of collection, including reasonable attorneys fees.
This
Revolving Note shall be governed by and construed in accordance with the
internal laws of the State of New York (including Sections 5-1401 and 5-1402 of
the New York General
Obligations Law, but excluding all other choice of law and conflicts of law
rules). The Borrower hereby submits to the nonexclusive jurisdiction and venue
of the federal and state courts located in Mecklenburg County, North Carolina,
although the Lender shall not be limited to bringing an action in such courts.
IN WITNESS WHEREOF , the Borrower has caused this Revolving Note to be executed by its duly authorized corporate officer as of the day and year first above written.
IDACORP, INC.
By:
Title:
EXHIBIT F
FORM
OF
SWINGLINE NOTE
$____________ ____________,
2007
Charlotte,
North Carolina
FOR VALUE RECEIVED, IDACORP, INC ., an Idaho corporation (the Borrower ), hereby promises to pay to the order of
WACHOVIA BANK, NATIONAL ASSOCIATION (the Swingline Lender ), at the offices of Wachovia Bank, National Association (the Administrative Agent ) located at One Wachovia Center, 301 South College Street, Charlotte, North Carolina (or at such other place or places as the Administrative Agent may designate), at the times and in the manner provided in the Amended and Restated Credit Agreement, dated as of April 25, 2007 (as amended, modified, restated or supplemented from time to time, the Credit Agreement ), among the Borrower, the Lenders from time to time parties thereto, and Wachovia Bank, National Association, as Administrative Agent, the principal sum of
________________________ DOLLARS ($___________), or such lesser amount as may constitute the unpaid principal amount of the Swingline Loans made by the Swingline Lender, under the terms and conditions of this promissory note (this Swingline Note ) and the Credit Agreement. The defined terms in the Credit Agreement are used herein with the same meaning. The Borrower also promises to pay interest on the aggregate unpaid principal amount of this Swingline Note at the rates applicable thereto from time to time as provided in the Credit Agreement.
This Swingline Note is issued to evidence the Swingline Loans made by the Swingline Lender pursuant to the Credit Agreement. All of the terms, conditions and covenants of the Credit Agreement are expressly made a part of this Swingline Note by reference in the same manner and with the same effect as if set forth herein at length, and any holder of this Swingline Note is entitled to the benefits of and remedies provided in the Credit Agreement and the other Credit Documents. Reference is made to the Credit Agreement for provisions relating to the interest rate, maturity, payment, prepayment and acceleration of this Swingline Note.
In the event of an acceleration of the maturity of this Swingline Note, this Swingline Note shall become immediately due and payable, without presentation, demand, protest or notice of any kind, all of which are hereby waived by the Borrower.
In the event this Swingline Note is not paid when due at any stated or accelerated maturity, the Borrower agrees to pay, in addition to the principal and interest, all costs of collection, including reasonable attorneys fees.
This
Swingline Note shall be governed by and construed in accordance with the
internal laws of the State of New York (including Sections 5-1401 and 5-1402 of
the New York General Obligations Law, but excluding all other choice of law and
conflicts of law rules). The Borrower
hereby submits to the nonexclusive jurisdiction and venue of the federal and
state courts located in Mecklenburg County, North Carolina, although the
Swingline Lender shall not be limited to bringing an action in such courts.
IN WITNESS WHEREOF , the Borrower has caused this Swingline Note to be executed by its duly authorized corporate officer as of the day and year first above written.
IDACORP, INC.
By:
Title:
EXHIBIT G
FORM OF
JOINDER AGREEMENT
This Joinder Agreement (this Joinder Agreement ) is made this ___ day of _________, 20___, by ____________________________, a ____________________ (the Assuming Lender ). Reference is made to the Amended and Restated Credit Agreement, dated as of April 25, 2007 (as amended, modified or supplemented from time to time, the Credit Agreement ), among IDACORP, Inc. (the Borrower ), the Lenders party thereto from time to time parties thereto (the Lenders ), and Wachovia Bank, National Association, as LC Issuer and administrative agent for the Lenders (the Administrative Agent ). Terms defined in the Credit Agreement are, unless otherwise defined herein or the context otherwise requires, used herein as defined therein.
The Assuming Lender hereby agrees as follows:
1. Joinder Agreement . Subject to the terms and conditions hereof and of the Credit Agreement, the Assuming Lender hereby agrees to become a Lender under the Credit Agreement with a Commitment of ________ Dollars ($_______). After giving effect to this Joinder Agreement and the adjustments required under Section 2.20(c) of the Credit Agreement, the Assuming Lenders Commitment, the aggregate outstanding principal amounts of the Loans owing to the Assuming Lender and the Assuming Lenders Pro Rata Share percentage of the aggregate principal amount of all Loans plus all LC Obligations will be as set forth in Item 4 of Annex I attached hereto.
2. Assuming Lender Representations . The Assuming Lender (i) confirms that it has received a copy of the Credit Agreement, together with copies of the financial statements of the Borrower delivered to the Administrative Agent pursuant to the Credit Agreement and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Joinder Agreement, (ii) agrees that it will, independently and without reliance upon the Administrative Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement, (iii) appoints and authorizes the Administrative Agent to take such action as Administrative Agent on its behalf under the Credit Documents, and to exercise such powers and to perform such duties, as are specifically delegated to or required of the Administrative Agent by the terms thereof, together with such other powers as are reasonably incidental thereto, (iv) agrees that it will perform in accordance with their terms all of the obligations that by the terms of the Credit Agreement are required to be performed by it as a Lender, and (vi) specifies as its address for payments and notices the office set forth beneath its name on its signature page hereto. [2]
3. Effective Date . Following the execution of this Joinder Agreement by the Assuming Lender, an executed original hereof, together with all attachments hereto, shall be delivered to the Administrative Agent. The effective date of this Joinder Agreement (the Effective Date ) shall be the date of execution hereof by the Borrower, the Administrative Agent and the Assuming Lender. As of the Effective Date, the Assuming Lender shall be a party to the Credit Agreement and, to the extent provided in this Joinder Agreement, shall have the rights and obligations of a Lender thereunder and under the other Loan Documents.
4. Governing Law . This Joinder Agreement shall be governed by, and construed in accordance with, the law of the State of New York (including Sections 5-1401 and 5-1402 of the New York General Obligations Law, but excluding all other choice of law and conflicts of law rules).
5. Entire Agreement . This Joinder Agreement, together with the Credit Agreement and the other Loan Documents, embody the entire agreement and understanding between the parties hereto and supersede all prior agreements and understandings of the parties, verbal or written, relating to the subject matter hereof.
6. Successors and Assigns . This Joinder Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their successors and assigns.
7. Counterparts . This Joinder Agreement may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which, when so executed and delivered, shall be an original, but all of which shall together constitute one and the same instrument.
[signatures on following page]
IN WITNESS WHEREOF , the parties have caused this Joinder Agreement to be executed by their duly authorized officers as of the date first above written.
[INSERT NAME
OF ASSUMING
LENDER]
By:
Name:
Title:
Accepted this __ day of
____________, _____:
WACHOVIA
BANK, NATIONAL ASSOCIATION
,
as Administrative Agent
By:
Name:
Title:
Consented and agreed to:
IDACORP, INC.
By:
Name:
Title:
ANNEX I
1. Borrower: IDACORP, Inc.
2. Name and Date of Credit Agreement:
Amended and Restated Credit Agreement dated as of April 25, 2007 among IDACORP, Inc., the Lenders party thereto and Wachovia Bank, National Association, as LC Issuer and as Administrative Agent.
3. Date of Joinder Agreement: __________, 20___.
4. Amounts (as of date of adjustment pursuant to Section 2.20(c) of the Credit Agreement):
|
|
|
Percentage of Aggregate Commitment / Loans / LC Obligations [3] |
|
(a) Commitment / Loans |
$___________ |
$___________ |
_________% |
|
5. Addresses for Payments and Notices:
Assuming Lender: |
For
Funding/Notices:
|
|
For
Payments
:
|
6. Effective Date: ___________, 20___ (in accordance with Section 3).
[1] The aggregate outstanding Indebtedness evidenced by Hybrid Securities shall be excluded to the extent that the total book value of such Hybrid Securities does not exceed 15% of Consolidated Total Capitalization as of such time.
[2] If the Assuming Lender is a Non-U.S. Lender, add the following: and (vii) has delivered the forms required by Section 3.5(d) of the Credit Agreement.
[3]
Set forth, to at least 9 decimals, as a percentage of the
Commitment / Loans of all
Lenders thereunder.
Exhibit 10.42
Execution Version
Syndicated CUSIP NO. 45139CAC6
AMENDED AND RESTATED
CREDIT AGREEMENT
among
IDAHO POWER COMPANY,
as Borrower,
THE LENDERS NAMED HEREIN,
Wachovia Bank, National Association,
as Administrative Agent, Swingline Lender and LC Issuer
JPMORGAN CHASE BANK, N.A.,
as Syndication Agent,
and
KEYBANK NATIONAL ASSOCIATION
and
US BANK NATIONAL ASSOCIATION
and
BANK OF AMERICA, N.A.
as Documentation Agents
$300,000,000 Senior Credit Facilities
WACHOVIA CAPITAL MARKETS, LLC
and
J.P. MORGAN SECURITIES INC.
as
Joint Lead Arrangers and Joint Book Runners
Dated as of April 25, 2007
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS
1.1...... Definitions........................................................................................................................... 1
1.2...... Other Interpretive Provisions............................................................................................. 15
ARTICLE 2
THE CREDITS
2.1...... Commitments..................................................................................................................... 15
2.2...... Required Payments; Termination....................................................................................... 16
2.3...... Types of Advances; Minimum Amount of Each Advance............................................... 16
2.4...... Fees.................................................................................................................................... 16
2.5...... Reduction or Termination of Aggregate Commitment...................................................... 17
2.6...... Optional Principal Payments.............................................................................................. 17
2.7...... Requesting Advances........................................................................................................ 18
2.8...... Conversion and Continuation of Outstanding Advances................................................. 20
2.9...... Changes in Interest Rate, etc............................................................................................. 20
2.10.... Rates Applicable After Default......................................................................................... 21
2.11.... Method of Payment........................................................................................................... 21
2.12.... Noteless Agreement; Evidence of Indebtedness............................................................... 21
2.13.... Telephonic Notices............................................................................................................ 22
2.14.... Interest Payment Dates; Interest and Fee Basis................................................................ 22
2.15.... Notification of Advances, Interest Rates, Prepayments and Commitment Reductions... 23
2.16.... Lending Installations......................................................................................................... 23
2.17.... Non-Receipt of Funds by the Administrative Agent........................................................ 24
2.18.... Facility LCs....................................................................................................................... 24
2.19.... Replacement of Lender..................................................................................................... 28
2.20.... Increase in Commitments.................................................................................................. 29
2.21.... Extension of Facility Termination Date............................................................................. 30
ARTICLE 3
YIELD PROTECTION; TAXES
3.1...... Yield Protection................................................................................................................. 31
3.2...... Changes in Capital Adequacy Regulations....................................................................... 32
3.3...... Availability of Types of Advances.................................................................................... 33
3.4...... Funding Indemnification................................................................................................... 33
3.5...... Taxes.................................................................................................................................. 33
i |
3.6...... Alternate Lending Installation; Lender Statements; Survival of Indemnity..................... 36
ARTICLE 4
CONDITIONS PRECEDENT
4.1...... Initial Credit Extension..................................................................................................... 37
4.2...... Each Credit Extension....................................................................................................... 37
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
5.1...... Existence and Standing..................................................................................................... 38
5.2...... Authorization and Validity................................................................................................ 38
5.3...... No Conflict; Government Consent.................................................................................... 38
5.4...... Financial Statements.......................................................................................................... 39
5.5...... Material Adverse Change.................................................................................................. 39
5.6...... Taxes.................................................................................................................................. 39
5.7...... Litigation and Contingent Obligations.............................................................................. 40
5.8...... Subsidiaries........................................................................................................................ 40
5.9...... ERISA............................................................................................................................... 40
5.10.... Accuracy of Information................................................................................................... 40
5.11.... Regulation U...................................................................................................................... 40
5.12.... Material Agreements.......................................................................................................... 40
5.13.... Compliance With Laws..................................................................................................... 41
5.14.... Ownership of Properties.................................................................................................... 41
5.15.... Plan Assets; Prohibited Transactions................................................................................. 41
5.16.... Environmental Matters...................................................................................................... 41
5.17.... Investment Company Act.................................................................................................. 41
5.18.... OFAC; PATRIOT Act...................................................................................................... 42
ARTICLE 6
COVENANTS
6.1...... Financial Reporting............................................................................................................ 42
6.2...... Use of Proceeds................................................................................................................. 43
6.3...... Notice of Default, etc........................................................................................................ 44
6.4...... Conduct of Business.......................................................................................................... 44
6.5...... Taxes.................................................................................................................................. 44
6.6...... Insurance............................................................................................................................ 44
6.7...... Compliance with Laws...................................................................................................... 44
6.8...... Maintenance of Properties................................................................................................. 44
6.9...... Inspection.......................................................................................................................... 45
6.10.... Merger and Sale of Assets................................................................................................. 45
6.11.... Liens.................................................................................................................................. 45
6.12.... Leverage Ratio................................................................................................................... 47
ii |
6.13.... Investments and Acquisitions............................................................................................ 47
6.14.... Subsidiary Dividend Restrictions...................................................................................... 47
6.15.... Affiliates............................................................................................................................ 48
6.16.... OFAC, PATRIOT Act Compliance.................................................................................. 48
ARTICLE 7
DEFAULTS
ARTICLE 8
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1...... Acceleration; Facility LC Collateral Account................................................................... 50
8.2...... Amendments...................................................................................................................... 51
8.3...... Preservation of Rights....................................................................................................... 52
ARTICLE 9
GENERAL PROVISIONS
9.1...... Survival of Representations............................................................................................... 52
9.2...... Governmental Regulation.................................................................................................. 52
9.3...... Headings............................................................................................................................ 53
9.4...... Entire Agreement............................................................................................................... 53
9.5...... Several Obligations; Benefits of this Agreement.............................................................. 53
9.6...... Expenses; Indemnification................................................................................................ 53
9.7...... Numbers of Documents..................................................................................................... 54
9.8...... Accounting........................................................................................................................ 54
9.9...... Severability of Provisions.................................................................................................. 54
9.10.... Nonliability of Lenders...................................................................................................... 54
9.11.... Confidentiality................................................................................................................... 55
9.12.... Nonreliance........................................................................................................................ 55
9.13.... Disclosure.......................................................................................................................... 55
9.14.... PATRIOT Act Notice....................................................................................................... 56
9.15.... Counterparts...................................................................................................................... 56
ARTICLE 10
THE ADMINISTRATIVE AGENT
10.1.... Appointment; Nature of Relationship............................................................................... 56
10.2.... Powers............................................................................................................................... 57
10.3.... General Immunity.............................................................................................................. 57
10.4.... No Responsibility for Loans, Recitals, etc........................................................................ 57
10.5.... Action on Instructions of Lenders..................................................................................... 57
10.6.... Employment of Administrative Agents and Counsel........................................................ 58
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10.7.... Reliance on Documents; Counsel...................................................................................... 58
10.8.... Administrative Agents Reimbursement and Indemnification.......................................... 58
10.9.... Notice of Default............................................................................................................... 59
10.10.. Rights as a Lender............................................................................................................. 59
10.11.. Lender Credit Decision..................................................................................................... 59
10.12.. Successor Administrative Agent....................................................................................... 59
10.13.. Administrative Agent and Joint Lead Arranger Fees........................................................ 60
10.14.. Delegation to Affiliates..................................................................................................... 60
10.15.. Other Agents..................................................................................................................... 60
10.16.. LC Issuer and Swingline Lender....................................................................................... 61
ARTICLE 11
SETOFF; RATABLE PAYMENTS
11.1.... Setoff................................................................................................................................. 61
11.2.... Ratable Payments.............................................................................................................. 61
ARTICLE 12
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1.... Successors and Assigns..................................................................................................... 62
12.2.... Participations..................................................................................................................... 62
12.3.... Assignments....................................................................................................................... 63
12.4.... Dissemination of Information............................................................................................ 64
12.5.... Tax Treatment.................................................................................................................... 64
ARTICLE 13
NOTICES
13.1.... Notices............................................................................................................................... 65
13.2.... Change of Address............................................................................................................ 65
ARTICLE 14
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
14.1.... CHOICE OF LAW........................................................................................................... 66
14.2.... CONSENT TO JURISDICTION..................................................................................... 66
14.3.... WAIVER OF JURY TRIAL............................................................................................ 66
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Schedule I Pricing Schedule
Schedule II Commitments
Schedule 5.8 List of Subsidiaries
Schedule 5.12 Agreements which restrict Subsidiary Dividends or which could reasonably be expected to have a Material Adverse Effect
Schedule 5.14 Indebtedness and Liens
Schedule 13.1 Notice Addresses
EXHIBIT A Form of Opinion
EXHIBIT B Form of Compliance Certificate
EXHIBIT C Form of Assignment Agreement
EXHIBIT D Form of Loan/Credit Related Money Transfer Instructions
EXHIBIT E-1 Form of Revolving Note
EXHIBIT E-2 Form of Swingline Note
EXHIBIT F Form of Joinder Agreement
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AMENDED AND RESTATED CREDIT AGREEMENT
This Amended and Restated Credit Agreement, dated as of April 25, 2007, is made among Idaho Power Company, an Idaho corporation, the Lenders, and Wachovia Bank, National Association, as Administrative Agent for the Lenders.
RECITALS
A. Idaho Power Company, certain banks and other financial institutions, and Wachovia Bank, National Association, as administrative agent, are parties to a certain Credit Agreement dated as of May 3, 2005 (the Existing Credit Agreement ).
B. The parties hereto have agreed to amend and restate the Existing Credit Agreement on the terms and conditions set forth herein, it being the intention of the parties hereto that this Amended and Restated Credit Agreement and the Credit Documents executed in connection herewith shall not effect the novation of the obligations of Idaho Power Company thereunder but be merely a restatement and, where applicable, an amendment of and substitution for the terms governing such obligations hereafter.
C. The Lenders are willing to make available to Idaho Power Company the credit facilities provided for herein subject to and on the terms and conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE , in consideration of the mutual provisions, covenants and agreements herein contained, the parties hereto hereby agree as follows:
. As used in this Agreement:
Acquisition means any transaction, or any series of related transactions, consummated on or after the Closing Date, by which the Borrower or any of its Subsidiaries (i) acquires any going business or all or substantially all of the assets of any firm, corporation or limited liability company, or division thereof, whether through purchase of assets, merger or otherwise or (ii) directly or indirectly acquires (in one transaction or as the most recent transaction in a series of transactions) at least a majority (in number of votes) of the securities of a corporation which have ordinary voting power for the election of directors (other than securities having such power only by reason of the happening of a contingency) or a majority (by percentage or voting power) of the outstanding ownership interests of a partnership or limited liability company.
Administrative Agent means Wachovia Bank, National Association in its capacity as administrative agent (i.e., contractual representative) of the Lenders pursuant to Article 10 , and not in its individual capacity as a Lender, and any successor Administrative Agent appointed pursuant to Article 10 .
Administrative Questionnaire means an administrative questionnaire, substantially in the form supplied by the Administrative Agent, completed by a Lender and furnished to the Administrative Agent in connection with this Agreement.
Advance means a borrowing hereunder, (i) made by the Lenders (or the Swingline Lender in the case of a Swingline Loan) on the same Borrowing Date, or (ii) converted or continued by the Lenders on the same date of conversion or continuation and, in either case, consisting of Revolving Loans of the same Type (or a Swingline Loan made by the Swingline Lender) and, in the case of Eurodollar Advances, for the same Interest Period.
Affected Lender is defined in Section 2.19 .
Affiliate of any Person means any other Person directly or indirectly controlling, controlled by or under common control with such Person. A Person shall be deemed to control another Person if the controlling Person owns 10% or more of any class of voting securities (or other ownership interests) of the controlled Person or possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of the controlled Person, whether through ownership of stock, by contract or otherwise.
Aggregate Commitment means the aggregate of the Commitments of all the Lenders, as reduced or increased from time to time pursuant to the terms hereof.
Aggregate Outstanding Credit Exposure means, at any time, the aggregate of the Outstanding Credit Exposure of all the Lenders.
Agreement means this Amended and Restated Credit Agreement, as amended, modified, restated or supplemented from time to time in accordance with its terms.
Agreement Accounting Principles means generally accepted accounting principles as in effect from time to time applied in a manner consistent with that used in preparing financial statements referred to in Section 5.4 .
Alternate Base Rate means, for any day, a rate of interest per annum equal to the higher of (i) the Prime Rate for such day and (ii) the sum of the Federal Funds Effective Rate for such day plus 1/2% per annum.
Applicable Margin means, with respect to Revolving Loans of any Type at any time, the percentage rate per annum which is applicable at such time with respect to Revolving Loans of such Type as set forth in the Pricing Schedule.
Assuming Lender is defined in Section 2.20(a) .
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Authorized Officer means any of the Chief Executive Officer, President, Chief Financial Officer, Vice President or Treasurer of the Borrower, acting singly.
Available Aggregate Commitment means, at any time, the Aggregate Commitment then in effect minus the Aggregate Outstanding Credit Exposure at such time.
Borrower means Idaho Power Company, an Idaho corporation, and its successors and assigns.
Borrowing Date means a date on which an Advance is made hereunder.
Borrowing Notice is defined in Section 2.7 .
Business Day means (i) with respect to any borrowing, payment or rate selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on which banks generally are open in Charlotte, North Carolina, New York, New York and London, England for the conduct of substantially all of their commercial lending activities, interbank wire transfers can be made on the Fedwire system and dealings in United States dollars are carried on in the London interbank market and (ii) for all other purposes, a day (other than a Saturday or Sunday) on which banks generally are open in Charlotte, North Carolina for the conduct of substantially all of their commercial lending activities and interbank wire transfers can be made on the Fedwire system.
Capitalized Lease of a Person means any lease of Property by such Person as lessee, which would be capitalized on a balance sheet of such Person prepared in accordance with Agreement Accounting Principles.
Capitalized Lease Obligations of a Person means the amount of the obligations of such Person under Capitalized Leases which would be shown as a liability on a balance sheet of such Person prepared in accordance with Agreement Accounting Principles.
Cash Equivalent Investments means (i) short-term obligations of, or fully guaranteed by, the United States of America, (ii) commercial paper rated A-1 or better by S&P or P-1 or better by Moodys, (iii) demand deposit accounts maintained in the ordinary course of business, and (iv) certificates of deposit issued by and time deposits with commercial banks (whether domestic or foreign) having capital and surplus in excess of $100,000,000; provided in each case that the same provides for payment of both principal and interest (and not principal alone or interest alone) and is not subject to any contingency regarding the payment of principal or interest.
Change is defined in Section 3.2 .
Change in Control means the acquisition by any Person, or two or more Persons acting in concert, of beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934) of 20% or more of the outstanding shares of voting stock of the Parent.
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Change in Law means any change in law or in the interpretation, administration or application thereof (including the introduction of any new law, treaty or governmental rule, regulation or order), or any determination of a court or governmental authority, in each case that becomes effective after the date hereof.
Closing Date means the first date all the conditions precedent in Section 4.1 are satisfied or waived in accordance with the terms of this Agreement.
Code means the Internal Revenue Code of 1986, as amended.
Collateral Shortfall Amount is defined in Section 0 .
Commitment means, for each Lender, the obligation of such Lender to make Revolving Loans to the Borrower and to participate in the Swingline Loans and Facility LCs issued upon the application of the Borrower, in an aggregate amount not exceeding the amount set forth opposite its name on Schedule II , or, if such Lender has entered into one or more assignments that has become effective pursuant to Section 12.3(a) or is an Increasing Lender or Assuming Lender, the amount set forth for such Lender at such time in the Register maintained by the Administrative Agent, in either case, as such amount may be reduced or increased from time to time pursuant to the terms hereof.
Commitment Increase and Commitment Increase Date are defined in Section 2.20(a) .
Condemnation is defined in Section 7(i) .
Consent Date is defined in Section 2.21(a) .
Consenting Lender is defined in Section 2.21(a) .
Consolidated Indebtedness means at any time the Indebtedness of the Borrower and its Subsidiaries calculated on a consolidated basis as of such time; provided , however that the aggregate outstanding Indebtedness evidenced by Hybrid Securities shall be excluded to the extent that the total book value of such Hybrid Securities does not exceed 15% of Consolidated Total Capitalization as of such time.
Consolidated Net Worth means at any time the consolidated stockholders equity of the Borrower and its Subsidiaries calculated on a consolidated basis as of such time.
Consolidated Total Capitalization means at any time, without duplication, the sum of (i) Consolidated Indebtedness, (ii) Consolidated Net Worth and (iii) the aggregate outstanding amount of Hybrid Securities, each calculated as of such time.
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Contingent Obligation of a Person means any agreement, undertaking or arrangement by which such Person assumes, guarantees, endorses, contingently agrees to purchase or provide funds for the payment of, or otherwise becomes or is contingently liable upon, the obligation or liability of any other Person, or agrees to maintain the net worth or working capital or other financial condition of any other Person, or otherwise assures any creditor of such other Person against loss, including any comfort letter, operating agreement, take or pay contract or the obligations of any such Person as general partner of a partnership with respect to the liabilities of the partnership.
Conversion/Continuation Notice is defined in Section 2.8 .
Controlled Group means all members of a controlled group of corporations or other business entities and all trades or businesses (whether or not incorporated) under common control which, together with the Borrower or any of its Subsidiaries, are treated as a single employer under Section 414 of the Code.
Credit Extension means the making of an Advance or the issuance of a Facility LC.
Credit Extension Date means the Borrowing Date for an Advance or the issuance date for a Facility LC.
Default means an event described in Article 7 .
Eligible Replacement Lender is defined in Section 0 .
Environmental Laws means any and all applicable federal, state, local and foreign statutes, laws, judicial decisions, regulations, ordinances, rules, judgments, orders, decrees, plans, injunctions, permits, concessions, grants, franchises, licenses, agreements and other governmental restrictions relating to (i) the protection of the environment, (ii) the effect of the environment on human health, (iii) emissions, discharges or releases of pollutants, contaminants, hazardous substances or wastes into surface water, ground water or land, or (iv) the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants, hazardous substances or wastes or the clean-up or other remediation thereof.
ERISA means the Employee Retirement Income Security Act of 1974.
Eurodollar Advance means a Revolving Loan which, except as otherwise provided in Section 2.10 , bears interest at the applicable Eurodollar Rate.
Eurodollar Base Rate means, with respect to a Eurodollar Advance for the relevant Interest Period, an interest rate per annum obtained by dividing (y) the rate of interest (rounded upward, if necessary, to the nearest 1/16 of one percentage point) appearing on Telerate Successor Page 3750 (or any successor page) or (z) if no such rate is available, the rate of interest determined by the Administrative Agent to be the rate or the arithmetic mean of rates (rounded upward, if necessary, to the nearest 1/16 of one percentage point) at which Dollar deposits in immediately available funds are offered to first-tier banks in the London interbank Eurodollar market, in each case under (y) and (z) above at approximately 11:00 a.m., London time, two (2) Business Days prior to the first day of such Interest Period for a period substantially equal to such Interest Period and in an amount substantially equal to the amount of Wachovias Eurodollar Advance comprising part of such Borrowing.
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Eurodollar Rate means, with respect to a Eurodollar Advance for the relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar Base Rate applicable to such Interest Period, divided by (b) 1.00 minus the Reserve Requirement (expressed as a decimal) applicable to such Interest Period, plus (ii) the Applicable Margin.
Excluded Taxes means, in the case of each Lender or applicable Lending Installation and the Administrative Agent, taxes imposed on its overall net income, receipts, profits, capital, net worth, franchise taxes, branch profits or similar taxes, imposed on it, by (i) the jurisdiction under the laws of which such Lender or the Administrative Agent is incorporated or organized, (ii) the jurisdiction in which the Administrative Agents or such Lenders principal executive office or such Lenders applicable Lending Installation is located, or (iii) the jurisdiction in which the Lender, Lending Installation or the Administrative Agent carries on a trade or business.
Extension Date is defined in Section 2.21(a) .
Extension Notice is defined in Section 2.21(a) .
Facility LC is defined in Section 2.18(a) .
Facility LC Application is defined in Section 2.18(c) .
Facility LC Collateral Account is defined in Section 2.18(k) .
Facility LC Maturity Date is defined in Section 2.18(a) .
Facility Termination Date means the earlier to occur of (i) April 25, 2012 (as such date may be extended from time to time pursuant to Section 2.21 ) or (ii) any earlier date on which the Aggregate Commitment is reduced to zero or otherwise terminated pursuant to the terms hereof.
Federal Funds Effective Rate means, for any day, an interest rate per annum (rounded upwards, if necessary, to the nearest 1/100 of one percentage point) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published for such day (or, if such day is not a Business Day, for the immediately preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations at approximately 10:00 a.m. on such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected in good faith by the Administrative Agent.
Fee Letters mean (a) the Wachovia Fee Letter and (b) the JPMorgan Fee Letter.
First Mortgage means that certain Mortgage and Deed of Trust, dated as of October 1, 1937, as supplemented, under which the Borrower is Mortgagor and Deutsche Bank Trust Company Americas (formerly known as Bankers Trust Company) and R.G. Page (Stanley Burg successor individual trustee) are Trustees, as it may from time to time be further amended, supplemented or otherwise modified.
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Floating Rate means, for any day, a rate per annum equal to the sum of (i) the Alternate Base Rate for such day plus (ii) the Applicable Margin, in each case changing when and as the Alternate Base Rate changes.
Floating Rate Advance means a Revolving Loan which, except as otherwise provided in Section 2.10 , bears interest at the Floating Rate.
Hybrid Securities shall mean any hybrid securities, including any trust preferred securities, deferrable interest subordinated debt securities, mandatory convertible debt securities or other hybrid securities issued by the Borrower or any Subsidiary or financing vehicle of the Borrower that (i) have an original maturity of at least twenty (20) years, (ii) require, absent an event of default with respect to such securities, no repayments or prepayments and no mandatory redemptions or repurchases, in each case, prior to the date which is ninety-one (91) days after the occurrence of the Facility Termination Date and (iii) permit the Borrower or any such Subsidiary or any such financing vehicle of the Borrower, respectively, at its option, to defer certain scheduled interest payments.
Increasing Lender is defined in Section 2.20(a) .
Indebtedness of a Person means such Persons (i) obligations for borrowed money, (ii) obligations representing the deferred purchase price of Property or services (other than accounts payable arising in the ordinary course of such Persons business payable on terms customary in the trade), (iii) obligations, whether or not assumed, secured by Liens or payable out of the proceeds or production from Property now or hereafter owned or acquired by such Person, (iv) obligations which are evidenced by notes, acceptances, or other instruments, (v) obligations of such Person to purchase securities or other Property arising out of or in connection with the sale of the same or substantially similar securities or Property, (vi) Capitalized Lease Obligations, (vii) Contingent Obligations, (viii) obligations in respect of Letters of Credit, (ix) Rate Management Obligations, (x) preferred stock which is required by the terms thereof to be redeemed, or for which mandatory sinking fund payments are due, by a fixed date, (xi) Off-Balance Sheet Liabilities, (xii) any other obligation for borrowed money or other financial accommodation which in accordance with Agreement Accounting Principles would be shown as a liability on the consolidated balance sheet of such Person and (xiii) amounts outstanding under a Permitted Receivables Securitization.
Indemnitee is defined in Section 9.6(b) .
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Interest Period means, with respect to a Eurodollar Advance, a period of one, two, three or six months commencing on a Business Day selected by the Borrower pursuant to this Agreement. Each Interest Period shall end on the day which corresponds numerically to such date one, two, three or six months thereafter, provided that if there is no such numerically corresponding day in such next, second, third or sixth succeeding month, such Interest Period shall end on the last Business Day of such next, second, third or sixth succeeding month. If an Interest Period would otherwise end on a day which is not a Business Day, such Interest Period shall end on the next succeeding Business Day, provided that if said next succeeding Business Day falls in a new calendar month, such Interest Period shall end on the immediately preceding Business Day.
Investment of a Person means any loan, advance (other than commission, travel and similar advances to officers and employees made in the ordinary course of business), extension of credit (other than accounts receivable arising in the ordinary course of business on terms customary in the trade) or contribution of capital by such Person; stocks, bonds, mutual funds, partnership interests, notes, debentures or other securities owned by such Person; any deposit accounts and certificate of deposit owned by such Person; and structured notes, derivative financial instruments and other similar instruments or contracts owned by such Person.
Joinder Agreement means a written agreement substantially in the form of Exhibit F hereto.
Joint Lead Arrangers means Wachovia Capital Markets, LLC, and J.P. Morgan Securities Inc., and their respective successors, in their capacity as Joint Lead Arrangers and Joint Book Runners.
JP Morgan Fee Letter means the letter agreement dated March 15, 2007, among the Borrower, Parent, JPMorgan Chase Bank, N.A., and J.P. Morgan Securities Inc.
LC Fee is defined in Section 2.18(d) .
LC Issuer means each of Wachovia (or any subsidiary or Affiliate of Wachovia designated by Wachovia) and any other Lender approved by the Borrower and the Administrative Agent, in each case in its capacity as issuer of Facility LCs hereunder.
LC Obligations means, at any time, the sum, without duplication, of (i) the aggregate undrawn stated amount under all Facility LCs outstanding at such time plus (ii) the aggregate unpaid amount at such time of all Reimbursement Obligations.
LC Payment Date is defined in Section 0 .
Lenders means the lending institutions listed on the signature pages of this Agreement, their respective successors and assigns and any other Person that shall have become a Lender party hereto pursuant to a Joinder Agreement; provided , that unless the context otherwise requires, each reference herein to the Lenders shall be deemed to include the Swingline Lender in such capacity.
Lending Installation means, with respect to a Lender or the Administrative Agent, the office, branch, subsidiary or Affiliate of such Lender or the Administrative Agent specified in its Administrative Questionnaire or otherwise selected by such Lender or the Administrative Agent pursuant to Section 2.16 .
Letter of Credit of a Person means a letter of credit or similar instrument which is issued upon the application of such Person or upon which such Person is an account party or for which such Person is in any way liable.
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LIBOR Market Index Rate means, for any day, the sum of (i) the rate of interest for one month U.S. dollar deposits appearing on Telerate Successor Page 3750 (or any successor page) determined as of 11:00 a.m. (London time), for such day, or if such day is not a London Business Day, then the immediately preceding London Business Day (or if not so reported, then as determined by the Agent from another recognized source or interbank quotation) plus (ii) the Applicable Margin in effect for a Eurodollar Advance from time to time.
LIBOR Market Index Rate Advance means a Swingline Loan which, except as otherwise provided in Section 2.10 , bears interest at the LIBOR Market Index Rate.
Lien means any lien (statutory or other), mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including the interest of a vendor or lessor under any conditional sale, Capitalized Lease or other title retention agreement).
Loans means the Revolving Loans and the Swingline Loans.
Loan Documents means this Agreement, the Facility LC Applications, the Joinder Agreements and any Notes issued pursuant to Section 0 .
London Business Day means a day (other than Saturday or Sunday) on which banks generally are open in London, England for the conduct of substantially all of their commercial lending activities and dealings are carried on in the London interbank market.
Material Adverse Effect means a material adverse effect on (i) the business, Property, condition (financial or otherwise), results of operations, or prospects of the Borrower and its Subsidiaries taken as a whole, (ii) the ability of the Borrower to perform its obligations under the Loan Documents, or (iii) the validity or enforceability of any of the Loan Documents or the rights or remedies of the Administrative Agent, the LC Issuers or the Lenders thereunder.
Material Indebtedness means Indebtedness (other than Obligations) of the Borrower or any of its Subsidiaries, in an aggregate principal amount exceeding $25,000,000 (or its equivalent in any other currency). For purposes of determining Material Indebtedness, the principal amount of the obligations of the Borrower or any of its Subsidiaries in respect of any Rate Management Obligation at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or such Subsidiary would be required to pay if such Rate Management Obligation were terminated at such time of determination.
Material Subsidiary of the Borrower means any Subsidiary (a) whose gross revenues for the fiscal years in respect of which such statements and related balance sheet were prepared (or the last full fiscal year in the case of quarterly financial statements) exceeded 10% of the consolidated gross revenue of the Borrower and all its Subsidiaries for such fiscal year or (b) whose gross assets as at the end of such fiscal year were in excess of 10% of the consolidated gross assets of the Borrower and all its Subsidiaries for such fiscal year.
Modify and Modification are defined in Section 2.18(a) .
Moodys means Moodys Investors Service, Inc.
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Multiemployer Plan means a Plan maintained pursuant to a collective bargaining agreement or any other arrangement to which the Borrower or any member of the Controlled Group is a party to which more than one employer is obligated to make contributions.
Non-Consenting Lender is defined in Section 2.21(a) .
Non-U.S. Lender is defined in Section 3.5(d) .
Notes means any or all of the Revolving Notes and the Swingline Note.
Obligations means all unpaid principal of and accrued and unpaid interest on the Loans, all Reimbursement Obligations, all accrued and unpaid fees and all expenses, reimbursements, indemnities and other obligations of the Borrower to the Lenders or to any Lender, the Administrative Agent, the Swingline Lender, any LC Issuer or any indemnified party arising under the Loan Documents.
OFAC means the U.S. Department of the Treasurys Office of Foreign Assets Control, and any successor thereto.
Off-Balance Sheet Liability of a Person means, without duplication, (i) any repurchase obligation or liability of such Person with respect to accounts or notes receivable sold by such Person, (ii) any liability under any Sale and Leaseback Transaction which is not a Capitalized Lease, (iii) any liability under any so-called synthetic lease transaction entered into by such Person, or (iv) any obligation arising with respect to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the balance sheets of such Person, but excluding from this clause (iv) all Operating Leases.
Operating Lease of a Person means any lease of Property (other than a Capitalized Lease) by such Person as lessee, which has an original term (including any required renewals and any renewals effective at the option of the lessor) of one year or more.
Other Taxes is defined in Section 3.5(b) .
Outstanding Credit Exposure means, as to any Lender at any time, the sum of (i) the aggregate principal amount of all Loans made by such Lender outstanding at such time, (ii) such Lenders Pro Rata Share of the LC Obligations at such time and (iii) such Lenders (other than the Swingline Lenders) Pro Rata Share of the Swingline Loans outstanding at such time.
Parent means IDACORP, Inc., an Idaho corporation, and its successors and assigns.
Participants is defined in Section 0 .
PATRIOT Act means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001)), as amended from time to time, and any successor statute, and all rules and regulations from time to time promulgated thereunder.
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Payment Date means the last day of each March, June, September and December.
PBGC means the Pension Benefit Guaranty Corporation, or any successor thereto.
Permitted Receivables Securitization means a limited recourse or non-recourse sale, assignment or contribution of accounts receivable and related records, collateral and rights of the Borrower and/or one or more of its Subsidiaries to one or more special purpose entities, in connection with the issuance of obligations by any such special purpose entity secured by such assets, the proceeds of the issuance of which obligations shall be made available, directly or indirectly, to the Borrower and/or the applicable Subsidiaries.
Person means any natural person, corporation, firm, joint venture, partnership, limited liability company, association, enterprise, trust or other entity or organization, or any government or political subdivision or any agency, department or instrumentality thereof.
Plan means an employee pension benefit plan which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code as to which the Borrower or any member of the Controlled Group may have any liability.
Pricing Schedule means Schedule I attached hereto identified as such.
Prime Rate means the per annum interest rate publicly announced from time to time by Wachovia in Charlotte, North Carolina, to be its prime rate (which may not necessarily be its lowest or best lending rate), as adjusted to conform to changes as of the opening of business on the date of any such change in such prime rate.
Prior Termination Date is defined in Section 0 .
Property of a Person means any and all property, whether real, personal, tangible, intangible, or mixed, of such Person, or other assets owned, leased or operated by such Person.
Pro Rata Share means, with respect to a Lender, a portion equal to a fraction the numerator of which is such Lenders Commitment and the denominator of which is the Aggregate Commitment (or, if the Commitments have been terminated, a portion equal to a fraction (i) the numerator of which is equal to the sum of (A) the principal amount of such Lenders Loans, (B) such Lenders (other than the Swingline Lenders) participation interest in the Swingline Loans, and (C) such Lenders participation interest in the LC Obligations, and (ii) the denominator of which is equal to the sum of (A) the aggregate principal amount of all Loans and (B) all LC Obligations).
Purchasers is defined in Section 12.3(a) .
Rate Management Obligations of a Person means any and all obligations of such Person, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), under (i) any and all Rate Management Transactions, and (ii) any and all cancellations, buy backs, reversals, terminations or assignments of any Rate Management Transactions.
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Rate Management Transaction means any transaction (including an agreement with respect thereto) now existing or hereafter entered into by the Borrower or the Parent which is a rate swap, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, forward transaction, currency swap transaction, cross-currency rate swap transaction, currency option or any other similar transaction (including any option with respect to any of these transactions) or any combination thereof, whether linked to one or more interest rates, foreign currencies, commodity prices, equity prices or other financial measures.
Refunded Swingline Loans is defined in Section 0 .
Register is defined in Section 12.3(c) .
Regulation D means Regulation D of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor thereto or other regulation or official interpretation of said Board of Governors relating to reserve requirements applicable to member banks of the Federal Reserve System.
Regulation U means Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor or other regulation or official interpretation of said Board of Governors relating to the extension of credit by banks for the purpose of purchasing or carrying margin stocks applicable to member banks of the Federal Reserve System.
Reimbursement Obligations means, at any time, the aggregate of all obligations of the Borrower then outstanding under Section 2.18 to reimburse the LC Issuers for amounts paid by the LC Issuers in respect of any one or more drawings under Facility LCs.
Reportable Event means a reportable event as defined in Section 4043 of ERISA and the regulations issued under such section, with respect to a Plan, excluding, however, such events as to which the PBGC has by regulation waived the requirement of Section 4043(a) of ERISA that it be notified within thirty (30) days of the occurrence of such event, provided that a failure to meet the minimum funding standard of Section 412 of the Code and of Section 302 of ERISA shall be a Reportable Event regardless of the issuance of any such waiver of the notice requirement in accordance with either Section 4043(a) of ERISA or Section 412(d) of the Code.
Reports is defined in Section 9.6 .
Required Lenders means Lenders in the aggregate having at least a majority of the Aggregate Commitment or, if the Aggregate Commitment has been terminated, Lenders in the aggregate holding at least a majority of the Aggregate Outstanding Credit Exposure.
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Reserve Requirement means, with respect to an Interest Period, the reserve percentage (expressed as a decimal and rounded upwards, if necessary, to the next higher 1/100 th of 1%) in effect from time to time during such Interest Period, as provided by the Federal Reserve Board, applied for determining the maximum aggregate reserve requirement (including all basic, supplemental, marginal and other reserves), which is imposed under Regulation D on Eurocurrency liabilities or under any similar or successor regulation with respect to Eurocurrency liabilities or Eurocurrency funding.
Revolving Loans is defined in Section 2.1(a) .
Revolving Note means a promissory note issued at the request of a Lender pursuant to Section 2.12(d) , in substantially the form of Exhibit E-1 hereto, evidencing the aggregate indebtedness of the Borrower to such Lender resulting from the Revolving Loans made by such Lender.
Risk-Based Capital Guidelines is defined in Section 3.2 .
S&P means Standard and Poors Ratings Services, a division of The McGraw Hill Companies, Inc.
Sale and Leaseback Transaction means any sale or other transfer of Property by any Person with the intent to lease such Property as lessee.
Sanctioned Country means a country subject to a sanctions program identified on the list maintained by OFAC and available at http://www.treas.gov/offices/enforcement/ofac/sanctions/, or as otherwise published from time to time.
Sanctioned Person means (i) a Person named on the list of Specially Designated Nationals or Blocked Persons maintained by OFAC available at http://www.treas.gov/offices/enforcement/ofac/sdn/t11sdn.pdf, or as otherwise published from time to time, or (ii) (A) an agency of the government of a Sanctioned Country, (B) an organization controlled by a Sanctioned Country, or (C) a Person resident in a Sanctioned Country, to the extent subject to a sanctions program administered by OFAC.
Single Employer Plan means a Plan maintained by the Borrower or any member of the Controlled Group for employees of the Borrower or any member of the Controlled Group.
Subsidiary of a Person means (i) any corporation more than 50% of the outstanding securities having ordinary voting power of which shall at the time be owned or controlled, directly or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, or (ii) any partnership, limited liability company, association, joint venture or similar business organization more than 50% of the ownership interests having ordinary voting power of which shall at the time be so owned or controlled. Unless otherwise expressly provided, all references herein to a Subsidiary shall mean a Subsidiary of the Borrower.
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Substantial Portion means, with respect to the Property of the Borrower and its Subsidiaries, Property which (i) represents more than 10% of the consolidated assets of the Borrower and its Subsidiaries as would be shown in the consolidated financial statements of the Borrower and its Subsidiaries as of the beginning of the twelve-month period ending with the month in which such determination is made, or (ii) is responsible for more than 10% of the consolidated net sales or of the consolidated net income of the Borrower and its Subsidiaries as reflected in the financial statements referred to in clause (i) above.
Swingline Borrowing Notice is defined in Section 2.7(b) .
Swingline Commitment shall mean $30,000,000 or, if less, the Aggregate Commitment at the time of determination, as such amount may be reduced.
Swingline Lender shall mean Wachovia in its capacity as maker of Swingline Loans, and its successors in such capacity.
Swingline Loans is defined in Section 2.1(c) .
Swingline Note means a promissory note issued at the request of the Swingline Lender pursuant to Section 2.12(d) , in substantially the form of Exhibit E-2 hereto, evidencing the aggregate indebtedness of the Borrower to the Swingline Lender resulting from Swingline Loans made by the Swingline Lender.
Taxes means any and all present or future taxes, duties, levies, imposts, deductions, charges or withholdings, and any and all liabilities with respect to the foregoing, but excluding Excluded Taxes and Other Taxes.
Transferee is defined in Section 12.4 .
Type is defined in Section 2.3 .
Unfunded Liabilities means the amount (if any) by which the present value of all vested and unvested accrued benefits under all Single Employer Plans exceeds the fair market value of all such Plan assets allocable to such benefits, all determined as of the then most recent valuation date for such Plans using PBGC actuarial assumptions for single employer plan terminations.
Unmatured Default means an event which but for the lapse of time or the giving of notice, or both, would constitute a Default.
Unutilized Swingline Commitment means, with respect to the Swingline Lender at any time, the Swingline Commitment at such time less the aggregate principal amount of all Swingline Loans that are outstanding at such time.
Wachovia means Wachovia Bank, National Association, and its successors and assigns.
Wachovia Fee Letter means the letter agreement, dated March 15, 2007, among Borrower, the Parent, Wachovia and Wachovia Capital Markets, LLC.
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Wholly-Owned Subsidiary of a Person means (i) any Subsidiary all of the outstanding voting securities of which shall at the time be owned or controlled, directly or indirectly, by such Person or one or more Wholly-Owned Subsidiaries of such Person, or by such Person and one or more Wholly-Owned Subsidiaries of such Person, or (ii) any partnership, limited liability company, association, joint venture or similar business organization 100% of the ownership interests having ordinary voting power of which shall at the time be so owned or controlled.
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. The Revolving Loans may be Floating Rate Advances or Eurodollar Advances (each, a Type of Advance), or a combination thereof, selected by the Borrower in accordance with Sections 2.7 and 2.8 . Each Eurodollar Advance shall be in the amount of $5,000,000 or a higher integral multiple of $100,000, and each Floating Rate Advance shall be in the amount of $5,000,000 or a higher integral multiple of $100,000, provided that any Floating Rate Advance may be in the amount of the Available Aggregate Commitment. The Swingline Loans shall be made and maintained as LIBOR Market Index Rate Advances at all times.
. In addition to certain fees described in Section 2.18(d) :
. The Borrower may permanently reduce the Aggregate Commitment in whole, or in part ratably among the Lenders in integral multiples of $10,000,000, upon at least five (5) Business Days written notice to the Administrative Agent, which notice shall specify the amount of any such reduction, provided that the amount of the Aggregate Commitment may not be reduced below the Aggregate Outstanding Credit Exposure. All accrued facility fees and utilization fees shall be payable on the effective date of any termination of the obligations of the Lenders to make Credit Extensions hereunder.
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. The Borrower may from time to time pay, without penalty or premium, all outstanding Floating Rate Advances or, in an aggregate amount of $5,000,000 or a higher integral multiple of $100,000, any portion of the outstanding Floating Rate Advances upon one (1) Business Days prior notice to the Administrative Agent. The Borrower may from time to time pay, subject to the payment of any funding indemnification amounts required by Section 3.4 but without penalty or premium, all outstanding Eurodollar Advances or, in an aggregate amount of $5,000,000 or a higher integral multiple of $100,000, any portion of the outstanding Eurodollar Advances upon three (3) Business Days prior notice to the Administrative Agent.
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Not later than 1:00 p.m. on each Borrowing Date, each Lender shall make available its Pro Rata Share of the Revolving Loan or Revolving Loans in funds immediately available to the Administrative Agent at its address specified pursuant to Article 0 . The Administrative Agent will make the funds so received from the Lenders available to the Borrower at the Administrative Agents aforesaid address.
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. Floating Rate Advances shall continue as Floating Rate Advances unless and until such Floating Rate Advances are converted into Eurodollar Advances pursuant to this Section 2.8 or are repaid in accordance with Section 2.6 . Each Eurodollar Advance shall continue as a Eurodollar Advance until the end of the then applicable Interest Period therefor, at which time such Eurodollar Advance shall be automatically converted into a Floating Rate Advance unless (x) such Eurodollar Advance is or was repaid in accordance with Section 2.6 or (y) the Borrower shall have given the Administrative Agent a Conversion/Continuation Notice (as defined below) requesting that, at the end of such Interest Period, such Eurodollar Advance continue as a Eurodollar Advance for the same or another Interest Period. Subject to Section 2.3 , the Borrower may elect from time to time to convert all or any part of a Floating Rate Advance into a Eurodollar Advance. The Borrower shall give the Administrative Agent irrevocable notice (a Conversion/Continuation Notice ) of each conversion of a Floating Rate Advance into a Eurodollar Advance or continuation of a Eurodollar Advance not later than 11:00 a.m. at least three (3) Business Days prior to the date of the requested conversion or continuation, specifying:
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. Notwithstanding anything to the contrary contained in Sections 2.7 , 2.8 or 2.9 , during the continuance of a Default the Required Lenders may, at their option, by notice to the Borrower, declare that no Advance may be made as, converted into or continued as a Eurodollar Advance. During the continuance of a Default the Required Lenders may, at their option, by notice to the Borrower, declare that (i) each Eurodollar Advance shall bear interest for the remainder of the applicable Interest Period at the rate otherwise applicable to such Interest Period plus 2% per annum, (ii) each Floating Rate Advance shall bear interest at a rate per annum equal to the Floating Rate in effect from time to time plus 2% per annum (iii) each LIBOR Market Index Rate Advance shall bear interest at a rate per annum equal to the LIBOR Market Index Rate in effect from time to time plus 2% per annum, and (iv) the LC Fee shall be increased by 2% per annum, provided that during the continuance of a Default under Sections 7(g) or 7(h) , the interest rates set forth in clauses (i) , (ii) and (iii) above and the increase in the LC Fee set forth in clause (iv) above shall be applicable to all Credit Extensions without any election or action on the part of the Administrative Agent or any Lender.
. All payments of the Obligations hereunder shall be made, without setoff, deduction, or counterclaim, in immediately available funds to the Administrative Agent at the Administrative Agents address specified pursuant to Article 0 , or at any other Lending Installation of the Administrative Agent specified in writing by the Administrative Agent to the Borrower, by 12:00 noon (local time) on the date when due and shall (except for payments of Reimbursement Obligations for which the applicable LC Issuer has not received payments from the Lenders or as otherwise specifically required hereunder) be applied ratably by the Administrative Agent among the Lenders. Each payment delivered to the Administrative Agent for the account of any Lender shall be delivered promptly by the Administrative Agent to such Lender in the same type of funds that the Administrative Agent received at its address specified pursuant to Article 0 or at any Lending Installation specified in a notice received by the Administrative Agent from such Lender. The Administrative Agent is hereby authorized to charge any account of the Borrower maintained with Wachovia for each payment of principal, interest, Reimbursement Obligations and fees as it becomes due hereunder. Each reference to the Administrative Agent in this Section 2.11 shall also be deemed to refer, and shall apply equally, (i) to the Swingline Lender, in the case of payments required to be made by the Borrower to the Swingline Lender and (ii) to the applicable LC Issuer, in the case of payments required to be made by the Borrower to such LC Issuer.
. The Borrower hereby authorizes the Lenders and the Administrative Agent to extend, convert or continue Advances, effect selections of Types of Advances and to transfer funds based on telephonic notices made by any person or persons the Administrative Agent or any Lender in good faith believes to be acting on behalf of the Borrower, it being understood that the foregoing authorization is specifically intended to allow Borrowing Notices, Swingline Borrowing Notices and Conversion/Continuation Notices to be given telephonically. The Borrower agrees to deliver promptly to the Administrative Agent a written confirmation, if such confirmation is requested by the Administrative Agent or any Lender, of each telephonic notice signed by an Authorized Officer. If the written confirmation differs in any material respect from the action taken by the Administrative Agent and the Lenders, the records of the Administrative Agent and the Lenders shall govern absent manifest error.
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. Promptly after receipt thereof, the Administrative Agent will notify each Lender of the contents of each Aggregate Commitment reduction notice, Borrowing Notice (including Borrowing Notices received from the Swingline Lender in accordance with Section 0 ), Swingline Borrowing Notice, Conversion/Continuation Notice, and repayment notice received by it hereunder. Promptly after notice from any LC Issuer, the Administrative Agent will notify each Lender of the contents of each request for issuance of a Facility LC hereunder. The Administrative Agent will notify each Lender of the interest rate applicable to each Eurodollar Advance and each LIBOR Market Index Rate Advance promptly upon determination of such interest rate and will give each Lender prompt notice of each change in the Alternate Base Rate.
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. Each Lender may book its Loans, its participations in any outstanding Swingline Loans, and its participation in any LC Obligations and any LC Issuer may book the Facility LCs at any Lending Installation selected by such Lender or such LC Issuer, as the case may be, and may change its Lending Installation from time to time. All terms of this Agreement shall apply to any such Lending Installation and the Loans, Facility LCs, participations in outstanding Swingline Loans, participations in LC Obligations and any Notes issued hereunder shall be deemed held by each Lender or each LC Issuer, as the case may be, for the benefit of any such Lending Installation. Each Lender and each LC Issuer may, by written notice to the Administrative Agent and the Borrower in accordance with Article 0 , designate replacement or additional Lending Installations through which Loans will be made by it or Facility LCs will be issued by it and for whose account Loan payments or payments with respect to Facility LCs are to be made.
. Unless the Borrower or a Lender, as the case may be, notifies the Administrative Agent prior to the date on which it is scheduled to make payment to the Administrative Agent of (i) in the case of a Lender, the proceeds of a Loan or (ii) in the case of the Borrower, a payment of principal, interest or fees to the Administrative Agent for the account of the Lenders, that it does not intend to make such payment, the Administrative Agent may assume that such payment has been made. The Administrative Agent may, but shall not be obligated to, make the amount of such payment available to the intended recipient in reliance upon such assumption. If such Lender or the Borrower, as the case may be, has not in fact made such payment to the Administrative Agent, the recipient of such payment shall, on demand by the Administrative Agent, repay to the Administrative Agent the amount so made available together with interest thereon in respect of each day during the period commencing on the date such amount was so made available by the Administrative Agent until the date the Administrative Agent recovers such amount at a rate per annum equal to (x) in the case of payment by a Lender, the Federal Funds Effective Rate for such day for the first three (3) days and, thereafter, the interest rate applicable to the relevant Loan or (y) in the case of payment by the Borrower, the interest rate applicable to the relevant Loan.
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. If the Borrower is required pursuant to Sections 3.1 , 3.2 or 3.5 to make any additional payment to any Lender or if any Lenders obligation to make or continue, or to convert Floating Rate Advances into, Eurodollar Advances shall be suspended pursuant to Section 3.3 (any Lender so affected an Affected Lender ), the Borrower may elect, if such amounts continue to be charged or such suspension is still effective, to replace such Affected Lender as a Lender party to this Agreement, provided that no Default or Unmatured Default shall have occurred and be continuing at the time of such replacement, and provided further that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to the Borrower and the Administrative Agent shall agree, as of such date, to purchase for cash the Advances and other Obligations (excluding the amounts payable by the Borrower pursuant to clause (ii) of this proviso) due to the Affected Lender pursuant to an assignment substantially in the form of Exhibit C and to become a Lender for all purposes under this Agreement and to assume all obligations of the Affected Lender to be terminated as of such date and to comply with the requirements of Section 12.3 applicable to assignments, and (ii) the Borrower shall pay to such Affected Lender in same day funds on the day of such replacement (A) all interest, fees and other amounts then accrued but unpaid to such Affected Lender by the Borrower hereunder to and including the date of termination, including payments due to such Affected Lender under Sections 3.1 , 3.2 or 3.5 , and (B) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 3.4 had the Loans of such Affected Lender been prepaid on such date rather than sold to the replacement Lender.
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. If, on or after the Closing Date, the adoption of any law or any governmental or quasi governmental rule, regulation, policy, guideline or directive (whether or not having the force of law), or any change in the interpretation or administration thereof by any governmental or quasi-governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender or applicable Lending Installation or any LC Issuer with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency:
and the result of any of the foregoing is to increase the cost to such Lender or applicable Lending Installation, Swingline Lender or such LC Issuer, as the case may be, of making or maintaining its Eurodollar Advances or LIBOR Market Index Rate Advances, or of issuing or participating in Swingline Loans or Facility LCs, or to reduce the return received by such Lender or applicable Lending Installation, Swingline Lender or such LC Issuer, as the case may be, in connection with such Eurodollar Advances, LIBOR Market Index Rate Advances, Facility LCs or participations therein, then, within fifteen (15) days of demand by such Lender, Swingline Lender or LC Issuer, as the case may be, the Borrower shall pay such Lender, Swingline Lender or LC Issuer, as the case may be, such additional amount or amounts as will compensate such Lender, Swingline Lender or LC Issuer for such increased cost or reduction in amount received.
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. If a Lender, Swingline Lender or any LC Issuer determines the amount of capital required or expected to be maintained by such Lender, Swingline Lender or such LC Issuer, any Lending Installation of such Lender, Swingline Lender or such LC Issuer, or any corporation controlling such Lender, Swingline Lender or such LC Issuer is increased as a result of a Change, then, within fifteen (15) days of demand by such Lender, Swingline Lender or such LC Issuer, the Borrower shall pay such Lender, Swingline Lender or such LC Issuer the amount necessary to compensate for any shortfall in the rate of return on the portion of such increased capital which such Lender, Swingline Lender or such LC Issuer determines is attributable to this Agreement, its Outstanding Credit Exposure or its Commitment to make Loans and issue or participate in Swingline Loans and Facility LCs, as the case may be, hereunder (after taking into account such Lenders, Swingline Lenders or LC Issuers policies as to capital adequacy). Change means (i) any change after the Closing Date in the Risk-Based Capital Guidelines, or (ii) any adoption of or change in any other law, governmental or quasi governmental rule, regulation, policy, guideline, interpretation, or directive (whether or not having the force of law) after the Closing Date which affects the amount of capital required or expected to be maintained by any Lender, Swingline Lender or any LC Issuer or any Lending Installation or any corporation controlling any Lender, Swingline Lender or any LC Issuer. Risk-Based Capital Guidelines means (i) the risk based capital guidelines in effect in the United States on the Closing Date, including transition rules, and (ii) the corresponding capital regulations promulgated by regulatory authorities outside the United States implementing the July 1988 report of the Basle Committee on Banking Regulation and Supervisory Practices Entitled International Convergence of Capital Measurements and Capital Standards, including transition rules, and any amendments to such regulations adopted prior to the Closing Date.
. If any Lender determines that maintenance of its Eurodollar Advances at a suitable Lending Installation would violate any applicable law, rule, regulation, or directive, whether or not having the force of law, or if the Required Lenders determine that (i) deposits of a type and maturity appropriate to match fund Eurodollar Advances are not available or (ii) the interest rate applicable to Eurodollar Advances does not accurately reflect the cost of making or maintaining Eurodollar Advances, then the Administrative Agent shall suspend the availability of Eurodollar Advances and require any affected Eurodollar Advances to be repaid or converted to Floating Rate Advances, subject to the payment of any funding indemnification amounts required by Section 3.4 .
. If any payment of a Eurodollar Advance occurs on a date which is not the last day of the applicable Interest Period, whether because of acceleration, prepayment or otherwise, or a Eurodollar Advance is not made on the date specified by the Borrower for any reason other than default by the Lenders, the Borrower will indemnify each Lender for any loss or cost incurred by it resulting therefrom, including any loss or cost in liquidating or employing deposits acquired to fund or maintain such Eurodollar Advance.
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. To the extent reasonably possible, each Lender shall designate an alternate Lending Installation with respect to its Eurodollar Advances to reduce any liability of the Borrower to such Lender under Sections 3.1 , 3.2 and 3.5 or to avoid the unavailability of Eurodollar Advances under Section 3.3 , so long as such designation is not, in the judgment of such Lender, disadvantageous to such Lender. Each Lender shall deliver a written statement of such Lender to the Borrower (with a copy to the Administrative Agent) as to the amount due, if any, under Sections 3.1 , 3.2 , 3.4 or 3.5 . Such written statement shall set forth in reasonable detail the calculations upon which such Lender determined such amount and shall be final, conclusive and binding on the Borrower in the absence of manifest error. Determination of amounts payable under such Sections in connection with a Eurodollar Advance shall be calculated as though each Lender funded its Eurodollar Advance through the purchase of a deposit of the type and maturity corresponding to the deposit used as a reference in determining the Eurodollar Rate applicable to such Revolving Loan, whether in fact that is the case or not. Unless otherwise provided herein, the amount specified in the written statement of any Lender shall be payable on demand after receipt by the Borrower of such written statement. The obligations of the Borrower under Sections 3.1 , 3.2 , 3.4 and 3.5 shall survive payment of the Obligations and termination of this Agreement.
. The Lenders and the LC Issuers shall not be required to make an initial Credit Extension hereunder unless the Borrower has furnished to the Administrative Agent sufficient copies for the Lenders of:
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. The obligation of each Lender to make any Credit Extension hereunder, including the initial Credit Extension (but excluding Revolving Loans made for the purpose of repaying Refunded Swingline Loans pursuant to Section 0 or for the purpose of paying unpaid reimbursement obligations of the Borrower pursuant to Section 0 ), is subject to the satisfaction of the following conditions precedent on the applicable Credit Extension Date:
Each Borrowing Notice, Swingline Borrowing Notice or request for issuance of a Facility LC with respect to each such Credit Extension shall constitute a representation and warranty by the Borrower that the conditions contained in Sections 4.2(i) and (ii) have been satisfied. Any Lender may require a duly completed compliance certificate in substantially the form of Exhibit B as a condition to making a Credit Extension.
The Borrower represents and warrants to the Lenders that:
. Each of the Borrower and its Subsidiaries is a corporation, partnership (in the case of Subsidiaries only) or limited liability company duly and properly incorporated or organized, as the case may be, validly existing and (to the extent such concept applies to such entity) in good standing under the laws of its jurisdiction of incorporation or organization and has all requisite authority to conduct its business in each jurisdiction in which its business is conducted, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
. The Borrower has the power and authority and legal right to execute and deliver the Loan Documents and to perform its obligations thereunder. The execution and delivery by the Borrower of the Loan Documents and the performance of its obligations thereunder have been duly authorized by proper corporate proceedings, and the Loan Documents constitute legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their terms, except as enforceability may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors rights generally.
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. Neither the execution and delivery by the Borrower of the Loan Documents, nor the consummation of the transactions therein contemplated, nor compliance with the provisions thereof will violate, except to the extent that such violation, alone or in the aggregate, could not reasonably be expected to have a Material Adverse Effect, (i) any law, rule, regulation, order, writ, judgment, injunction, decree or award binding on the Borrower or any of its Subsidiaries or (ii) the Borrowers or any Subsidiarys articles or certificate of incorporation, partnership agreement, certificate of partnership, articles or certificate of organization, bylaws, or operating or other management agreement, as the case may be, or (iii) the provisions of any indenture, instrument or agreement to which the Borrower or any of its Subsidiaries is a party or is subject, or by which it, or its Property, is bound, or conflict with or constitute a default thereunder, or result in, or require, the creation or imposition of any Lien in, of or on the Property of the Borrower or a Subsidiary pursuant to the terms of any such indenture, instrument or agreement. No order, consent, adjudication, approval, license, authorization, or validation of, or filing, recording or registration with, or exemption by, or other action in respect of any governmental or public body or authority, or any subdivision thereof, which has not been obtained by the Borrower or any of its Subsidiaries, is required to be obtained by the Borrower or any of its Subsidiaries in connection with the execution and delivery of the Loan Documents, the borrowings under this Agreement, the payment and performance by the Borrower of the Obligations or the legality, validity, binding effect or enforceability of any of the Loan Documents.
. The December 31, 2006 consolidated financial statements of the Borrower and its Subsidiaries heretofore delivered to the Lenders were prepared in accordance with the Agreement Accounting Principles in effect on the date such statements were prepared and fairly present the consolidated financial condition and operations of the Borrower and its Subsidiaries at such date and the consolidated results of their operations for the period then ended.
. Since December 31, 2006, there has been no change in the business, Property, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries which could reasonably be expected to have a Material Adverse Effect.
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. The Borrower and its Subsidiaries have filed all material United States federal tax returns and all other tax returns which are required to be filed and have paid all taxes due pursuant to said returns or pursuant to any assessment received by the Borrower or any of its Subsidiaries, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided in accordance with Agreement Accounting Principles. No tax liens have been filed and no claims are being asserted with respect to any such taxes claimed to be due and payable that would, if adversely determined, have a Material Adverse Effect. The charges, accruals and reserves for taxes on the books of the Borrower and its Subsidiaries (to the extent in excess of $5,000,000) are adequate under Agreement Accounting Principles. Notwithstanding any provision in this Agreement to the contrary, the only representations and warranties made by the Borrower with respect to matters relating to taxes shall be the representations and warranties set forth in this Section Error! Reference source not found., and this Agreement shall not be interpreted in any manner that is contrary hereto.
. Except as set forth in the most recent consolidated financial statements provided to the Administrative Agent pursuant to Section 5.4 or Section 6.1 , respectively, there is no litigation, arbitration, governmental investigation, proceeding or inquiry pending or, to the knowledge of any of their officers, threatened against or affecting the Borrower or any of its Subsidiaries which could reasonably be expected to have a Material Adverse Effect or which seeks to prevent, enjoin or delay the making of any Credit Extensions. Other than any liability incident to any litigation, arbitration or proceeding, which, if decided adversely, would not reasonably be expected to have a Material Adverse Effect, the Borrower has no material contingent liabilities or obligations not provided for or disclosed in the most recent consolidated financial statements provided to the Administrative Agent pursuant to Section 5.4 or Section 6.1 , respectively.
. Schedule 5.8 contains an accurate list of all Subsidiaries of the Borrower as of the Closing Date, setting forth their respective jurisdictions of organization and the percentage of their respective capital stock or other ownership interests owned by the Borrower or other Subsidiaries. All of the issued and outstanding shares of capital stock or other ownership interests of such Subsidiaries have been (to the extent such concepts are relevant with respect to such ownership interests) duly authorized and issued and are fully paid and nonassessable.
. The Unfunded Liabilities of all Single Employer Plans do not in the aggregate exceed $75,000,000. Neither the Borrower nor any other member of the Controlled Group has incurred, or is reasonably expected to incur, any withdrawal liability to Multiemployer Plans in excess of $25,000,000 in the aggregate. Each Plan complies in all material respects with all applicable requirements of law and regulations, no Reportable Event has occurred with respect to any Plan, neither the Borrower nor any other member of the Controlled Group has withdrawn from any Plan or initiated steps to do so, and no steps have been taken to reorganize or terminate any Plan.
. No information, exhibit or report furnished by the Borrower or any of its Subsidiaries to the Administrative Agent, the Joint Lead Arrangers or to any Lender in connection with the negotiation of, or compliance with, the Loan Documents contained any material misstatement of fact or omitted to state a material fact or any fact necessary to make the statements contained therein not misleading.
. Margin stock (as defined in Regulation U) constitutes less than 25% of the value of those assets of the Borrower and its Subsidiaries which are subject to any limitation on sale, pledge, or other restriction hereunder.
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. Except as set forth in Schedule 5.12 , neither the Borrower nor any Subsidiary is a party to any agreement or instrument or subject to any charter or other corporate restriction (a) which either prohibits or restricts the ability of any Subsidiary of Borrower to declare or pay dividends to the Borrower, or (b) which could reasonably be expected to have a Material Adverse Effect. Neither the Borrower nor any Subsidiary is in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in (i) any agreement to which it is a party, which default could reasonably be expected to have a Material Adverse Effect or (ii) any agreement or instrument evidencing or governing Material Indebtedness, which default could reasonably be expected to have a Material Adverse Effect.
. The Borrower and its Subsidiaries have complied with all applicable statutes, rules, regulations, orders and restrictions of any domestic or foreign government or any instrumentality or agency thereof having jurisdiction over the conduct of their respective businesses or the ownership of their respective Property except for any failure to comply with any of the foregoing which could not reasonably be expected to have a Material Adverse Effect.
. Except as set forth on Schedule 5.14 , as of the Closing Date, the Borrower and its Subsidiaries will have good title, free of all Liens other than those permitted by Section 6.11 , to all of the Property and assets reflected in the Borrowers most recent consolidated financial statements provided to the Administrative Agent as owned by the Borrower and its Subsidiaries.
. The Borrower is not an entity deemed to hold plan assets within the meaning of 29 C.F.R. § 2510.3-101 of an employee benefit plan (as defined in Section 3(3) of ERISA) which is subject to Title I of ERISA or any plan (within the meaning of Section 4975 of the Code), and neither the execution of this Agreement nor the making of Credit Extensions hereunder gives rise to a prohibited transaction within the meaning of Section 406 of ERISA or Section 4975 of the Code.
. In the ordinary course of its business, the Borrower considers the effect of Environmental Laws on the business of the Borrower and its Subsidiaries, in the course of which it identifies and evaluates potential risks and liabilities accruing to the Borrower due to Environmental Laws. On the basis of this consideration, the Borrower has concluded that the potential risks and liabilities accruing to the Borrower due to Environmental Laws could not reasonably be expected to have a Material Adverse Effect. Neither the Borrower nor any Subsidiary has received any notice to the effect that its operations are not in material compliance with any of the requirements of applicable Environmental Laws or are the subject of any federal or state investigation evaluating whether any remedial action is needed to respond to a release of any toxic or hazardous waste or substance into the environment, which noncompliance or remedial action could reasonably be expected to have a Material Adverse Effect.
. The Borrower is not an investment company or a company controlled by an investment company, within the meaning of the Investment Company Act of 1940.
.
During the term of this Agreement, unless the Required Lenders shall otherwise consent in writing:
. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with the Agreement Accounting Principles, and furnish to the Administrative Agent in sufficient copies for each of the Lenders:
. The Borrower will, and will cause each Subsidiary to, use the proceeds of the Credit Extensions for general corporate purposes and commercial paper back-up.
The Borrower will, and will cause each Subsidiary to, give prompt notice in writing to the Lenders of the occurrence of (i) any Default or Unmatured Default and (ii) the commencement of or any ruling in any litigation, or any other development, financial or otherwise, which could reasonably be expected to have a Material Adverse Effect.
. The Borrower will, and will cause each Material Subsidiary to, carry on and conduct its business in substantially the same manner and in substantially the same fields of enterprise as it is presently conducted and do all things necessary to remain duly incorporated or organized, validly existing and (to the extent such concept applies to such entity) in good standing as a domestic corporation, partnership or limited liability company in its jurisdiction of incorporation or organization, as the case may be, and maintain all requisite authority to conduct its business in each jurisdiction in which its business is conducted, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
. The Borrower will, and will cause each Subsidiary to, timely file complete and correct United States federal and applicable foreign, state and local tax returns required by law and pay when due all taxes, assessments and governmental charges and levies upon it or its income, profits or Property, except those which are being contested in good faith by appropriate proceedings and with respect to which adequate reserves have been set aside in accordance with Agreement Accounting Principles.
. The Borrower will, and will cause each Subsidiary to, maintain with financially sound and reputable insurance companies insurance on all their Property in such amounts and covering such risks as is consistent with sound business practice, and the Borrower will furnish to any Lender upon request full information as to the insurance carried.
. The Borrower will, and will cause each Subsidiary to, comply in all material respects with all laws, rules, regulations, orders, writs, judgments, injunctions, decrees or awards to which it may be subject including all Environmental Laws.
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. The Borrower will, and will cause each Subsidiary to, do all things necessary to maintain, preserve, protect and keep its Property in good repair, working order and condition, and make all necessary and proper repairs, renewals and replacements so that its business carried on in connection therewith may be properly conducted at all times.
. The Borrower will, and will cause each Subsidiary to, permit the Administrative Agent and the Lenders, by their respective representatives and agents, to inspect any of the Property, books and financial records of the Borrower and each Subsidiary, to examine and make copies of the books of accounts and other financial records of the Borrower and each Subsidiary, and to discuss the affairs, finances and accounts of the Borrower and each Subsidiary with, and to be advised as to the same by, their respective officers at such reasonable times and intervals as the Administrative Agent or any Lender may designate.
. Without the prior written consent of the Required Lenders (such consent not to be unreasonably withheld), the Borrower will not, nor will it permit any Material Subsidiary to, merge or consolidate with or into any other Person, or sell or otherwise dispose of all or substantially all of its Property to another Person except that (i) a Material Subsidiary may merge into the Borrower or a Wholly-Owned Subsidiary, (ii) a Material Subsidiary may dispose of all or substantially all of its Property to the Borrower or a Wholly-Owned Subsidiary, or (iii) the Borrower or any Subsidiary may sell, transfer, contribute, convey or dispose of accounts, general intangibles and/or chattel paper (each as defined in Article 9 of the Uniform Commercial Code) and associated collateral, lockbox and other collection accounts, records and/or proceeds in connection with a Permitted Receivables Securitization.
. The Borrower will not, nor will it permit any Material Subsidiary to, create, incur, or suffer to exist any Lien in, of or on the Property of the Borrower or any Material Subsidiary, except:
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. The Borrower will not permit the ratio, determined as of the end of each of its fiscal quarters, of (i) Consolidated Indebtedness to (ii) Consolidated Total Capitalization to be greater than 0.65 to 1.0.
. Without the prior written consent of the Required Lenders (such consent not to be unreasonably withheld), the Borrower will not, nor will it permit any Subsidiary to, make or suffer to exist any Investments (including loans and advances to, and other Investments in, Subsidiaries, or commitments therefor, or to create any Subsidiary or to become or remain a partner in any partnership or joint venture), or to make any Acquisition of any Person, except:
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. The Borrower will not, nor will it permit any Material Subsidiary to, become a party to any agreement prohibiting or restricting the ability of such Material Subsidiary to declare or pay dividends to the Borrower, except as disclosed in Schedule 5.12 , other than prohibitions or restrictions in connection with a Permitted Receivables Securitization.
. The Borrower will not, and will not permit any Subsidiary to, enter into any transaction (including the purchase or sale of any Property or service) with, or make any payment or transfer to, any Affiliate that is not a Subsidiary except in the ordinary course of business and pursuant to the reasonable requirements of the Borrowers or such Subsidiarys business and upon fair and reasonable terms no less favorable to the Borrower or such Subsidiary than the Borrower or such Subsidiary would obtain in a comparable arms-length transaction.
. The Borrower will, and will cause each of its Subsidiaries to, (i) refrain from doing business in a Sanctioned Country or with a Sanctioned Person in violation of the economic sanctions of the United States administered by OFAC, and (ii) provide, to the extent commercially reasonable, such information and take such actions as are reasonably requested by the Administrative Agent or any Lender in order to assist the Administrative Agent and the Lenders in maintaining compliance with the PATRIOT Act.
The occurrence of any one or more of the following events shall constitute a Default:
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. Neither this Agreement or any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders (or by the Administrative Agent at the direction or with the consent of the Required Lenders); provided , however , that no such agreement shall:
. No delay or omission of the Lenders, the Swingline Lender, the LC Issuers or the Administrative Agent to exercise any right under the Loan Documents shall impair such right or be construed to be a waiver of any Default or an acquiescence therein, and the making of a Credit Extension notwithstanding the existence of a Default or the inability of the Borrower to satisfy the conditions precedent to such Credit Extension shall not constitute any waiver or acquiescence. Any single or partial exercise of any such right shall not preclude other or further exercise thereof or the exercise of any other right, and no waiver, amendment or other variation of the terms, conditions or provisions of the Loan Documents whatsoever shall be valid unless in writing signed by the Lenders required pursuant to Section 8.2 , and then only to the extent specifically set forth in such writing. All remedies contained in the Loan Documents or by law afforded shall be cumulative and all shall be available to the Administrative Agent, the LC Issuers, the Swingline Lender and the Lenders until the Obligations have been paid in full.
. All representations and warranties of the Borrower contained in this Agreement shall survive the making of the Credit Extensions herein contemplated.
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. Anything contained in this Agreement to the contrary notwithstanding, neither the LC Issuers, the Swingline Lender nor any Lender shall be obligated to extend credit to the Borrower in violation of any limitation or prohibition provided by any applicable statute or regulation.
. Section headings in the Loan Documents are for convenience of reference only, and shall not govern the interpretation of any of the provisions of the Loan Documents.
. The Loan Documents embody the entire agreement and understanding among the Borrower, the Administrative Agent, the LC Issuers, the Swingline Lender and the Lenders and supersede all prior agreements and understandings among the Borrower, the Administrative Agent, the LC Issuers, the Swingline Lender and the Lenders relating to the subject matter thereof other than the Fee Letters.
. The respective obligations of the Lenders hereunder are several and not joint and no Lender shall be the partner or agent of any other (except to the extent to which the Administrative Agent is authorized to act as such). The failure of any Lender to perform any of its obligations hereunder shall not relieve any other Lender from any of its obligations hereunder. This Agreement shall not be construed so as to confer any right or benefit upon any Person other than the parties to this Agreement and any Person indemnified under Section 9.6 or any other provision of this Agreement, and their respective successors and assigns, provided that the parties hereto expressly agree that each Joint Lead Arranger shall enjoy the benefits of the provisions of Sections 9.6 , 9.10 and 10.11 to the extent specifically set forth therein and shall have the right to enforce such provisions on its own behalf and in its own name to the same extent as if it were a party to this Agreement.
. All statements, notices, closing documents, and requests hereunder shall be furnished to the Administrative Agent with sufficient counterparts so that the Administrative Agent may furnish one to each of the Lenders.
. Except as provided to the contrary herein, all accounting terms used herein shall be interpreted and all accounting determinations hereunder shall be made in accordance with Agreement Accounting Principles.
. Any provision in any Loan Document that is held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or invalid without affecting the remaining provisions in that jurisdiction or the operation, enforceability, or validity of that provision in any other jurisdiction, and to this end the provisions of all Loan Documents are declared to be severable.
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. The relationship between the Borrower on the one hand and the Lenders, the Swingline Lender, the LC Issuers and the Administrative Agent on the other hand shall be solely that of borrower and lender. None of the Administrative Agent, either Joint Lead Arranger, any LC Issuer, the Swingline Lender or any Lender shall have any fiduciary responsibilities to the Borrower. None of the Administrative Agent, either Joint Lead Arranger, any LC Issuer, the Swingline Lender or any Lender undertakes any responsibility to the Borrower to review or inform the Borrower of any matter in connection with any phase of the Borrowers business or operations. The Borrower agrees that no Indemnitee shall have liability to the Borrower (whether sounding in tort, contract or otherwise) for losses suffered by the Borrower in connection with, arising out of, or in any way related to, the transactions contemplated and the relationship established by the Loan Documents, or any act, omission or event occurring in connection therewith, unless it is determined in a final non-appealable judgment by a court of competent jurisdiction that such losses resulted from the gross negligence or willful misconduct of the party from which recovery is sought. No Indemnitee shall have any liability with respect to, and the Borrower hereby waives, releases and agrees not to sue for, (i) any special, indirect, consequential or punitive damages suffered by the Borrower in connection with, arising out of, or in any way related to the Loan Documents or the transactions contemplated thereby, and (ii) any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. The provisions of this Section 9.10 shall survive the termination of this Agreement.
. Each Lender agrees to hold any confidential information which it may receive from the Borrower pursuant to this Agreement in confidence, except for disclosure (i) to its Affiliates and to other Lenders and their respective Affiliates, (ii) to legal counsel, accountants, and other professional advisors to such Lender or to a Transferee, (iii) to regulatory officials having jurisdiction over such Lender or any of its Affiliates, (iv) as required by law, regulation, or legal process, (v) as required in connection with any legal proceeding to which such Lender is a party, (vi) to such Lenders direct or indirect contractual counterparties in Rate Management Transactions or to legal counsel, accountants and other professional advisors to such counterparties, (vii) permitted by Section 12.4 and (viii) in connection with the exercise of rights or remedies hereunder or any action or proceeding relating to this agreement. In the case of any disclosure pursuant to clause (i) , (ii) , (vi) or (vii) above, each Person to whom such disclosure is made will be informed of the confidential nature of such information and instructed to keep such information confidential. In the case of any requested disclosure pursuant to clause (iv) or (v) above, the applicable Lender will give prompt notice of the request to the Borrower (unless prohibited by the terms of the applicable law, regulation, subpoena or other legal process or proceeding) so that the Borrower may endeavor to obtain a protective order or other assurance of confidential treatment.
. Each Lender hereby represents that it is not relying on or looking to any margin stock (as defined in Regulation U of the Board of Governors of the Federal Reserve System) for the repayment of the Credit Extensions provided for herein.
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. The Borrower and each Lender hereby acknowledge and agree that Wachovia and/or its Affiliates from time to time may hold investments in, make other loans to or have other relationships with the Borrower and its Affiliates.
. Each Lender that is subject to the PATRIOT Act and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the PATRIOT Act, it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower in accordance with the PATRIOT Act.
. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one agreement, and any of the parties hereto may execute this Agreement by signing any such counterpart. This Agreement shall be effective when it has been executed by the Borrower, the Administrative Agent, the LC Issuers, the Swingline Lender and the Lenders as of the Closing Date and each party has notified the Administrative Agent by facsimile transmission or telephone that it has taken such action.
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. Wachovia Bank, National Association is hereby appointed by each of the Lenders as its contractual representative (herein referred to as the Administrative Agent ) hereunder and under each other Loan Document, and each of the Lenders (for purposes of this Article, references to Lenders shall also mean each LC Issuer and the Swingline Lender) irrevocably authorizes the Administrative Agent to act as the contractual representative of such Lender with the rights and duties expressly set forth herein and in the other Loan Documents. The Administrative Agent agrees to act as such contractual representative upon the express conditions contained in this Article 10 . Notwithstanding the use of the defined term Administrative Agent , it is expressly understood and agreed that the Administrative Agent shall not have any fiduciary responsibilities to any Lender by reason of this Agreement or any other Loan Document and that the Administrative Agent is merely acting as the contractual representative of the Lenders with only those duties as are expressly set forth in this Agreement and the other Loan Documents. In its capacity as the Lenders contractual representative, the Administrative Agent (i) does not hereby assume any fiduciary duties to any of the Lenders, (ii) is a representative of the Lenders within the meaning of Section 9-105 of the Uniform Commercial Code and (iii) is acting as an independent contractor, the rights and duties of which are limited to those expressly set forth in this Agreement and the other Loan Documents. Each of the Lenders hereby agrees to assert no claim against the Administrative Agent on any agency theory or any other theory of liability for breach of fiduciary duty, all of which claims each Lender hereby waives.
. The Administrative Agent shall have and may exercise such powers under the Loan Documents as are specifically delegated to the Administrative Agent by the terms of each thereof, together with such powers as are reasonably incidental thereto. The Administrative Agent shall have no implied duties to the Lenders, or any obligation to the Lenders to take any action thereunder except any action specifically provided by the Loan Documents to be taken by the Administrative Agent.
. Neither the Administrative Agent nor any of its directors, officers, agents or employees shall be liable to the Borrower, the Lenders or any Lender for any action taken or omitted to be taken by it or them hereunder or under any other Loan Document or in connection herewith or therewith except to the extent such action or inaction is determined in a final non-appealable judgment by a court of competent jurisdiction to have arisen from the gross negligence or willful misconduct of such Person.
Neither the Administrative Agent nor any of its directors, officers, agents or employees shall be responsible for or have any duty to ascertain, inquire into, or verify (a) any statement, warranty or representation made in connection with any Loan Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements of any obligor under any Loan Document, including any agreement by an obligor to furnish information directly to each Lender; (c) the satisfaction of any condition specified in Article 4 , except receipt of items required to be delivered solely to the Administrative Agent; (d) the existence or possible existence of any Default or Unmatured Default; (e) the validity, enforceability, effectiveness, sufficiency or genuineness of any Loan Document or any other instrument or writing furnished in connection therewith; (f) the value, sufficiency, creation, perfection or priority of any Lien in any collateral security; or (g) the financial condition of the Borrower or any guarantor of any of the Obligations or of any of the Borrowers or any such guarantors respective Subsidiaries. The Administrative Agent shall have no duty to disclose to the Lenders information that is not required to be furnished by the Borrower to the Administrative Agent at such time, but is voluntarily furnished by the Borrower to the Administrative Agent (either in its capacity as Administrative Agent or in its individual capacity).
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. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder and under any other Loan Document in accordance with written instructions signed by the Required Lenders, and such instructions and any action taken or failure to act pursuant thereto shall be binding on all of the Lenders. The Lenders hereby acknowledge that the Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement or any other Loan Document unless it shall be requested in writing to do so by the Required Lenders. The Administrative Agent shall be fully justified in failing or refusing to take any action hereunder and under any other Loan Document unless it shall first be indemnified to its satisfaction by the Lenders pro rata against any and all liability, cost and expense that it may incur by reason of taking or continuing to take any such action.
. The Administrative Agent may execute any of its duties as Administrative Agent hereunder and under any other Loan Document by or through employees, agents, and attorneys-in-fact and shall not be answerable to the Lenders (except as to money or securities received by it or its authorized agents) for the default or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. The Administrative Agent shall be entitled to advice of counsel concerning the contractual arrangement between the Administrative Agent and the Lenders and all matters pertaining to the Administrative Agents duties hereunder and under any other Loan Document.
. The Administrative Agent shall be entitled to rely upon any Note, notice, consent, certificate, affidavit, letter, telegram, statement, paper or document believed by it to be genuine and correct and to have been signed or sent by the proper person or persons, and, in respect to legal matters, upon the opinion of counsel selected by the Administrative Agent, which counsel may be employees of the Administrative Agent.
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. The Lenders agree to reimburse and indemnify the Administrative Agent ratably in proportion to their respective Commitments (or, if the Commitments have been terminated, in proportion to their Commitments immediately prior to such termination) (i) for any amounts not reimbursed by the Borrower for which the Administrative Agent is entitled to reimbursement by the Borrower under the Loan Documents, (ii) for any other expenses incurred by the Administrative Agent on behalf of the Lenders, in connection with the preparation, execution, delivery, administration and enforcement of the Loan Documents (including for any expenses incurred by the Administrative Agent in connection with any dispute between the Administrative Agent and any Lender or between two or more of the Lenders) and (iii) for any liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against the Administrative Agent in any way relating to or arising out of the Loan Documents or any other document delivered in connection therewith or the transactions contemplated thereby (including for any such amounts incurred by or asserted against the Administrative Agent in connection with any dispute between the Administrative Agent and any Lender or between two or more of the Lenders), or the enforcement of any of the terms of the Loan Documents or of any such other documents, provided that (x) no Lender shall be liable for any of the foregoing to the extent any of the foregoing is found in a final non-appealable judgment by a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of the Administrative Agent and (y) any indemnification required pursuant to Section 0 shall, notwithstanding the provisions of this Section 10.8 , be paid by the relevant Lender in accordance with the provisions thereof. The obligations of the Lenders under this Section 10.8 shall survive payment of the Obligations and termination of this Agreement.
. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Unmatured Default hereunder unless the Administrative Agent has received written notice from a Lender or the Borrower referring to this Agreement, describing such Default or Unmatured Default and stating that such notice is a notice of default. In the event that the Administrative Agent receives such a notice, the Administrative Agent shall give prompt notice thereof to the Lenders.
. In the event the Administrative Agent is a Lender, the Administrative Agent shall have the same rights and powers hereunder and under any other Loan Document with respect to its Commitment and its Loans as any Lender and may exercise the same as though it were not the Administrative Agent, and the term Lender or Lenders shall, at any time when the Administrative Agent is a Lender, unless the context otherwise indicates, include the Administrative Agent in its individual capacity. The Administrative Agent and its Affiliates may accept deposits from, lend money to, and generally engage in any kind of trust, debt, equity or other transaction, in addition to those contemplated by this Agreement or any other Loan Document, with the Borrower or any of its Subsidiaries in which the Borrower or such Subsidiary is not restricted hereby from engaging with any other Person. The Administrative Agent, in its individual capacity, is not obligated to remain a Lender.
. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent, either Joint Lead Arranger or any other Lender and based on the financial statements prepared by the Borrower and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement and the other Loan Documents. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent, either Joint Lead Arranger or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement and the other Loan Documents.
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. The Administrative Agent may resign at any time by giving written notice thereof to the Lenders and the Borrower, such resignation to be effective upon the appointment of a successor Administrative Agent or, if no successor Administrative Agent has been appointed, forty-five (45) days after the retiring Administrative Agent gives notice of its intention to resign. The Administrative Agent may be removed at any time with or without cause by written notice received by the Administrative Agent from the Required Lenders, such removal to be effective on the date specified by the Required Lenders. Upon any such resignation or removal, the Required Lenders shall have the right to appoint, on behalf of the Borrower and the Lenders, a successor Administrative Agent. If no successor Administrative Agent shall have been so appointed by the Required Lenders within thirty (30) days after the resigning Administrative Agents giving notice of its intention to resign, then the resigning Administrative Agent may appoint, on behalf of the Borrower and the Lenders, a successor Administrative Agent. Notwithstanding the previous sentence, the Administrative Agent may at any time without the consent of the Borrower or any Lender, appoint any of its Affiliates, which is a commercial bank as a successor Administrative Agent hereunder. If the Administrative Agent has resigned or been removed and no successor Administrative Agent has been appointed, the Lenders may perform all the duties of the Administrative Agent hereunder and the Borrower shall make all payments in respect of the Obligations to the applicable Lender and for all other purposes shall deal directly with the Lenders. No successor Administrative Agent shall be deemed to be appointed hereunder until such successor Administrative Agent has accepted the appointment. Any such successor Administrative Agent shall be a commercial bank having capital and retained earnings of at least $100,000,000. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the resigning or removed Administrative Agent. Upon the effectiveness of the resignation or removal of the Administrative Agent, the resigning or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the Loan Documents. After the effectiveness of the resignation or removal of an Administrative Agent, the provisions of this Article 10 shall continue in effect for the benefit of such Administrative Agent in respect of any actions taken or omitted to be taken by it while it was acting as the Administrative Agent hereunder and under the other Loan Documents. In the event that there is a successor to the Administrative Agent by merger, or the Administrative Agent assigns its duties and obligations to an Affiliate pursuant to this Section 10.12 , then the term Prime Rate as used in this Agreement shall mean the prime rate, base rate or other analogous rate of the new Administrative Agent.
. The Borrower agrees to pay to the Administrative Agent and each Joint Lead Arranger, for their accounts, the fees agreed to by the Borrower, the Administrative Agent and/or such Joint Lead Arrangers pursuant to the Fee Letters.
. The Borrower and the Lenders agree that the Administrative Agent may delegate any of its duties under this Agreement to any of its Affiliates. Any such Affiliate (and such Affiliates directors, officers, agents and employees) which performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver and other protective provisions to which the Administrative Agent is entitled under Article 9 and Article 10 .
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. No Lender identified on the cover page, the signature pages or otherwise in this Agreement, or in any document related hereto, as being the Syndication Agent or a Documentation Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement in such capacity other than those applicable to all Lenders. Each Lender acknowledges that it has not relied, and will not rely, on any Person so identified in deciding to enter into this Agreement or in taking or refraining from taking any action hereunder or pursuant hereto.
. The provisions of this Article 10 (other than Section 10.10 ) shall apply to each LC Issuer and the Swingline Lender mutatis mutandis to the same extent as such provisions apply to the Administrative Agent.
. In addition to, and without limitation of, any rights (including other rights of setoff) of the Lenders under applicable law, if the Borrower becomes insolvent, however evidenced, or any Default occurs, any and all deposits (including all account balances, whether provisional or final and whether or not collected or available) and any other Indebtedness at any time held or owing by any Lender, any LC Issuer, the Swingline Lender or any of their respective Affiliates to or for the credit or account of the Borrower may be offset and applied toward the payment of the Obligations owing to such Lender, such LC Issuer, the Swingline Lender or any such Affiliate whether or not the Obligations, or any part thereof, shall then be due. The Swingline Lender, each Lender and each LC Issuer agrees to notify the Borrower and the Administrative Agent in writing promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application.
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. If any Lender, whether by setoff or otherwise, has payment made to it upon its Outstanding Credit Exposure (other than payments received pursuant to Sections 3.1 , 3.2 , 3.4 or 3.5 ) in a greater proportion than that received by any other Lender, such Lender agrees, promptly upon demand, to purchase a portion of the Aggregate Outstanding Credit Exposure held by the other Lenders so that after such purchase each Lender will hold its Pro Rata Share of the Aggregate Outstanding Credit Exposure. If any Lender, whether in connection with setoff or amounts which might be subject to setoff or otherwise, receives collateral or other protection for its Obligations or such amounts which may be subject to setoff, such Lender agrees, promptly upon demand, to take such action necessary such that all Lenders share in the benefits of such collateral ratably in proportion to their respective Pro Rata Share of the Aggregate Outstanding Credit Exposure. In case any such payment is disturbed by legal process, or otherwise, appropriate further adjustments shall be made. If an amount to be setoff is to be applied to Indebtedness of the Borrower to a Lender other than Indebtedness comprised of the Outstanding Credit Exposure of such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness comprised of such Outstanding Credit Exposure.
. The terms and provisions of the Loan Documents shall be binding upon and inure to the benefit of the Borrower and the Lenders and their respective successors and assigns, except that (i) the Borrower shall not have the right to assign its rights or obligations under the Loan Documents and (ii) any assignment by any Lender must be made in compliance with Section 12.3 . The parties to this Agreement acknowledge that clause (ii) of the foregoing sentence relates only to absolute assignments and does not prohibit assignments creating security interests, including (x) any pledge or assignment by any Lender of all or any portion of its rights under this Agreement and any Note to a Federal Reserve Bank or (y) in the case of a Lender which is a fund, any pledge or assignment of all or any portion of its rights under this Agreement and any Note to its trustee in support of its obligations to its trustee; provided that no such pledge or assignment creating a security interest shall release the transferor Lender from its obligations hereunder unless and until the parties thereto have complied with the provisions of Section 12.3 . The Administrative Agent may treat the Person which made any Loan or which holds any Note as the owner thereof for all purposes hereof unless and until such Person complies with Section 12.3 ; provided that the Administrative Agent may in its discretion (but shall not be required to) follow instructions from the Person which made any Loan or which holds any Note to direct payments relating to such Loan or Note to another Person. Any assignee of the rights to any Loan or any Note agrees by acceptance of such assignment to be bound by all the terms and provisions of the Loan Documents. Any request, authority or consent of any Person, who at the time of making such request or giving such authority or consent is the owner of the rights to any Loan (whether or not a Note has been issued in evidence thereof), shall be conclusive and binding on any subsequent holder or assignee of the rights to such Loan.
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. The Borrower authorizes each Lender to disclose to any Participant or Purchaser or any other Person acquiring an interest in the Loan Documents by operation of law (each a Transferee ) and any prospective Transferee any and all information in such Lenders possession concerning the creditworthiness of the Borrower and its Subsidiaries, including any information contained in any Reports; provided that each Transferee and prospective Transferee agrees to be bound by Section 9.11 of this Agreement.
. If any interest in any Loan Document is transferred to any Transferee, which is organized under the laws of any jurisdiction other than the United States or any State thereof, the transferor Lender shall cause such Transferee, concurrently with the effectiveness of such transfer, to comply with the provisions of Section 3.5(d) and such Transferee shall not be entitled to any additional payments under Section 3.5 , (i) unless, and only to the extent, that the transferor Lender was entitled to amounts under Section 3.5 , or (ii) in the event that payments to the Transferee were not subject to any withholding at the time of transfer and became subject to withholding as a result of a Change In Law.
. The Borrower, the Administrative Agent and any Lender may each change the address for service of notice upon it by a notice in writing to the other parties hereto.
. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL (EXCEPT AS MAY BE EXPRESSLY OTHERWISE PROVIDED IN ANY LOAN DOCUMENT) BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAW RULES); PROVIDED THAT EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT OR APPLICATION THEREFOR OR, IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE INTERNATIONAL STANDBY PRACTICES OF THE INTERNATIONAL CHAMBER OF COMMERCE, AS IN EFFECT FROM TIME TO TIME (THE ISP ), AND, AS TO MATTERS NOT GOVERNED BY THE ISP, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAW RULES).
. THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NORTH CAROLINA SITTING IN MECKLENBURG COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE WESTERN DISTRICT OF NORTH CAROLINA, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE ADMINISTRATIVE AGENT, ANY LC ISSUER OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER AGAINST THE ADMINISTRATIVE AGENT, ANY LC ISSUER OR ANY LENDER OR ANY AFFILIATE OF THE ADMINISTRATIVE AGENT, ANY LC ISSUER OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN CHARLOTTE, NORTH CAROLINA.
66 |
. THE BORROWER, THE ADMINISTRATIVE AGENT, EACH LC ISSUER AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
[Signatures Follow]
67 |
IN WITNESS WHEREOF , the Borrower, the Lenders , the Swingline Lender , the LC Issuers and the Administrative Agent have executed this Agreement as of the date first above written.
IDAHO POWER COMPANY
By: /s/ Steven R. Keen
Name: Steven R. Keen
Title: Vice President and Treasurer
S-1 |
WACHOVIA BANK, NATIONAL ASSOCIATION , as a Lender, Swingline Lender, LC Issuer and as Administrative Agent
By: /s/ Hank Biedrzycki
Name: Hank Biedrzycki
Title: Director
S-2 |
JPMORGAN CHASE BANK, N.A. , as Syndication Agent and as a Lender
By: /s/ Helen D. Davis
Name: Helen D. Davis
Title: Vice President
S-3 |
KEYBANK NATIONAL ASSOCIATION , as a Documentation Agent and as a Lender
By: /s/ Keven D. Smith
Name: Keven D. Smith
Title: Senior Vice President
S-4 |
BANK OF AMERICA, N.A. , as a Documentation Agent and as a Lender
By: /s/ James J. Teichman
Name: James J. Teichman
Title: Vice President
S-5 |
US BANK NATIONAL ASSOCIATION , as a Documentation Agent and as a Lender
By: /s/ James W. Henken
Name: James W. Henken
Title: Vice President
S-6 |
WELLS FARGO BANK, N.A.
By: /s/ Mark W. Lliteras
Name: Mark W. Lliteras
Title: Executive Vice President
S-7 |
SUNTRUST BANK
Name: Yann Pirio
Title: Vice President
S-8 |
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., SEATTLE BRANCH
By: /s/ Tsuguyuki Umene
Name: Tsuguyuki Umene
Title: General Manager
S-9 |
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Efrain Soto
Name: Efrain Soto
Title: Vice President
S-10 |
THE BANK OF NEW YORK
By: /s/ Peter Keller
Name: Peter Keller
Title: Managing Director Energy Division
S-11 |
ROYAL BANK OF CANADA
By: /s/ David A. McCluskey
Name: David A. McCluskey
Title: Authorized Signatory
S-12 |
SCHEDULE I
PRICING SCHEDULE
|
A/A2 or above |
A-/A3 |
BBB+/Baa1 |
BBB/Baa2 |
BBB-/Baa3 |
<BBB-/Baa3 |
Applicable Margin |
LEVEL I STATUS |
LEVEL II STATUS |
LEVEL III STATUS |
LEVEL IV STATUS |
LEVEL V STATUS |
LEVEL VI STATUS |
Eurodollar Rate |
0.150% |
0.190% |
0.280% |
0.360% |
0.400% |
0.575% |
Floating Rate |
0% |
0% |
0% |
0% |
0% |
0.50% |
Applicable Fee Rates |
LEVEL I STATUS |
LEVEL II STATUS |
LEVEL III STATUS |
LEVEL IV STATUS |
LEVEL V STATUS |
LEVEL VI STATUS |
Facility Fee |
0.050% |
0.060% |
0.070% |
0.090% |
0.125% |
0.175% |
Utilization Fee |
0.050% |
0.050% |
0.050% |
0.050% |
0.100% |
0.100% |
For the purposes of this Schedule, the following terms have the following meanings, subject to the final paragraph of this Schedule:
Level I Status exists at any date if, on such date, the Borrowers Moodys Rating is A2 or better or the Borrowers S&P Rating is A or better.
Level II Status exists at any date if, on such date, (i) the Borrower has not qualified for Level I Status and (ii) the Borrowers Moodys Rating is A3 or better or the Borrowers S&P Rating is A- or better.
Level III Status exists at any date if, on such date, (i) the Borrower has not qualified for Level I Status or Level II Status and (ii) the Borrowers Moodys Rating is Baa1 or better or the Borrowers S&P Rating is BBB+ or better.
Level IV Status exists at any date if, on such date, (i) the Borrower has not qualified for Level I Status, Level II Status or Level III Status and (ii) the Borrowers Moodys Rating is Baa2 or better or the Borrowers S&P Rating is BBB or better.
Level V Status exists at any date if, on such date, (ii) the Borrower has not qualified for Level I Status, Level II Status, Level III Status or Level IV Status and (ii) the Borrowers Moodys Rating is Baa3 or better or the Borrowers S&P Rating is BBB- or better.
Level VI Status exists at any date if, on such date, the Borrower has not qualified for Level I Status, Level II Status, Level III Status, Level IV Status or Level V Status.
I-1 |
C-1023995v4 18445.00012
Moodys Rating means, at any time, the rating issued by Moodys Investors Service, Inc. and then in effect with respect to the Borrowers senior unsecured long-term debt securities without third-party credit enhancement.
S&P Rating means, at any time, the rating issued by Standard and Poors Rating Services, a division of The McGraw Hill Companies, Inc., and then in effect with respect to the Borrowers senior unsecured long-term debt securities without third-party credit enhancement.
Status means either Level I Status, Level II Status, Level III Status, Level IV Status, Level V Status or Level VI Status.
The Applicable Margin and applicable fee rates shall be determined in accordance with the foregoing table based on the Borrowers Status as determined from its then-current Moodys and S&P Ratings. The credit rating in effect on any date for the purposes of this Schedule is that in effect at the close of business on such date. If at any time the Borrower has no Moodys Rating or no S&P Rating, Level VI Status shall exist.
If the Borrower is split-rated and the ratings differential is one level, the higher rating will apply. If the Borrower is split-rated and the ratings differential is two levels or more, the intermediate rating at the midpoint will apply. If there is no midpoint, the higher of the two intermediate ratings will apply.
I-2 |
C-1023995v4 18445.00012
SCHEDULE II
COMMITMENTS
Lender |
Commitment |
Wachovia Bank, National Association |
$39,375,000 |
JPMorgan Chase Bank, N.A. |
$39,375,000 |
Bank of America, N.A. |
$35,250,000 |
Key Bank National Association |
$35,250,000 |
US Bank, National Association |
$35,250,000 |
Wells Fargo Bank, N.A. |
$35,250,000 |
Union Bank of California, N.A. |
$19,875,000 |
The Bank of Tokyo-Mitsubishi UFJ, Ltd., Seattle Branch |
$19,875,000 |
SunTrust Bank |
$13,500,000 |
Royal Bank of Canada |
$13,500,000 |
The Bank of New York |
$13,500,000 |
TOTAL |
$ 300,000,000 |
II-1 |
C-1023995v4 18445.00012
SCHEDULE 5.8
SUBSIDIARIES AND OTHER INVESTMENTS
(As of December 31, 2006)
Investment In |
Jurisdiction of Organization |
Owned By |
Amount of Investment |
Percent Ownership |
|
||||
Idaho Energy Resources Co. |
Wyoming |
Idaho Power Company |
$51,914,196 |
100%
|
Schedule 5.8
SCHEDULE 5.12
MATERIAL AGREEMENTS
None.
Schedule 5.12
SCHEDULE 5.14
INDEBTEDNESS AND LIENS
Following is a list of existing liens of the Borrower and Subsidiaries:
Borrower:
Indebtedness Owed To : Bondholders pursuant to that certain Mortgage and Deed of Trust, dated as of October 1, 1937 between Borrower and Deutsche Bank Trust Company Americas (formerly Bankers Trust Company) and R.G. Page (Stanley Burg, successor individual trustee), as Trustee, as supplemented and amended.
Property Encumbered : All existing and after-acquired real and personal property of Borrower.
Amount of Indebtedness : The aggregate principal amount of Idaho Power Company First Mortgage Bonds outstanding as of December 31, 2006 was $951.1 million. The amount of First Mortgage Bonds issuable by Borrower, giving effect to the Forty-second Supplemental Indenture, is limited to a maximum of $1.5 billion, but subject to increase at any time and may be further limited by property, earnings and other provisions of the Mortgage.
Schedule 5.14
SCHEDULE 13.1
NOTICE ADDRESSES
Address for notices for Borrower:
Idaho Power Company
1221 West Idaho Street
P.O. Box 70
Boise, Idaho 83707
Attention: Steven R. Keen, Vice President and Treasurer
Telephone: 208-388-2600
Fax: 208-388-2879
Email: skeen@idahopower.com
Address for notices as Administrative Agent:
Wachovia Bank, National Association
201 S. College St., CP−8
Charlotte, NC 28288−0680
Attention: Syndication Agency Services
Telephone: 704-383-3721
Fax: 704-383-0288
Address for notices as LC Issuer, Swingline Lender and Credit Contact:
Wachovia Bank, National Association
301 South College St., 6th Floor
Charlotte, NC 28288
Attention: Hank Biedrzycki, Director
Telephone: 704-374-4914
Fax: 704-383-6647
Email: hank.biedrzycki@wachovia.com
Schedule 13.1
EXHIBIT A
FORM OF OPINION
April 25, 2007
The Administrative Agent, the LC
Issuers
and the Lenders that are
are parties to the Credit
Agreement described below.
Gentlemen/Ladies:
I am counsel for Idaho Power Company, an Idaho corporation (the Borrower ), and have represented the Borrower in connection with its execution and delivery of an Amended and Restated Credit Agreement dated as of Apri1 25, 2007 (the Credit Agreement ) among the Borrower, the Lenders named therein, and Wachovia Bank, National Association, as Administrative Agent and as LC Issuer, and providing for Credit Extensions in an aggregate principal amount not exceeding $300,000,000 at any one time outstanding. All capitalized terms used in this opinion and not otherwise defined herein shall have the meanings attributed to them in the Credit Agreement.
I have examined the Borrowers Articles of Incorporation and By-Laws, the Loan Documents and such other matters of fact and law which I deem necessary in order to render this opinion. Based upon the foregoing, it is our opinion that:
1. Each of the Borrower and its Subsidiaries is a corporation, partnership or limited liability company duly and properly incorporated or organized, as the case may be, validly existing and (to the extent such concept applies to such entity) in good standing under the laws of its jurisdiction of incorporation or organization and has all requisite authority to conduct its business in each jurisdiction in which its business is conducted.
2. The execution and delivery by the Borrower of the Loan Documents and the performance by the Borrower of its obligations thereunder have been duly authorized by proper corporate proceedings on the part of the Borrower and will not:
a.
require any consent of the Borrowers shareholders or members (other
than any
such consent as has already been given and remains in full force and effect);
b. violate (i) any law, rule, regulation, order, writ, judgment, injunction, decree or award binding on the Borrower or any of its Subsidiaries or (ii) the Borrowers or any Subsidiarys articles or certificate of incorporation, partnership agreement, certificate of partnership, articles or certificate of organization, bylaws, or operating or other management agreement, as the case may be, or (iii) to the best of my knowledge, the provisions of any indenture, instrument or agreement to which the Borrower or any of its Subsidiaries is a party or is subject, or by which it, or its Property, is bound, or conflict with or constitute a default thereunder; or
c. result in, or require, the creation or imposition of any Lien in, of or on the Property of the Borrower or a Subsidiary pursuant to the terms of any indenture, instrument or agreement binding upon the Borrower or any of its Subsidiaries.
3. The Loan Documents have been duly executed and delivered by the Borrower.
4. Except as set forth in the financial statements referred to in Section 5.4 of the Credit Agreement, there is no litigation, arbitration, governmental investigation, proceeding or inquiry pending or, to the best of our knowledge after due inquiry, threatened against the Borrower or any of its Subsidiaries which, if adversely determined, could reasonably be expected to have a Material Adverse Effect.
5. No order, consent, adjudication, approval, license, authorization, or validation of, or filing, recording or registration with, or exemption by, or other action in respect of any governmental or public body or authority, or any subdivision thereof, which has not been obtained by the Borrower or any of its Subsidiaries, is required to be obtained by the Borrower or any of its Subsidiaries in connection with the execution and delivery of the Loan Documents, the borrowings under the Credit Agreement, the payment and performance by the Borrower of the Obligations, or the legality, validity, binding effect or enforceability of any of the Loan Documents or the Obligations incurred thereunder; provided, however, that with respect to the payment and performance by the Borrower on or after tile Borrower's senior-secured bond ratings drops below investment grade (BBB- or higher by Standard & Poor's Rating Service and Baa3 by Moody's Investors' Service, lnc., a "Downgrade"), and the legality, validity, binding effect or enforceability of any of the Loan Documents or the Obligations incurred thereunder on or after a Downgrade, this opinion is subject to the qualifications that (i) Order No. 30294 ("Idaho Order") of the Idaho Public Utilities Commission ("Idaho PUC") issued April 11, 2007 and Order No. 07-151 of the Public Utility Commission of Oregon ("Oregon PUC") issued April 16, 2007 each provide that the authority of the Borrower under such order exists, unless renewed or extended, only until the occurrence of a Downgrade; (ii) the Oregon statutes permit the issuance or renewal of indebtedness maturing not more than one year after the date of such issue or renewal without the approval of the Oregon PUC; and (iii) the Idaho Order provides that Borrower's authority will not terminate but will continue for a period of 364 days from any Downgrade, during which time Borrower is authorized to file a supplemental application with the Idaho PUC requesting continuation of its original authority to borrow under the Idaho Order notwithstanding the Downgrade. Notwithstanding the foregoing, any loss of regulatory authority in the States of Idaho and Oregon resulting from a Downgrade, would not affect the legality, validity, binding effect or enforceability of any of the Loan Documents or the Obligations incurred thereunder prior to the Downgrade.
6. Assuming the Borrower will comply with the provisions of the Credit Agreement relating to the use of proceeds and the percentage of its assets consisting of margin stock and assuming that none of the Lenders is a broker or dealer within the meaning of Regulation T of the Board of Governors of the Federal Reserve System, the execution and delivery of the Loan Documents by the Borrower and the making of Loans under the Credit Agreement will not violate Regulation T, U or X of the Board of Governors of the Federal Reserve System.
With the exception of paragraph 5, the opinions expressed above are limited to the corporate and other laws of the State of Idaho and the federal laws of the United States of America. This opinion may be relied upon by the Administrative Agent, the LC Issuer, the Lenders and their participants, assignees and other transferees.
Very truly yours,
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
To: The
Lenders parties to the
Credit Agreement Described Below
This Compliance Certificate is furnished pursuant to that certain Amended and Restated Credit Agreement dated as of April 25, 2007 (as amended or otherwise modified from time to time, the Credit Agreement ) among Idaho Power Company (the Borrower ), the lenders party thereto and Wachovia Bank, National Association, as Administrative Agent and as LC Issuer. Unless otherwise defined herein, capitalized terms used in this Compliance Certificate (and the attached schedule) have the meanings ascribed thereto in the Credit Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected ___________________of the Borrower;
2. I have reviewed the terms of the Credit Agreement and I have made, or have caused to be made under my supervision, a reasonable review of the transactions and conditions of the Borrower and its Subsidiaries during the accounting period covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I have no knowledge of, the existence of any condition or event which constitutes a Default or Unmatured Default during or at the end of the accounting period covered by the attached financial statements or as of the date of this Certificate, except as set forth below; and
4. Schedule I attached hereto sets forth financial data and computations evidencing the Borrowers compliance with Section 6.12 of the Credit Agreement, all of which data and computations are true, complete and correct.
Described below are the exceptions, if any, to paragraph 3 by listing, in detail, the nature of the condition or event, the period during which it has existed and the action which the Borrower has taken, is taking, or proposes to take with respect to each such condition or event:
The foregoing certifications, together with the computations set forth in Schedule I hereto and the financial statements delivered with this Certificate in support hereof, are made and delivered this _____ day of____________, ____.
IDAHO POWER COMPANY
By: ______________________________
Name: ______________________________
Title: ______________________________
SCHEDULE I
TO COMPLIANCE CERTIFICATE
LEVERAGE RATIO
as of ________, _____
(Section 6.12 of the Credit Agreement)
(1) Consolidated Indebtedness [1] : |
|
(a) Obligations for borrowed money |
$____________ |
(b) Obligations representing the deferred purchase price of Property or services (other than accounts payable arising in the ordinary course of such Person's business payable on terms customary in the trade) |
$____________ |
(c) Obligations, whether or not assumed, secured by Liens or payable out of the proceeds or production from Property now or hereafter owned or acquired by such Person |
$____________ |
(d) Obligations which are evidenced by notes, acceptances, or other instruments |
$____________ |
(e) Obligations of such Person to purchase securities or other Property arising out of or in connection with the sale of the same or substantially similar securities or Property |
$____________ |
(f) Capitalized Lease Obligations |
$____________ |
(g) Contingent Obligations |
$____________ |
(h) Obligations in respect of Letters of Credit |
$____________ |
(i) Rate Management Obligations |
$____________ |
(j) Preferred stock which is required by the terms thereof to be redeemed, or for which mandatory sinking fund payments are due, by a fixed date |
$____________ |
(k) Off-Balance Sheet Liabilities |
$____________ |
(l) Any other obligation for borrowed money or other financial accommodation which in accordance with Agreement Accounting Principles would be shown as a liability on the consolidated balance sheet of such Person |
$____________ |
(m) Amounts Outstanding under a Permitted Receivables Securitization |
$____________ |
(n) Total Consolidated indebtedness |
|
Add Lines 1(a) through 1(m) |
$ _________ |
(2) Consolidated Total Capitalization: |
|
(a) Consolidated indebtedness (from Line 1(n) above) |
$____________ |
(b) Consolidated Net Worth |
$____________ |
(c) Aggregate outstanding amount of Hybrid Securities |
$____________ |
(d) Total Capitalization |
|
Add Lines 2(a) through 2(c) |
$ _________ |
|
|
(3) Leverage Ratio: Divide Line 1(n) by Line 2(d) |
_ _________ |
(4) Maximum Leverage Ratio permitted by Section 6.12 of the Credit Agreement |
0.65 : 1.0 |
EXHIBIT C
FORM OF ASSIGNMENT AGREEMENT
This Assignment Agreement (this Assignment Agreement ) between ____________ _____________ (the Assignor ) and ________________________ (the Assignee ) is dated as of ___________, ____. The parties hereto agree as follows:
1. PRELIMINARY STATEMENT . The Assignor is a party to a Credit Agreement (as amended or otherwise modified from time to time, the Credit Agreement ) described in Item 1 of Schedule 1 attached hereto ( Schedule 1 ). Capitalized terms used herein and not otherwise defined herein shall have the meanings attributed to them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION . The Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases and assumes from the Assignor, an interest in and to the Assignors rights and obligations under the Credit Agreement and the other Loan Documents, such that after giving effect to such assignment the Assignee shall have purchased pursuant to this Assignment Agreement the percentage interest specified in Item 3 of Schedule 1 of all outstanding rights and obligations under the Credit Agreement and the other Loan Documents relating to the facilities listed in Item 3 of Schedule 1. The aggregate Commitment (or Outstanding Credit Exposure, if the applicable Commitment has been terminated) purchased by the Assignee hereunder is set forth in Item 4 of Schedule 1.
3. EFFECTIVE DATE . The effective date of this Assignment Agreement (the Effective Date ) shall be the later of the date specified in Item 5 of Schedule 1 or two Business Days (or such shorter period agreed to by the Agent) after this Assignment Agreement, together with any consents required under the Credit Agreement, are delivered to the Agent. In no event will the Effective Date occur if the payments required to be made by the Assignee to the Assignor on the Effective Date are not made on the proposed Effective Date.
4. PAYMENT OBLIGATIONS . In consideration for the sale and assignment of Outstanding Credit Exposure hereunder, the Assignee shall pay the Assignor, on the Effective Date, the amount agreed to by the Assignor and the Assignee. On and after the Effective Date, the Assignee shall be entitled to receive from the Agent all payments of principal, Reimbursement Obligations, interest and fees with respect to the interest assigned hereby. The Assignee will promptly remit to the Assignor any interest on Outstanding Credit Exposure and fees received from the Agent which relate to the portion of the Commitment or Outstanding Credit Exposure assigned to the Assignee hereunder for periods prior to the Effective Date and not previously paid by the Assignee to the Assignor. In the event that either party hereto receives any payment to which the other party hereto is entitled under this Assignment Agreement, then the party receiving such amount shall promptly remit it to the other party hereto.
5. RECORDATION FEE . Assignor and Assignee each agree to pay one-half of the recordation fee required to be paid to the Agent in connection with this Assignment Agreement unless otherwise specified in Item 6 of Schedule 1.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNORS LIABILITY . The Assignor represents and warrants that (i) it is the legal and beneficial owner of the interest being assigned by it hereunder, (ii) such interest is free and clear of any adverse claim created by the Assignor and (iii) the execution and delivery of this Assignment Agreement by the Assignor is duly authorized. It is understood and agreed that the assignment and assumption hereunder are made without recourse to the Assignor and that the Assignor makes no other representation or warranty of any kind to the Assignee. Neither the Assignor nor any of its officers, directors, employees, agents or attorneys shall be responsible for (i) the due execution, legality. validity, enforceability, genuineness, sufficiency or collectability of any Loan Document, including documents granting the Assignor and the other Lenders a security interest in assets of the Borrower or any guarantor, (ii) any representation, warranty or statement made in or in connection with any of the Loan Documents, (iii) the financial condition or creditworthiness of the Borrower or any guarantor, (iv) the performance of or compliance with any of the terms or provisions of any of the Loan Documents, (v) inspecting any of the property, books or records of the Borrower, (vi) the validity, enforceability, perfection, priority, condition, value or sufficiency of any collateral securing or purporting to secure the Loans or (vii) any mistake, error of judgment, or action taken or omitted to be taken in connection with the Loans or the Loan Documents.
7. REPRESENTATIONS AND UNDERTAKINGS OF THE ASSIGNEE . The Assignee (i) confirms that it has received a copy of the Credit Agreement, together with copies of the financial statements requested by the Assignee and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment Agreement, (ii) agrees that it will, independently and without reliance upon the Agent, the Assignor or any other Lender and based on such documents and information at it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, (iii) appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under the Loan Documents as are delegated to the Agent by the terms thereof, together with such powers as are reasonably incidental thereto, (iv) confirms that the execution and delivery of this Assignment Agreement by the Assignee is duly authorized, (v) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender, (vi) agrees that its payment instructions and notice instructions are as set forth in the attachment to Schedule 1, (vii) confirms that none of the funds, monies, assets or other consideration being used to make the purchase and assumption hereunder are plan assets as defined under ERISA and that its rights, benefits and interests in and under the Loan Documents will not be plan assets under ERISA, (viii) agrees to indemnify and hold the Assignor harmless against all losses, costs and expenses (including reasonable attorneys fees) and liabilities incurred by the Assignor in connection with or arising in any manner from the Assignees non-performance of the obligations assumed under this Assignment Agreement, and (ix) if applicable, attaches the forms prescribed by the Internal Revenue Service of the United States certifying that the Assignee is entitled to receive payments under the Loan Documents without deduction or withholding of any United States federal income taxes.
8. GOVERNING LAW . This Assignment Agreement shall be governed by the internal law, and not the law of conflicts, of the State of New York.
9. NOTICES . Notices shall be given under this Assignment Agreement in the manner set forth in the Credit Agreement. For the purpose hereof, the addresses of the parties hereto (until notice of a change is delivered) shall be the address set forth in the attachment to Schedule 1.
10. COUNTERPARTS; DELIVERY BY FACSIMILE . This Assignment Agreement may be executed in counterparts. Transmission by facsimile of an executed counterpart of this Assignment Agreement shall be deemed to constitute due and sufficient delivery of such counterpart and such facsimile shall be deemed to be an original counterpart of this Assignment Agreement.
IN WITNESS WHEREOF, the duly authorized officers of the parties hereto have executed this Assignment Agreement by executing Schedule 1 hereto as of the date first above written.
SCHEDULE
1
to Assignment Agreement
1. Description and Date of Credit Agreement: Amended and Restated Credit Agreement dated as of April 25, 2007 among Idaho Power Company, the Lenders party thereto and Wachovia Bank, National Association, as LC Issuer and as Administrative Agent.
2. Date of Assignment Agreement: ________________,
3. Amounts (As of Date of Item 2 Above):
|
|
Facility
|
Facility
|
Facility
|
Facility
|
|
a.
Assignees percentage of each Facility purchased under
|
_______% |
_______% |
_______% |
_______% |
|
b. Amount of each Facility purchased under the Assignment Agreement*** |
$_______ |
$_______ |
$_______ |
$_______ |
4. Assignees Commitment (or Outstanding Credit Exposure with respect to terminated Commitments) purchased hereunder: |
$_______________ |
|
|
||
5. Proposed Effective Date: |
________________ |
|
|
||
6. Non-standard Recordation Fee Arrangement |
N/A***
to pay 100% of fee]
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Accepted and Agreed:
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By: |
By: |
Title: |
Title: |
ACCEPTED AND CONSENTED TO BY
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ACCEPTED AND CONSENTED TO BY [NAME OF AGENT] |
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By: |
By: |
Title: |
Title: |
* Insert specific facility names per Credit Agreement
** Percentage taken to 10 decimal places
*** If fee is split 50-50, pick N/A as option
**** Delete if not required by Credit Agreement
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
ADMINISTRATIVE INFORMATION SHEET
Attach Assignors
Administrative Information Sheet, which must
include notice addresses for the Assignor and the Assignee
(Sample form shown below)
ASSIGNOR INFORMATION
Contact:
EXHIBIT D
FORM OF ACCOUNT DESIGNATION LETTER
April 25, 2007
Wachovia Bank, National
Association, as Agent
Charlotte Plaza Building, CP-8
201 South College Street
Charlotte, North Carolina 28288-0680
Attention: Syndication Agency Services
Ladies and Gentlemen:
Reference is made to the Amended and Restated Credit Agreement, dated as of April 25, 2007, among the undersigned, Idaho Power Company, as Borrower, the banks and other financial institutions parties thereto from time to time, and Wachovia Bank, National Association, as Administrative Agent (as amended, modified or supplemented from time to time, the Credit Agreement ). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement.
The undersigned hereby authorizes and directs the Administrative Agent to disburse any and all proceeds of the Loans under the Credit Agreement, as and when made from time to time, to the following accounts:
Bank Name:
ABA Routing No.:
Account No.:
Account Name:
Very truly yours,
IDAHO POWER COMPANY
By:
Name:
Title:
EXHIBIT E
FORM OF
REVOLVING NOTE
$ _______________, 2007
Charlotte, North Carolina
FOR VALUE RECEIVED, IDAHO POWER COMPANY , an Idaho corporation (the Borrower ), hereby promises to pay to the order of
_____________________________(the Lender ), at the offices of Wachovia Bank, National Association (the Administrative Agent ) located at One Wachovia Center, 301 South College Street, Charlotte, North Carolina (or at such other place or places as the Administrative Agent may designate), at the times and in the manner provided in the Amended and Restated Credit Agreement, dated as of April 25, 2007 (as amended, modified, restated or supplemented from time to time, the Credit Agreement ), among the Borrower, the Lenders from time to time parties thereto, and Wachovia Bank, National Association, as Administrative Agent, the principal sum of
_______________________
DOLLARS
($___________), or such lesser amount as
may constitute the unpaid principal amount of the Revolving Loans made by the
Lender, under the terms and conditions of this promissory note (this
Revolving
Note
) and the Credit Agreement. The defined terms in the Credit Agreement
are used herein with the same meaning. The Borrower also promises to pay
interest on the aggregate unpaid principal amount of this Revolving Note at the
rates applicable thereto from time to time as provided in the Credit Agreement.
This Revolving Note is one of a series of Revolving Notes referred to in the Credit Agreement and is issued to evidence the Revolving Loans made by the Lender pursuant to the Credit Agreement. All of the terms, conditions and covenants of the Credit Agreement are expressly made a part of this Revolving Note by reference in the same manner and with the same effect as if set forth herein at length, and any holder of this Revolving Note is entitled to the benefits of and remedies provided in the Credit Agreement and the other Credit Documents. Reference is made to the Credit Agreement for provisions relating to the interest rate, maturity, payment, prepayment and acceleration of this Revolving Note.
In the event of an acceleration of the maturity of this Revolving Note, this Revolving Note shall become immediately due and payable, without presentation, demand, protest or notice of any kind, all of which are hereby waived by the Borrower.
In the event this Revolving Note is not paid when due at any stated or accelerated maturity, the Borrower agrees to pay, in addition to the principal and interest, all costs of collection, including reasonable attorneys fees.
This Revolving Note shall be governed by and construed in accordance with the internal laws of the State of New York (including Sections 5-1401 and 5-1402 of the New York General Obligations Law, but excluding all other choice of law and conflicts of law rules). The Borrower hereby submits to the nonexclusive jurisdiction and venue of the federal and state courts located in Mecklenburg County, North Carolina, although the Lender shall not be limited to bringing an action in such courts.
IN WITNESS WHEREOF , the Borrower has caused this Revolving Note to be executed by its duly authorized corporate officer as of the day and year first above written.
IDAHO POWER COMPANY
By:
Title:
EXHIBIT F
FORM OF
SWINGLINE NOTE
$ ____________, 2007
Charlotte, North Carolina
FOR VALUE RECEIVED, IDAHO POWER COMPANY , an Idaho corporation (the Borrower ), hereby promises to pay to the order of
WACHOVIA BANK, NATIONAL ASSOCIATION (the Swingline Lender ), at the offices of Wachovia Bank, National Association (the Administrative Agent ) located at One Wachovia Center, 301 South College Street, Charlotte, North Carolina (or at such other place or places as the Administrative Agent may designate), at the times and in the manner provided in the Amended and Restated Credit Agreement, dated as of April 25, 2007 (as amended, modified, restated or supplemented from time to time, the Credit Agreement ), among the Borrower, the Lenders from time to time parties thereto, and Wachovia Bank, National Association, as Administrative Agent, the principal sum of
_________________________ DOLLARS ($___________), or such lesser amount as may constitute the unpaid principal amount of the Swingline Loans made by the Swingline Lender, under the terms and conditions of this promissory note (this Swingline Note ) and the Credit Agreement. The defined terms in the Credit Agreement are used herein with the same meaning. The Borrower also promises to pay interest on the aggregate unpaid principal amount of this Swingline Note at the rates applicable thereto from time to time as provided in the Credit Agreement.
This Swingline Note is issued to evidence the Swingline Loans made by the Swingline Lender pursuant to the Credit Agreement. All of the terms, conditions and covenants of the Credit Agreement are expressly made a part of this Swingline Note by reference in the same manner and with the same effect as if set forth herein at length, and any holder of this Swingline Note is entitled to the benefits of and remedies provided in the Credit Agreement and the other Credit Documents. Reference is made to the Credit Agreement for provisions relating to the interest rate, maturity, payment, prepayment and acceleration of this Swingline Note.
In the event of an acceleration of the maturity of this Swingline Note, this Swingline Note shall become immediately due and payable, without presentation, demand, protest or notice of any kind, all of which are hereby waived by the Borrower.
In the event this Swingline Note is not paid when due at any stated or accelerated maturity, the Borrower agrees to pay, in addition to the principal and interest, all costs of collection, including reasonable attorneys fees.
This Swingline Note shall be governed by and construed in accordance with the internal laws of the State of New York (including Sections 5-1401 and 5-1402 of the New York General Obligations Law, but excluding all other choice of law and conflicts of law rules). The Borrower hereby submits to the nonexclusive jurisdiction and venue of the federal and state courts located in Mecklenburg County, North Carolina, although the Swingline Lender shall not be limited to bringing an action in such courts.
IN WITNESS WHEREOF , the Borrower has caused this Swingline Note to be executed by its duly authorized corporate officer as of the day and year first above written.
IDAHO POWER COMPANY
By:
Title:
EXHIBIT G
FORM OF
JOINDER AGREEMENT
This Joinder Agreement (this Joinder Agreement ) is made this __ day of ____________, 20__, by,________________, a ___________________(the Assuming Lender ). Reference is made to the Amended and Restated Credit Agreement, dated as of April 25, 2007 (as amended, modified or supplemented from time to time, the Credit Agreement ), among Idaho Power Company (the Borrower ), the Lenders party thereto from time to time parties thereto (the Lenders ), and Wachovia Bank, National Association, as LC Issuer and administrative agent for the Lenders (the Administrative Agent ). Terms defined in the Credit Agreement are, unless otherwise defined herein or the context otherwise requires, used herein as defined therein.
The Assuming Lender hereby agrees as follows:
1. Joinder Agreement . Subject to the terms and conditions hereof and of the Credit Agreement, the Assuming Lender hereby agrees to become a Lender under the Credit Agreement with a Commitment of ________________Dollars ($____________). After giving effect to this Joinder Agreement and the adjustments required under Section 2.20(c) of the Credit Agreement, the Assuming Lenders Commitment, the aggregate outstanding principal amounts of the Loans owing to the Assuming Lender and the Assuming Lenders Pro Rata Share percentage of the aggregate principal amount of all Loans plus all LC Obligations will be as set forth in Item 4 of Annex I attached hereto.
2. Assuming Lender Representations . The Assuming Lender (i) confirms that it has received a copy of the Credit Agreement, together with copies of the financial statements of the Borrower delivered to the Administrative Agent pursuant to the Credit Agreement and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Joinder Agreement, (ii) agrees that it will, independently and without reliance upon the Administrative Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement, (iii) appoints and authorizes the Administrative Agent to take such action as Administrative Agent on its behalf under the Credit Documents, and to exercise such powers and to perform such duties, as are specifically delegated to or required of the Administrative Agent by the terms thereof, together with such other powers as are reasonably incidental thereto, (iv) agrees that it will perform in accordance with their terms all of the obligations that by the terms of the Credit Agreement are required to be performed by it as a Lender, and (vi) specifies as its address for payments and notices the office set forth beneath its name on its signature page hereto. [2]
3. Effective Date . Following the execution of this Joinder Agreement by the Assuming Lender, an executed original hereof, together with all attachments hereto, shall be delivered to the Administrative Agent. The effective date of this Joinder Agreement (the Effective Date ) shall be the date of execution hereof by the Borrower, the Administrative Agent and the Assuming Lender. As of the Effective Date, the Assuming Lender shall be a party to the Credit Agreement and, to the extent provided in this Joinder Agreement, shall have the rights and obligations of a Lender thereunder and under the other Loan Documents.
4. Governing Law . This Joinder Agreement shall be governed by, and construed in accordance with, the law of the State of New York (including Sections 5-1401 and 5-1402 of the New York General Obligations Law, but excluding all other choice of law and conflicts of law rules).
5. Entire Agreement . This Joinder Agreement, together with the Credit Agreement and the other Loan Documents, embody the entire agreement and understanding between the parties hereto and supersede all prior agreements and understandings of the parties, verbal or written, relating to the subject matter hereof
6. Successors and Assigns . This Joinder Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their successors and assigns.
7. Counterparts . This Joinder Agreement may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which, when so executed and delivered, shall be an original, but all of which shall together constitute one and the same instrument.
[signatures on following page]
IN WITNESS WHEREOF , the parties have caused this Joinder Agreement to be executed by their duly authorized officers as of the date first above written.
[
INSERT NAME OF ASSUMING
LENDER
]
By:
Name:
Title:
Accepted this __ day of
____________, ______:
WACHOVIA BANK, NATIONAL ASSOCIATION
,
as Administrative Agent
By:
Name:
Title:
Consented and agree to:
IDAHO POWER COMPANY
By:
Name:
Title:
ANNEX l
1. Borrower: Idaho Power Company
2. Name and Date of Credit Agreement:
Amended and Restated Credit Agreement dated as of April 25, 2007 among Idaho Power Company, the Lenders party thereto and Wachovia Bank, National Association, as LC Issuer and as Administrative Agent.
3. Date of Joinder Agreement: _______, 20__.
4.
Amounts (as of date of adjustment pursuant to Section 2.20(c) of the
Credit Agreement):
|
|
|
Percentage of Aggregate Commitment / Loans / LC Obligations [3] |
|
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|
|||
(a) Commitment / Loans |
$____________ |
$___________ |
_____________% |
|
|
|
|
5. Addresses for Payments and Notices:
Assuming Lender: For Funding/Notices:
Telecopy: (___) ___________
Reference
For Payments:
Telecopy: (___) ___________
Reference
6. Effective Date: ________________, 20 ____ (in accordance with Section 3).
[1] The aggregate outstanding Indebtedness evidenced by Hybrid Securities shall be excluded to the extent that the total book value of such Hybrid Securities does not exceed 15% of Consolidated Total Capitalization as of such time.
[2] If the Assuming Lender is a Non-U.S. Lender, add the following: and (vii) has delivered the forms required by Section 3.5(d) of the Credit Agreement.
[3]
Set forth, to at least 9 decimals, as a percentage of the
Commitment / Loans of all
Lenders thereunder.
Exhibit 10.63
IDAHO POWER COMPANY
EMPLOYEE SAVINGS PLAN
Amended and Restated
as of January 1, 2010 (revised)
1
Table of Contents
Page
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-x- |
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IDAHO POWER COMPANY
EMPLOYEE SAVINGS PLAN
Amended and Restated as of January 1, 2010
Introduction
The Company originally adopted the Idaho Power Company Employee Savings Plan (the Plan) on July 1, 1974, and the Plan has been amended and restated from time to time thereafter. Effective October 9, 1994, the Idaho Power Company Employee Stock Ownership Plan was merged with and into the Plan. This is an amendment and restatement of the Plan as previously amended and restated generally effective January 1, 2001, as amended by the First, Second and Third Amendments. This restatement generally will be effective January 1, 2010, except to the extent that certain provisions either are not required by law to be effective until a later date, or are required by law to be effective at an earlier date, and except as otherwise specifically indicated.
In connection with this amendment and restatement, the Company intends to preserve all Code section 411(d)(6) protected benefits within the meaning of Treasury Regulation § 1.411(d)-4 and this document should be interpreted accordingly. The Plan is intended to qualify under Code Sections 401(a) and 401(k), and the Trust Agreement established pursuant to the Plan is an employees trust intended to constitute a tax exempt organization under Code section 501(a).
Prior to January 1, 1998, the Plan was designed to qualify as a profit sharing plan for purposes of Sections 401(a), 402, 412 and 417 of the Code. Effective January 1, 1998, the Plan was converted to a stock bonus plan under Code section 401(a) and an employee stock ownership plan within the meaning of Code section 4975(e)(7) (ESOP) that is designed to invest primarily in Company Stock. Effective January 1, 2001, only the Company Stock Fund portion of the Plan will constitute an ESOP, and the remainder of the Plan will be a non-ESOP stock bonus plan. See Article 5 for more information regarding the Non-ESOP Company Stock Fund and the ESOP Company Stock Fund. It is intended that the Plan will at all times meet the stock distribution requirement of Code section 409(h)(1)(A) by permitting Participants to direct the investment of their Accounts into Company Stock prior to distribution. It is further intended that the Plan will at all times meet the ESOP diversification requirements of Code section 401(a)(28)(B) by permitting Participants to direct the investment of their entire Account into investments other than Company Stock, thereby providing complete diversification at all times.
1
1. DEFINITIONS
Administrator means the Company, or the Committee, if one is appointed pursuant to Section 9.1.
Account means the records, including subaccounts, maintained by the Administrator in the manner provided in Article 4 to determine the interest of each Participant in the assets of the Plan and may refer to any or all of the Participants Deferral Contribution Account, After-Tax-Account, Roth Deferral Account, Matching Contribution Account, and Rollover Account, as applicable.
After-Tax Contribution means a contribution described in Section 3.3.
Alternate Payee means any spouse, former spouse, child or other dependent of a Participant who is recognized by a qualified domestic relations order as having a right to receive all or a portion of the Account of a Participant under the Plan.
Beneficiary means any person or persons designated in writing by the Participant (which designation may be changed from time to time) to receive benefits under the Plan payable upon the death of a Participant. If the Participant is married, designation of a Beneficiary who is not the Participants Spouse shall require spousal consent which is notarized. If no such designation is in effect at the time of death of the Participant, or if no person so designated shall survive the Participant, the Beneficiary shall be his or her Spouse, or if the deceased Participant has no surviving Spouse, the Participants estate.
Board of Directors or Board means the Board of Directors of the Company.
Code means the Internal Revenue Code of 1986, as amended from time to time and, as appropriate, any predecessor provisions.
2
1.8 Company.
Company means Idaho Power Company, an Idaho corporation, and any successor thereto.
Company Stock means shares of common stock, par value $2.50 per share, of IDACORP, Inc., which stock is publicly traded.
Compensation with respect to any Participant means the Base Pay of a Participant, plus amounts under any Company approved annual incentive plan of the Employer, paid during the Plan Year for services rendered to his or her Employer. A Participants Compensation shall include Deferral Contributions under this Plan and any deductions under Code section 125 or 129 and shall include amounts that are not includable in an employees gross income by reason of Code section 132(f).
Base Pay means for regular full-time employees, the salary established by the wage schedule for each position plus any partial disability payments, less any reductions for time not worked. For other employees, base pay means hours worked times hourly rate. Payment for compensated time off is included in base pay. Overtime, including restoration overtime, are not included in Base Pay.
Compensation will exclude amounts (including but not limited to severance or separation pay or annual incentive compensation) paid after the Participant terminates employment with the Controlled Group, or otherwise ceases to be eligible to participate in the Plan; provided, however, that payments made in the first month after termination relating to pre-termination wages or payoff of unused vacation and/or sick leave will constitute Compensation.
1.10.1 Limitation on Compensation.
For purposes of determining benefits under the Plan, Compensation is limited to $245,000, as indexed for the cost of living pursuant to Code Sections 401(a)(17) and 415(d), per Plan Year.
Controlled Group means the Company and any and all other corporations, trades and businesses, the employees of which, together with employees of the Company, are required by Code section 414 (b), (c), (m) or (o) to be treated as if they were employed by a single employer.
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1.12 Controlled Group Member.
Controlled Group Member means each corporation or unincorporated trade or business that is or was a member of the Controlled Group, but only during the period when it is or was such a member.
Deferral Contribution means a contribution described in Section 3.1.
Direct Rollover means a payment by the Plan to the Eligible Retirement Plan specified by a Distributee.
Disability (or Disabled ) means a physical or mental condition of a Participant that constitutes total and permanent disability for purposes of the Companys Long Term Disability Plan.
Distributee means an Employee; a former Employee; an Employees or former Employees surviving Spouse; a non-spouse designated beneficiary; or an Employees or former Employees Spouse or former spouse who is an Alternate Payee under a QDRO.
1.17 Eligible Retirement Plan.
Eligible Retirement Plan means an individual retirement account described in Code sections 408(a) or 408(b), a Roth IRA described in Code section 408A(b) (effective January 1, 2008), an annuity plan described in Code sections 403(a) or 403(b), a qualified trust described in Code section 401(a) and an eligible plan under Code section 457(b) which is maintained by a state, political subdivision of a state or any agency or instrumentality of a state or political subdivision of a state and which agrees to separately account for amounts transferred into such a plan from this Plan. This definition of Eligible Retirement Plan shall also apply in the case of a distribution to a surviving spouse, or to a spouse or former spouse who is the alternate payee under a QDRO, or, effective January 1, 2010, to a non spouse beneficiary.
1.18 Eligible Rollover Distribution.
Eligible Rollover Distribution means any distribution of all or any portion of the Account balance to the credit of the Distributee other than the following: (i) any distribution that is one of a series of substantially equal periodic payments (made not less frequently than annually) for the life (or life expectancy) of the Distributee and the Distributees Beneficiary, or for a specified period of 10 years or more; (ii) any
4
distribution to the extent such distribution is required under Code section 401(a)(9); and (iii) the portion of any distribution that is not includable in gross income (determined without regard to the exclusion for net unrealized appreciation with respect to employer securities).
Notwithstanding the foregoing, effective January 1, 2007, a portion of a distribution shall not fail to be an Eligible Rollover Distribution merely because the portion consists of After-Tax Contributions or Roth Deferrals which are not includable in gross income. However, such portion may be transferred only to an individual retirement account or annuity described in Code sections 408(a) or (b), or to a qualified defined contribution plan described in Code sections 401(a) or 403(a) that agrees to separately account for amounts so transferred, including separately accounting for the portion of such distribution which is includable in gross income and the portion of such distribution which is not so includable.
Employee means any person who is (i) employed by any Controlled Group Member if their relationship is, for federal income tax purposes, that of employer and employee.
Employee Contributions means Deferral Contributions, After-Tax Contributions, and Roth Deferrals.
Employer or Participating Employer means the Company and any Controlled Group Member or organizational unit thereof which meets the requirements of Section 14.1 of the Plan. The Company will maintain a list of currently participating Employers, along with the effective dates of their participation. The Company may choose to satisfy the obligation of any Employer hereunder.
ERISA means the Employee Retirement Income Security Act of 1974, as amended from time to time.
Investment Funds means the Funds described in Article 5.
1.24 Long Term Disability Participant.
Long Term Disability Participant means a Participant who qualifies for, and receives benefits from, the Employers Long Term Disability Plan.
5
1.25 Matching Contribution.
Matching Contribution means a contribution described in Section 3.4.
Named Fiduciary means the Fiduciary Committee, which is appointed by the Chairman of the Board of Directors and Chief Executive Officer.
Participant means an Employee or former Employee who has met the applicable eligibility requirements of Article 2 and who has not yet received a distribution of the entire amount of his or her interest in the Plan.
Plan means the IDAHO POWER COMPANY EMPLOYEE SAVINGS PLAN, the terms of which are set forth herein, as amended from time to time.
Plan Year means the period with respect to which the records of the Plan are maintained, which shall be the 12-month period beginning on January 1 and ending on December 31.
QDRO means a qualified domestic relations order within the meaning of Code section 414(p).
1.31 Qualified Matching Contribution.
Qualified Matching Contribution means a contribution by an Employer to the Plan pursuant to Section 10.7 which is used to satisfy the Contribution Percentage test set forth in that Section.
1.32 Qualified Non-Elective Contribution
Qualified Non-Elective Contribution means a contribution by an Employer to the Plan that is made pursuant to Section 10.6. Such contributions shall be considered Deferral Contributions for all purposes of the Plan and shall be used to satisfy the Actual Deferral Percentage test as set forth in Section 10.6.
Qualified Plan means an employee benefit plan that is qualified under Code sections 401(a) or 403(a).
6
1.34 Rollover Contribution.
Rollover Contribution means a contribution described in Section 3.5.
1.35 Self-Directed Brokerage Fund
Self-Directed Brokerage Fund means an Investment Fund that consists solely of all or part of the assets of a single Participants Account, which assets the Participant controls by investment directives to the Trustee and which may not be commingled with assets of any other Participants Accounts.
Spouse means the person to whom a Participant is legally married at a specified time; surviving Spouse means the person to whom a Participant is legally married at the time of his or her death. The term Spouse shall be interpreted in a manner consistent with section 105(b) of the Code.
Trust Agreement means the agreement or agreements between the Company and the Trustee establishing a trust fund to provide for the investment, reinvestment, administration and distribution of contributions made under the Plan and the earnings thereon, as amended from time to time, including any successor trust that may be established with a successor trustee.
Trust Fund or Trust means the assets of the Plan held by the Trustee pursuant to the Trust Agreement.
Trustee means the one or more individuals or organizations who have entered into the Trust Agreement as Trustee(s), and any duly appointed successor.
Valuation Date means the date with respect to which the Trustee determines the fair market value of the assets comprising the Trust Fund or any portion thereof. The regular Valuation Date shall mean every business day of the Trustee, if a financial institution; otherwise, every business day on which the New York Stock Exchange is open.
7
2. PARTICIPATION
2.1 Eligibility to Participate.
Each Employee, other than an ineligible Employee under Section 2.3, will be eligible to become a Participant once he or she has attained age 18, if then employed by an Employer.
Matching Contributions will be due for all Employee Contributions as provided in Section 3.4.
2.2 Commencement of Participation.
An Employee eligible to participate in the Plan may enroll as a Participant on his or her hire date or as of any subsequent pay period.
2.3 Exclusions from Participation.
An Employee who is otherwise eligible to participate in the Plan will not become or continue as an active Participant if such Employee:
(i) is covered by a collective bargaining agreement that does not expressly provide for participation in the Plan;
(ii) is a leased employee required to be treated as an Employee under Code section 414(n);
(iii) is employed by a Controlled Group Member or an organizational unit thereof that is not an Employer; or
(iv) is a person performing services for the Employer who is not contemporaneously treated as a common law employee on the Employer's payroll records and personnel records, including, but not limited to, any person (A) whom the Employer treats as an independent contractor, (B) who is paid through a third party business entity's payroll, or (C) who is hired through an agreement with an employee staffing agency, regardless of whether the relationship between the Employer and the person subsequently is determined to be an employer/common law employee relationship because of (1) reclassification by a governmental agency (whether retroactively or
8
prospectively), (2) decision by a court, mediation, arbitration, or similar proceeding, or (3) mutual agreement between the Employer and the person.
2.3.2 Participation after Exclusion.
An Employee or Participant who is or becomes ineligible to participate in the Plan will be eligible to participate in the Plan on the first day he or she is no longer described in subsection 2.3.1 and is credited with one or more hours of service by an Employer, provided that he or she has otherwise met the requirements of Section 2.1. Such an Employee or Participant may commence or resume participation in the Plan as soon as administratively feasible, after completing the enrollment procedure established by the Administrator.
9
3. CONTRIBUTIONS
3.1.1 Amount of Deferral Contributions.
Upon enrollment, a Participant may direct that his or her Employer make Deferral Contributions to the Trust Fund of from 1% to 100% of his or her Compensation (in 1% increments) for each pay period. If a Participants Deferral Contributions must be reduced to comply with the requirements of Section 10.6 or the requirements of applicable law, the Deferral Contributions as so reduced will be the maximum percentage of his or her Compensation permitted by such Section or law notwithstanding the 1% increments requirement. A Participants Deferral Contributions, After-Tax Contributions and Roth Deferrals are limited to 100% of a Participants Compensation for a Plan Year.
Deferral Contributions made for a Participant during a pay period pursuant to a salary reduction agreement will be transmitted to the Trustee as soon as practicable, but in no event later than the period prescribed by law.
3.1.3 Changes in/Suspension of Contributions.
The percentage or percentages designated by a Participant shall continue in effect, notwithstanding any changes in the Participants Compensation. A Participant may, however, in accordance with the percentages permitted by subsection 3.1.1, change the percentage of his or her Deferral Contributions, effective as of any pay period (with respect to all pay periods ending on or after such period), by filing a notice with the Administrator prior to such pay period in accordance with procedures established by the Administrator from time to time. A Participant may suspend Deferral Contributions at any time, to be effective as soon as administratively feasible thereafter.
3.1.4 Resumption of Contributions.
A Participant who suspends Deferral Contributions may, upon prior notice to the Administrator, resume making such Deferral Contributions as of any pay period.
3.1.5 Establishment of Procedures by Administrator.
The Administrator may establish procedures for electing and changing deferrals which may, without limitation, provide for different notice periods, different methods (including telephonic or electronic, as permitted by applicable law) of making deferral elections and changes and more or less frequent times at which deferral elections or changes may become effective.
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3.2 Excess Deferrals.
3.2.1 Limit on Deferral Contributions.
(a) A Participants Deferral Contributions for any taxable year of such Participant shall not exceed the dollar limitation contained in Code section 402(g) in effect for such taxable year except to the extent permitted under Section 3.2.1(b) and Code section 414(v). For purposes of this Section and except as otherwise provided in this Section, a Participants Deferral Contributions shall include (i) any employer contribution made under any qualified cash or deferred arrangement as defined in Code section 401(k) to the extent not includable in gross income for the taxable year under Code section 402(e)(3) (determined without regard to Code section 402(g)), (ii) any employer contribution to the extent not includable in gross income for the taxable year under Code section 402(h)(1)(B) (determined without regard to Code section 402(g)), and (iii) any employer contribution to purchase an annuity contract under Code section 403(b) under a salary reduction agreement within the meaning of Code section 312(a)(5)(D).
(b) A Participant who is eligible to make Deferral Contributions under the Plan and who will attain age 50 before the close of the Plan Year shall be eligible to make catch-up contributions in accordance with, and subject to the limitations of, Code section 414(v). Such catch-up contributions shall not be taken into account for purposes of the provisions of the Plan implementing the required limitations of Code sections 402(g) or 415. The Plan shall not be treated as failing to satisfy the provision of the Plan implementing the requirements of Code sections 401(k)(3), 410(b) or 416 by reason of making such catch-up contributions
3.2.2 Distribution of Excess Deferrals.
If a Participants Deferral Contributions exceed the amount described in subsection 3.2.1 (hereinafter called the excess deferrals) during a taxable year of the Participant, such excess deferrals (adjusted for Trust Fund earnings and losses in the manner described in subsection 4.4.3) shall be distributed to the Participant by April 15 following the close of the taxable year in which such excess deferrals occurred if, by March 1 following the close of such taxable year, the Participant notifies the Administrator of any excess deferral amount allocated to the Participants Deferral Contribution under this Plan.
3.2.3 Preventing Excess Deferrals.
To ensure that excess deferrals will not be made to the Plan for any taxable year for any Participant, the Administrator will monitor (or cause to be monitored) the amount of Deferral Contributions being made to the Plan for each Participant during each taxable year and may take action to prevent Deferral Contributions made for any Participant under the Plan for any taxable year from exceeding the maximum amount under this Section. This action is in addition to, and not in lieu of, any other actions
that may be taken hereunder or that may be permitted by applicable law or regulation in order to ensure that the limitations described in this Section are met.
3.2.4 Matching Contributions Attributable to Excess Deferrals.
If a Participant receives a distribution of excess deferrals pursuant to subsection 3.2.2, Matching Contributions, if any, made with respect to such distributed Deferral Contributions (adjusted for Trust Fund earnings and losses as set forth in subsection 4.4.3) shall be forfeited and credited against the Employers obligation to make Matching Contributions under Section 3.4.
3.3 After-Tax and Roth Contributions.
Upon enrollment, a Participant will be entitled to contribute to the Trust Fund an amount between 1% and 100% of his or her Compensation (in 1% increments) for each pay period as an After-Tax or Roth Contribution which is non-deductible. Deferral Contributions, After-Tax and Roth Contributions are limited to 100% of a Participants Compensation.
The percentage of Compensation designated by the Participant as his or her After-Tax or Roth Contribution rate will continue in effect (unless restricted hereunder) until he or she elects to change such percentage. A Participant may elect to begin After-Tax or Roth Contributions or change After-Tax or Roth Contribution rate effective as of any payroll period. Such change shall be effected in accordance with procedures established by the Administrator. A Participant may suspend his or her After-Tax or Roth Contributions to the Plan at any time. The suspension will be effective as soon as administratively feasible. A Participant who suspends After-Tax or Roth Contributions can once again make After-Tax or Roth Contributions as of any payroll period.
3.4.1 Amount of Matching Contributions.
Each Employer will contribute to the Trust on account of each Plan Year a Matching Contribution equal to 100% of each Participants Employee Contributions for a pay period, in an amount up to the first 2% of the Participants Compensation with respect to such pay period. For the Employee Contributions equal to the next 4% of the Participants Compensation for a pay period (i.e., above 2% to 6%), the Employer will make a Matching Contribution of 50%.
3.4.2 Time of Matching Contributions.
Each Employer will make its Matching Contributions to the Trust in one or more installments not later than the due date (including extensions) for the filing of the Employers income tax return for the year for which the contributions are made.
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3.5 Rollover Contributions.
Rollover Contributions shall be permitted, subject to the provisions of this Section. The Administrator may direct the Trustee to accept, in accordance with procedures approved by the Administrator, all or part of an Eligible Rollover Distribution for the benefit of a Participant from (i) the Participant, (ii) another Qualified Plan, including, in a trustee-to-trustee transfer, After-Tax Contributions or Roth Deferrals to that plan, (iii) an annuity contract described in Code section 403(b), (iv) an individual retirement account (except a Roth IRA) or annuity as defined in Code sections 408(a) or 408(b) that is eligible to be rolled over and otherwise would be includible in gross income, or (v) an eligible plan under Code section 457(b) which is maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or political subdivision of a state.
3.6 Actual Deferral Percentage Limitation on Deferral Contributions.
Deferral Contributions will be subject to the average percentage test set forth in Section 10.6.
After-Tax Contributions, Roth Deferrals and Matching Contributions will be subject to the average contribution percentage test set forth in Section 10.7.
Notwithstanding any provision of this Plan to the contrary, contributions, benefits and service credit with respect to qualified military service will be provided in accordance with Code section 414(u).
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4. ALLOCATIONS TO PARTICIPANTS ACCOUNTS
4.1 Establishment of Accounts.
The Administrator will establish a Deferral Contribution Account, After-Tax Contribution Account, Roth Deferral Account, Matching Contribution Account, and, if applicable, a Rollover Account, for each Participant and may establish one or more subaccounts of a Participants Accounts, if the Administrator determines that subaccounts are necessary or desirable in administering the Plan.
4.2 Allocation of Contributions.
Deferral Contributions made by an Employer on behalf of a Participant will be allocated to the Participants Deferral Contribution Account.
After-Tax Contributions made by a Participant will be allocated to the Participants After-Tax Contribution Account.
4.2.3 Roth Deferral Contributions.
Roth Deferral Contributions made by a Participant will be allocated to the Participants Roth Deferral Contribution Account.
Matching Contributions made by an Employer on behalf of a Participant will be allocated to the Participants Matching Contribution Account.
Each Rollover Contribution made by a Participant shall be allocated to his or her Rollover Account.
4.2.6 Qualified Non-Elective Contributions and Qualified Matching Contributions.
Qualified Non-Elective Contributions and Qualified Matching Contributions will be allocated to the Deferral Contribution Accounts of the Participants designated as the group of Participants to whom the contribution is to be allocated based on the ratio that each designated Participants Compensation for the Plan Year bears to the Compensation of all designated Participants for the Plan Year; provided, however, that subaccounts will be maintained for the purpose of excluding Qualified Matching Contributions from the"Actual Deferral Percentage" test pursuant to Section 10.6 below and for the purpose of excluding Qualified Matching Contributions and Qualified
Non-Elective Contributions from the amount available for hardship withdrawals under Section 7.8 below.
4.3 Limitation on Allocations.
Article 10 sets forth certain rules under Code Sections 401(k), 401(m) and 415 that limit the amount of Employee Contributions and Employer contributions that may be allocated to a Participants Accounts for a Plan Year.
4.4 Allocation of Trust Fund Income and Loss.
The Administrator, through its accounting records, will segregate each Account and subaccount and will maintain a separate and distinct record of all income and losses of the Trust Fund attributable to each Account or subaccount. Income or loss of the Trust Fund will include any unrealized increase or decrease in the fair market value of the assets of the Trust Fund.
(a) With respect to Investment Funds which have a readily determinable fair market value as of the end of each business day during the calendar year, the share of net income or net loss of the Trust Fund to be credited to, or deducted from, each Account will be the allocable portion of the net income or net loss of the Trust Fund attributable to each Account determined by the Administrator as of each Valuation Date, based upon the ratio that each Account balance as of the previous Valuation Date bears to all Account balances after adjustment for withdrawals, distributions and other additions or subtractions. The share of net income or net loss to be credited to, or deducted from, any subaccount will be an allocable portion of the net income or net loss credited to or deducted from the Account under which the subaccount is established.
(b) With respect to Investment Funds which do not have a readily determinable fair market value as of the end of each business day during the calendar year, the Trustee shall determine a method of allocation which shall take into account the period over which a readily determinable fair market value is not available (using time weighted averages) and which the Trustee deems appropriate, and the Trustees determination of such method of allocation will be conclusive on all interested persons for all purposes of the Plan.
(c) To the extent that Investment Funds are mutual funds or similar investments, share-based accounting may be used in keeping records for the Plan, and the provisions of this subsection shall be applied and interpreted accordingly.
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4.4.3 Determination of Earnings and Losses On Forfeitures & Returned Contributions.
The earnings and losses of the Trust Fund for the Plan Year allocable to Deferral Contributions or After-Tax Contributions or Roth Deferral Contributions to be returned to a Participant or Matching Contributions to be forfeited or returned to a Participant pursuant to subsection 3.2.2, 10.6.5, or 10.7.4, will be determined by multiplying the Trust Fund earnings or losses for the Plan Year allocable to the Participants Deferral Contribution Account, After-Tax Contribution Account, Roth Deferral Contribution Account, or Matching Contribution Account, as applicable, by a fraction, the numerator of which is the amount of Deferral Contributions, After-Tax Contributions, Roth Deferral Contributions or Matching Contributions to be distributed to the Participant or the amount of Matching Contributions to be forfeited by the Participant, as applicable, and the denominator of which is the balance of the Participants Deferral Contribution Account, After-Tax Contribution Account, Roth Deferral Contribution Account or Matching Contribution Account, as applicable, on the last day of the Plan Year, reduced by the earnings and increased by the losses allocable to such Account for the Plan Year. The earnings and losses of the Trust Fund allocable to the Deferral Contributions, After-Tax Contributions or Roth Deferral Contributions to be returned or Matching Contributions to be returned or forfeited shall not include earnings and losses for the period between the end of the Plan Year and the date of such distribution or forfeiture.
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5. INVESTMENT OF CONTRIBUTIONS
The Trust Fund will be divided into such Investment Funds (including an ESOP Company Stock Fund and Self-Directed Brokerage Funds, as identified below) as shall be designated by the Administrator from time to time, and a Participants Account will be invested therein as provided in this Article. A Participants Account will be invested and reinvested in such funds in accordance with the terms of the Trust Agreement and the provisions of this Article. Notwithstanding any provision of the Plan to the contrary, the Administrator in its sole discretion may direct the Trustee to keep such portion of each Investment Fund in cash or cash equivalents as the Administrator may from time to time deem to be advisable to maintain sufficient liquidity to meet the obligations of the Plan or for other reasons.
There is no limitation under the Plan on the amount of qualifying employer securities within the meaning of ERISA section 407(d)(5) (including Company Stock) that can be held in the Trust Fund under the Plan, provided, however, that the Plan will not hold employer securities acquired with an exempt loan as defined in section 4975(d)(3) of the Code and Treasury Regulations thereunder.
Shares of Company Stock held or distributed by the Trustee may include such legend restrictions on transferability as the Company may reasonably require in order to assure compliance with applicable Federal and state securities laws. Except as otherwise provided in this Section, no shares of Company Stock held or distributed by the Trustee may be subject to a put, call or other option, or buy-sell or similar arrangement.
Company Stock held by the Plan shall be invested in the ESOP Company Stock Fund or such additional Company Stock Funds as established by the Administrator in its sole discretion. Such funds will be maintained on a share-based accounting method, and Participants will be credited with fractional shares, as appropriate. Dividends on Company Stock will be reinvested in Company Stock or paid to Participants in cash in accordance with Participant elections as provided for under Section 5.1.2 below.
A Participant may at any time there are amounts credited to his or her ESOP Company Stock Fund (or such other Company Stock Funds as are established by the Administrator in its sole discretion) direct a transfer of investment into any other Investment Fund under the Plan in accordance with written procedures established by the Administrator.
5.1.2 Cash Dividends Paid on Company Stock
In accordance with the Participants election, any dividends payable on Company Stock allocated to the Account of a Participant will be (i) paid to the Plan and credited to the ESOP Company Stock Fund in the Account of the Participant and reinvested in
Company Stock or (ii) paid to the Plan and credited to the ESOP Company Stock Fund in the Account of the Participant and distributed in cash to the Participant not later than 90 days after the close of the Plan Year in which the dividend is paid by the Company.
The election described in this Section 5.1.2 will be made by a Participant pursuant to written procedures established by the Administrator. Such election procedures will provide the Participant with a reasonable opportunity to make the dividend election before the dividend is paid or distributed to the Participant, and will provide the Participant with an opportunity to change the dividend election at least annually. The procedures will require that a Participants dividend election will be irrevocable with respect to any particular dividend before that dividend is credited to the ESOP Company Stock Fund in the Account of the Participant for the purpose of either being reinvested in Company Stock or paid to the Participant within 90 days after the Plan Year in which the dividend is paid by the Company.
Notwithstanding the foregoing, the Administrator may identify one of the options described above to serve as a default election if a Participant fails to make an affirmative election with respect to the Participants Company Stock dividend. Notwithstanding any other provisions of the Plan, the Administrator is authorized to direct the investment of dividends if they are accumulated pursuant to a Participant election to distribute them within 90 days after the close of the Plan Year in which the dividend is paid by the Company. Earnings on such accumulated dividends will be allocated to the Participants Account when the dividends are distributed.
5.1.3 Self-Directed Brokerage Fund
The Administrator may (but is not required to) establish Self-Directed Brokerage Funds as additional Investment Funds for individual Participants, and may adopt rules and procedures for Self-Directed Brokerage Funds that are different from the rules and procedures that apply to other Investment Funds. If the Administrator establishes such Self-Directed Brokerage Funds, the Participant for whom a Self-Directed Brokerage Fund is established shall direct the Trustee to invest the assets of the Self-Directed Brokerage Fund in investments that the Participant chooses, subject to limitations imposed by the Administrators rules and procedures. In no event, however, shall the Participant be allowed to direct the investment of such assets into any work of art, rug or antique, metal or gem, stamp or coin, alcoholic beverage or other similar tangible personal property if the Secretary of the Treasury shall have prohibited investment in such property.
In the event of distributions to a Participant from the Plan that are required by law or the terms of the Plan, including without limitation, distributions necessary to effect compliance with nondiscrimination testing, allocation limits and minimum required distributions, such distributions will be made first from Investment Funds other than the Participants Self-Directed Brokerage Fund. If the assets in such Investment Funds are insufficient, the Administrator will direct the Trustee to effect a sale of securities in the Self-Directed Brokerage Fund and an investment exchange to the Plans other investment options to provide sufficient funds for the distribution.
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5.2 Investment Options
Each Participant will, by direction to the Administrator, direct that all Deferral Contributions, After-Tax Contributions, Roth Deferral Contributions, Matching Contributions and Rollover Contributions made by or for such Participant be invested in one or more of the Investment Funds (but not to a Self-Directed Brokerage Fund) in percentages which are multiples of 1%. If a Self-Directed Brokerage Fund has been established for a Participant, the Participant may direct the Administrator to have funds transferred from other Investment Funds into the Self-Directed Brokerage Fund, subject to the rules and procedures established by the Administrator. An investment option selected by a Participant will remain in effect unless and until an investment change is made by him or her and becomes effective pursuant to Section 5.3. In the absence of an effective investment direction, such contributions made by or for a Participant will be invested in the Investment Fund that maximizes the goals of liquidity and preservation of principal, as determined by the Administrator.
5.3 Change of Investment Option.
A Participant may elect and change investment options in accordance with procedures established by the Administrator, which may, without limitation, provide for various notice periods, various methods (including telephonic or electronic, as permitted by applicable law) of making investment elections and changes and various times at which investment elections or changes may become effective.
The Administrator shall give appropriate and timely directions to the Trustee in order to permit the Trustee to give effect to the investment choice and investment change elections made under this Article and to provide funds for distributions pursuant to Article 7.
The fair market value of the total net assets comprising the Trust Fund and of each Investment Fund will be determined by the Trustee as of the close of business on each Valuation Date. Each such valuation will be made on the basis of the market value (as determined by the Trustee) of the Trust assets, except that property which the Trustee determines does not have a readily determinable market value will be valued at fair market value as determined by the Trustee in such manner as it deems appropriate, and the Trustees determination of such value will be conclusive on all interested persons for all purposes of the Plan. In determining such value, the Trustee shall deduct all permissible expenses for which the Trustee has not yet obtained reimbursement from the Employer or the Trust Fund.
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5.6 No Guarantee.
The Employers, the Administrator and the Trustee do not guarantee the Participants or their Beneficiaries against loss or depreciation or fluctuation of the value of the assets of the Trust Fund or any Investment Fund.
5.7 Securities Laws Limitations.
The Administrator may impose such investment and other restrictions under the Plan as the Administrator, in its sole discretion, deems necessary or appropriate to ensure compliance with the Securities Exchange Act of 1934, as amended (Act), or any other applicable law. Although Participants affected generally will include only those Participants subject to the reporting requirements of the Act, other participants may be affected in the discretion of the Administrator. No transfers will be permitted under the Plan that would result in a violation of the Companys insider trading policy.
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6. VESTING
Participants shall be fully vested in their Deferral Contribution, After-Tax Contribution, Rollover Contribution, and Roth Accounts. A Participant shall have a 100% vested and nonforfeitable interest in his or her Matching Contribution Account upon completion of one year of service. A year of service for this purpose is a cumulative twelve month period commencing with the Participants first date of employment.
Any balance in the Matching Contribution Account of a Participant who terminates his or her employment before being fully vested shall be forfeited, and shall be used to reduce the Employers Matching Contributions under the Plan during the Plan Year following the Plan Year in which the forfeiture arose.
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7. DISTRIBUTIONS
Except as set forth in Sections 7.8, 7.9 or 7.10, and subject to the provisions and restrictions in Article 12, a Participants interest in his or her Deferral Contribution Account, After-Tax Contribution Account, Roth Account, Matching Contribution Account and Rollover Account, may be distributed only after the Participants Disability, termination of employment with all members of the Controlled Group, or death. Upon a Participants Disability, he or she will be entitled to a distribution in the same form and at the same time as if he or she had terminated employment.
At least 30 days and, effective January 1, 2007, not more than 180 days prior to a distribution date, the Administrator must provide a written distribution notice (or a summary notice as permitted under Treasury regulations) to a Participant or Beneficiary. The distribution notice must explain the option forms of benefit in the Plan, including the material features and relative value of those options, the Participants or Beneficiarys right to postpone distribution, and the consequences of failing to defer receipt of distribution.
7.1.2 Qualified Reservist Distribution
Notwithstanding any 401(k) distributions in this Plan, the Plan permits a Participant to elect a Qualified Reservist Distribution. A Qualified Reservist Distribution is any distribution to an individual who is ordered or called to active duty after September 11, 2001, if: (i) the distribution is from amounts attributable to elective deferrals in a 401(k) plan; (ii) the individual was (by reason of being a member of a reserve component, as defined in section 101 of title 37, United States Code) ordered or called to active duty for a period in excess of 179 days or for an indefinite period; and (iii) the Plan makes the distribution during the period beginning on the date of such order or call, and ending at the close of the active duty period.
7.2 Form of Distributions (and Small Account Cash Out).
Distributions will be made in the form provided in this and the following Sections of this Article. A Participant or Beneficiary eligible to receive a distribution under the Plan shall request such distribution in accordance with procedures (including telephonic or electronic, as permitted by law) established by the Administrator, including furnishing such information as the Administrator may reasonably require. Notwithstanding any other provision of this Article, but subject to the requirements of Section 12.2, if the value of a Participant's vested interest in his or her Accounts does not exceed $1,000, determined according to Section 7.7 below, distribution to such Participant or Beneficiary will be made in the form of a single lump sum payment of the full value of the Accounts (or so much thereof to which a Beneficiary is entitled) as soon
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as practicable after the Participants Disability, death, or termination of employment with the Controlled Group.
7.2.1 Right to Receive Company Stock
The Participant (or Beneficiary) may elect to receive any distribution of all or a portion of his or her Accounts in the form of whole shares of Company Stock (with the value of any fractional share paid in cash) by directing the investment of all or a portion of his or her Accounts in the Company Stock Fund prior to any distribution. Distributions from the Company Stock Fund will be made in kind unless otherwise elected; provided, however, (i) that fractional shares of Company Stock will in all cases be distributed in cash, and (ii) that partial withdrawals may not be made through a combination of stock and cash distributions. Shares of Company Stock distributed by the Trustee shall be readily tradable on an established securities market.
7.3 Distributions upon Termination of Employment.
If a Participants employment with the Controlled Group is terminated for any reason other than death, such Participant shall receive his or her Account balance in the form of a single lump sum or as periodic partial withdrawals, in accordance with the provisions of this Article 7 (including Section 7.5.1), as the participant elects.
7.4.1 If the Beneficiary is not the Participants Surviving Spouse and not a Designated Beneficiary
Upon the death of a Participant, if his or her Beneficiary is not his or her surviving Spouse, then the entire Account balance shall be paid to the Beneficiary within five years after the Participants death, and after completion of procedures established by the Administrator.
7.4.2 If the Beneficiary is the Participants Surviving Spouse
Upon the death of a Participant, if his or her Beneficiary is his or her surviving Spouse, then the Beneficiary shall have the option of commencing distributions as soon as practicable after completion of procedures established by the Administrator, or delaying distributions, subject to the limitations in Article 12.
7.4.3 If the Beneficiary is the Designated Beneficiary and not the Participants Surviving Spouse
For distributions after December 31, 2006, a non-spouse beneficiary who is a designated beneficiary under Code §401(a)(9)(E) and the regulations thereunder, by a direct trustee-to-trustee transfer ("direct rollover"), may roll over all or any portion of his or her distribution to an individual retirement account the beneficiary establishes for purposes of receiving the distribution. In order to be able to roll over the distribution, the distribution otherwise must satisfy the definition of an eligible rollover distribution. If
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a non-spouse beneficiary receives a distribution from the Plan, the distribution is not eligible for a 60-day rollover. If the Participants named beneficiary is a trust, the Plan may make a direct rollover to an individual retirement account on behalf of the trust, provided the trust satisfies the requirements to be a designated beneficiary within the meaning of Code §401(a)(9)(E). A non-spouse beneficiary may not roll over an amount which is a required minimum distribution, as determined under applicable Treasury regulations and other Revenue Service guidance. If the Participant dies before his or her required beginning date and the non-spouse beneficiary rolls over to an IRA the maximum amount eligible for rollover, the beneficiary may elect to use either the 5-year rule or the life expectancy rule, pursuant to Treas. Reg. §1.401(a)(9)-3, A-4(c), in determining the required minimum distributions from the IRA that receives the non-spouse beneficiarys distribution.
Any distribution to a Participant or Beneficiary effected pursuant to this Article shall be made as soon as administratively feasible after an event of distribution described in Section 7.1 above, as the Participant or Beneficiary directs, subject to the rules set forth below and in Article 12.
7.5.1 Timing of Distributions upon Disability or Termination.
If a Participants Account balance exceeds $1,000 after the Participants service with the Controlled Group terminates or the Participant becomes Disabled, distribution of the vested Account balance will not be made or commenced (subject to Section 12.4) unless he or she elects to receive such distribution. Subject to Section 12.2, a Participant can request a distribution at any time after termination of employment with the Controlled Group or Disability, and such distribution will be made as soon as administratively feasible after such request is received by the Administrator, subject to such further notices and elections which may be required under the terms of the Plan. If a Participants Account balance is $1,000 or less, it will be distributed to him or her in a lump sum, as soon as administratively feasible after the applicable event.
7.5.2 Timing of Distributions to Beneficiaries.
Distribution of a Participants Account balance to the Participants Beneficiary will be made or will commence as soon as administratively feasible following notification to the Administrator of the Participants death.
7.6 Reemployment of Participant.
If a Participant who terminated employment again becomes an Employee before receiving a distribution of his or her Account balance pursuant to this Article, no distribution from the Trust Fund will be made while he or she is an Employee, and amounts distributable on account of such termination will be held in the Trust Fund until he or she is again entitled to a distribution under the Plan.
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7.7 Valuation of Accounts.
A Participants distributable Account balance will be valued as of the Valuation Date immediately preceding the date the Account is to be distributed, except that there will be added to the value of the Account the fair market value of any amounts allocated to the Account under Article 4 after that Valuation Date.
7.8.1 Availability of Hardship Distributions.
A Participant may request approval from the Administrator to have all or a portion of the value of the sum of (i) his or her Deferral Contribution Account (but excluding any earnings credited to the Deferral Contribution Account after December 31, 1988, Qualified Non-Elective Contributions and Qualified Matching Contributions), and (ii) his or her Rollover Account distributed to such Participant, provided that the Participant is suffering from hardship. A distribution will be on account of hardship only if the distribution is necessary to satisfy an immediate and heavy financial need of the Participant, as defined below, and satisfies all other requirements of this Section 7.8.
7.8.2 Immediate and Heavy Financial Need.
A distribution shall be made on account of an immediate and heavy financial need of a Participant only if the distribution is on account of:
(a) Medical expenses described in section 213(d) of the Code incurred by or necessary for the care of the Participant, the Participants Spouse, or any of the Participants dependents (as defined in section 152 of the Code);
(b) The purchase (excluding mortgage payments) of a principal residence of the Participant;
(c) The payment of tuition, related educational fees, and room and board expenses, for the next 12 months (beginning with the date of distribution) of post secondary education for the Participant or the Participants Spouse, children or dependents, provided that no withdrawal will be permitted for this purpose more than 6 months before payment is actually required to be made to the educational institution or other appropriate person;
(d) The need to prevent the eviction of the Participant from his or her principal residence or the foreclosure on the mortgage of the Participants principal residence;
(e) Payments for burial or funeral expenses for the Participants deceased parent, spouse, children or dependents;
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(f) Expenses for repair of damage to the Participants principal residence that would qualify for the casualty deduction under Code §165 (without regard to the 10% of AGI threshold); or
(g) Any other financial need which the Commissioner of Internal Revenue, through the publication of revenue rulings, notices and other documents of general applicability, may from time to time designate as a deemed immediate and heavy financial need as provided in section 1.401(k)-1(d)(2)(iv) of the Treasury Regulations.
7.8.3 Distributions Deemed Necessary.
A distribution shall be deemed to be necessary to satisfy an immediate and heavy financial need only if:
(a) The distribution does not exceed the financial need of the Participant (including amounts necessary to pay any federal, state or local income taxes or penalties reasonably anticipated to result from the distribution);
(b) The Participant has obtained all distributions (other than hardship distributions) and all nontaxable loans currently available under all of the Employers plans;
(c) The Participants Deferral Contributions, After-Tax Contributions and Roth Contributions, and all similar employee contributions under all of the Employers qualified and non-qualified plans of deferred compensation shall be suspended for a period of six months after the receipt of the hardship distribution.
7.8.4 Method of Requesting/Form of Distribution.
The Participants request for a hardship distribution shall be made in accordance with procedures (including telephonic or electronic, as permitted by law) established by the Plan Administrator from time to time, and the Participant shall furnish the Plan Administrator with such information as the Plan Administrator requests in its evaluation of the Participants withdrawal request.
7.8.5 Amount and Timing of Distribution.
The cumulative amount distributed to a Participant on account of hardship will not exceed the amount set forth in subsection 7.8.1 above that has not been previously distributed. Distributions pursuant to this subsection will be made as soon as administratively feasible after the Participants request and amounts will be withdrawn first, from the Participants Rollover Account (if any), and then from the Participants Deferral Contribution account.
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7.9 Distributions After Age 59-1/2.
A Participant who attains age 59-1/2 and who is still employed by a Controlled Group Member may elect a distribution of all or a portion of the amount then credited to his or her Deferral Contribution Account, Matching Contribution Account and Rollover Account. Partial withdrawals will be permitted at such times and in accordance with such procedures as will be determined by the Administrator, provided they are permitted at least quarterly.
7.10 Distributions From After-Tax Contribution Account.
A Participant may elect a distribution of all or a portion of the amounts credited to his or her After-Tax Contribution Account. Partial withdrawals will be permitted at such times and in accordance with such procedures as will be determined by the Administrator, provided they are permitted at least quarterly. Distributions from a Participants After-Tax Contribution Account (including amounts transferred from the prior Company Employee Stock Ownership Plan, which was merged into the Plan) shall be made, first, from such contributions made prior to January 1, 1987 (not including earnings thereon). A Participant may elect as to the order of distribution from his or her After-Tax Account, or from other pre-tax Deferral Accounts, or partly from each.
Notwithstanding any other provision herein to the contrary, a Distributee entitled to a distribution may elect (in such form and at such time as the Administrator may prescribe) to have all or a portion of an Eligible Rollover Distribution paid to an Eligible Retirement Plan in a Direct Rollover.
7.11.2 Direct Rollover of Non-Spousal Distribution.
A non-spouse beneficiary who is a designated beneficiary under Code §401(a)(9)(E) and the regulations thereunder, by a direct trustee-to-trustee transfer ("direct rollover"), may roll over all or any portion of his or her distribution to an individual retirement account the beneficiary establishes for purposes of receiving the distribution. In order to be able to roll over the distribution, the distribution otherwise must satisfy the definition of an eligible rollover distribution. If the Participant's named beneficiary is a trust, the Plan may make a direct rollover to an individual retirement account on behalf of the trust, provided the trust satisfies the requirements to be a designated beneficiary within the meaning of Code §401(a)(9)(E). A non-spouse beneficiary may not roll over an amount which is a required minimum distribution, as determined under applicable Treasury regulations and other Revenue Service guidance. If the Participant dies before his or her required beginning date and the non-spouse beneficiary rolls over to an IRA the maximum amount eligible for rollover, the beneficiary may elect to use either the 5-year rule or the life expectancy rule, pursuant to Treas. Reg. §1.401(a)(9)-3, A-
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4(c), in determining the required minimum distributions from the IRA that receives the non-spouse beneficiarys distribution.
Notwithstanding the foregoing, a Distributee may make an election under this Section only if the total amount of all Eligible Rollover Distributions made to such Distributee during a year is reasonably expected to exceed $200. Furthermore, if a Distributee elects to have only a portion of an Eligible Rollover Distribution paid in a Direct Rollover, the portion paid in a Direct Rollover must equal at least $500. If a Distributees Eligible Rollover Distribution is $500 or less, he or she may make an election only to have all of such distribution paid in a Direct Rollover.
7.11.4 Waiver of Notice Period.
Such distribution may commence less than 30 days after notice is given about the Participants right to make a Direct Rollover, provided that the Administrator informs the Participant that he or she has at least 30 days after receiving such notice to consider whether or not to make a Direct Rollover and the Participant, after receiving the notice, affirmatively elects to receive the distribution.
7.12 Restrictions on Distributions.
Article 12 sets forth certain rules under various provisions of the Code relating to restrictions on distributions to Participants and their Beneficiaries.
If the Administrator cannot locate a person entitled to receive a benefit under the Plan within a reasonable period (as determined by the Administrator in its discretion), the amount of the benefit will be treated as a forfeiture during the Plan Year in which the period ends. Such forfeitures will be applied in the discretion of the Administrator (i) to pay administrative expenses under the Plan, (ii) to reduce or offset Employers subsequent Matching Contributions required under the Plan, and (iii) to correct errors, omissions and exclusions as described in Section 9.10 below. If a person who was entitled to a benefit which has been forfeited under this Section makes a claim to the Administrator or the Trustee for his or her benefit, he or she will be entitled to receive, as soon as administratively feasible, a benefit in an amount equal to the value of the forfeited benefit on the date of forfeiture. This benefit will be reinstated first from forfeitures and second from Employer contributions for that Plan Year.
Any person otherwise entitled to a distribution under the Plan, to whom a lump-sum distribution of the balance of the Accounts (or portion thereof) to which he or she is entitled has not been made under the terms of Section 7.2, may elect to make partial withdrawals at such time and in accordance with such procedures as will be determined by the Administrator, provided such withdrawals are permitted at least quarterly.
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7.15 Installment Distributions
In lieu of a lump sum distribution as provided in Section 7.3 and 7.4, and subject to the limitations in Article 12, a Participant may elect to receive distribution of his or her Account balance in monthly, quarterly, semi-annual or annual installments.
In the case of a death occurring on or after January 1, 2007, if a Participant dies while performing qualified military service (as defined in Code § 414(u)), the survivors of the Participant are entitled to any additional benefits (other than benefit accruals relating to the period of qualified military service) provided under the Plan as if the Participant had resumed and then terminated employment on account of death.
7.16.2 Differential Wage Payments.
For years beginning after December 31, 2008, (i) an individual receiving a differential wage payment, as defined by Code §3401(h)(2), is treated as an employee of the Employer making the payment, (ii) the differential wage payment is treated as Compensation, and (iii) the Plan is not treated as failing to meet the requirements of any provision described in Code §414(u)(1)(C) by reason of any contribution or benefit which is based on the differential wage payment.
7.16.3 Severance From Employment.
Notwithstanding Section 7.16.2(i), for years beginning after December 31, 2008, for purposes of Code §401(k)(2)(B)(i)(I), an individual is treated as having been severed from employment during any period the individual is performing service in the uniformed services described in Code §3401(h)(2)(A).
a. Suspension of deferrals. If an individual elects to receive a distribution by reason of severance from employment, death or disability, the individual may not make an elective deferral or employee contribution during the 6-month period beginning on the date of the distribution.
b. Nondiscrimination requiremen t. Section 7.16.2(iii) applies only if all employees of the Employer performing service in the uniformed services described in Code §3401(h)(2)(A) are entitled to receive differential wage payments (as defined in Code §3401(h)(2)) on reasonably equivalent terms and, if eligible to participate in a retirement plan maintained by the employer, to make contributions based on the payments on reasonably equivalent terms (taking into account Code §§410(b)(3), (4), and (5)).
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8. SPECIAL RULES REGARDING ACQUISITIONS, DISPOSITIONS & TRANSFERS
The Administrator may, but is not required to, grant past service credit to those individuals who are employed by a business acquired by Controlled Group Members (referred to herein as an Acquisition Business) at the time it became a Controlled Group Member. Such grant would provide that the period of time that such individuals were in the employ of the Acquisition Business prior to its becoming part of the Controlled Group would count as a period of employment for purposes of eligibility for Matching Contributions. Any such grant shall be made either by an amendment to the Plan or by the Administrator maintaining a record of such service on the books of the Plan, and reflecting such grant in an appropriate document.
8.2 Transfer From Another Qualified Plan in Controlled Group.
If a Participant is also a participant in another Qualified Plan which is sponsored by an Acquisition Business or Controlled Group Member, the Participant may direct the Trustee, subject to the approval of the Administrator, to accept from such Qualified Plan an amount representing such Participants interest in such plan, to be held by the Trustee subject to all of the terms and conditions of the Plan and Trust Agreement, in the Participants Rollover Account; provided, however, that property other than cash shall not be transferred to the Trustee without the Administrators approval, and provided, further, that the Administrator may establish such procedures (including but not limited to required notice periods) as the Administrator shall deem appropriate, which must be followed by the Participant as a condition to such a transfer of assets. The Administrator may not approve any transfer to the Plan if such transfer would require the Plan to offer benefits, rights and features not offered under the Plan in order to comply with the requirements of Code section 411(d) and the regulations thereunder. Amounts transferred to the Plan from another Qualified Plan, other than such amounts transferred in a direct rollover transfer within the meaning of Code section 401(a)(31), shall retain all benefits, rights, and features provided under the Qualified Plan and protected under Code section 411(d)(6), except to the extent that such benefits, rights and features may be eliminated under the regulations under Code section 411(d)(6).
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9. ADMINISTRATION OF THE PLAN AND TRUST AGREEMENT
The Company will have all authority, rights and responsibility of the Administrator hereunder. Any action taken by the Company as Administrator may be taken by any one of its officers authorized by the Board, or any other person authorized by such officers to act on the Companys behalf in its capacity as Administrator.
9.2 Employees of the Administrator.
The Administrator may employ and suitably compensate such persons or organizations to render advice with respect to the duties of the Administrator under the Plan as the Administrator determines to be necessary or desirable.
9.3 Expenses and Compensation.
The expenses of the Administrator properly incurred in the performance of its duties under the Plan will be paid from the Trust Fund, unless the Employers in their discretion pay such expenses. To the extent Plan expenses are paid from the Trust Fund, the Administrator will establish procedures for allocating such expenses to the Accounts of Participants, including procedures based on transactions which involve such Participants Accounts.
9.4 General Powers and Duties of the Administrator.
The Administrator will have the full power and responsibility to administer the Plan and the Trust Agreement and to construe and apply their provisions. For purposes of ERISA, the Administrator will be the Named Fiduciary with respect to the operation and administration of the Plan and the Trust Agreement; provided, however, that the Administrator shall have no responsibility for or control over the funding, investment or management of Plan assets, except as specifically provided in this Plan. In addition, the Administrator will have the powers and duties granted by the terms of the Trust Agreement. The Administrator, and all other persons with discretionary control respecting the operation, administration, control or management of the Plan, the Trust Agreement or the Trust Fund, will perform their duties under the Plan and the Trust Agreement solely in the interests of Participants and their Beneficiaries.
9.5 Specific Powers and Duties of the Administrator.
The Administrator will administer the Plan and have all powers necessary to accomplish that purpose, including the following: (i) resolving all questions relating to the eligibility of Employees to become Participants; (ii) determining the amount of benefits payable to Participants or their Beneficiaries and determining the time and manner in which such benefits are to be paid; (iii) authorizing and directing all disbursements by the Trustee from the Trust Fund; (iv) engaging any administrative, legal, medical, accounting, clerical or other services it deems appropriate in administering the Plan or the Trust Agreement; (v) in its sole and absolute discretion
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construing and interpreting the Plan and the Trust Agreement (including, without limitation, by supplying omissions from, correcting deficiencies in, or resolving inconsistencies or ambiguities in, the language of the Plan and the Trust Agreement) and adopting and amending rules for administration of the Plan and the Trust Agreement which are not inconsistent with the terms of such documents; (vi) compiling and maintaining all records it determines to be necessary, appropriate or convenient in connection with the administration of the Plan and the Trust Agreement; and (vii) determining the disposition of assets in the Trust Fund if the Plan is terminated.
9.6 Allocation of Fiduciary Responsibility.
The Administrator from time to time may delegate to any other persons or organizations any of its rights, powers, duties and responsibilities with respect to the operation and administration of the Plan and the Trust Agreement that are permitted to be delegated under ERISA. Any such allocation or delegation will be made in writing, will be reviewed periodically by the Administrator, and will be terminable upon such notice as the Administrator in its discretion deems reasonable and proper under the circumstances. Whenever a person or organization has the power and authority under the Plan or the Trust Agreement to delegate discretionary authority respecting the administration of the Plan or the Trust Fund to another person or organization, the delegating partys responsibility with respect to such delegation is limited to the selection of the person to whom authority is delegated and the periodic review of such persons performance and compliance with applicable law and regulations. Any breach of fiduciary responsibility by the person to whom authority has been delegated which is not proximately caused by the delegating partys failure to properly select or supervise, and in which breach the delegating party does not otherwise participate, will not be considered a breach by the delegating party.
9.7 Notices, Statements and Reports.
The Company will be the administrator of the Plan as defined in ERISA section 3(16)(A) for purposes of the reporting and disclosure requirements imposed by ERISA and the Code.
The claims procedure set forth in this Section 9.8 shall be the procedure for the resolution of disputes and disposition of claims arising under the Plan. For the purposes of this Section 9.8, a request for resolution of a dispute is considered a claim.
9.8.1 Filing Claim for Benefits.
If a Participant or Beneficiary does not receive the benefits which he or she believes he or she is entitled to receive under the Plan, he or she may file a claim for benefits with the Administrator. All claims will be made in writing and will be signed by the claimant. If the claimant does not furnish sufficient information to determine the
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validity of the claim, the Administrator will indicate to the claimant any additional information which is required.
9.8.2 Notification by the Administrator.
Each claim will be approved or disapproved by the Administrator within 90 days following the receipt of the information necessary to process the claim. The 90 day claims review period may be extended an additional 90 days, provided that notice of such extension of time is given the claimant within the first 90 day period. If the Administrator denies a claim for benefits in whole or in part, the Administrator will notify the claimant in writing of the denial of the claim. Such notice by the Administrator will also set forth, in a manner calculated to be understood by the claimant, the specific reason for such denial, the specific Plan provisions on which the denial is based, a description of any additional material or information necessary to perfect the claim with an explanation of why such material or information is necessary, and an explanation of the Plans claim review procedure as set forth in subsection 9.8.3. If no action is taken by the Administrator on a claim within 90 days, the claim will be deemed to be denied for purposes of the review procedure.
A claimant may appeal a denial of his or her claim by requesting a review of the decision by the Administrator or a person designated by the Administrator, which person will be a Named Fiduciary for purposes of this Section. An appeal must be submitted in writing within 60 days after the denial and must (i) request a review of the claim for benefits under the Plan, (ii) set forth all of the grounds upon which the claimants request for review is based and any facts in support thereof, and (iii) set forth any issues or comments which the claimant deems pertinent to the appeal. The Administrator or the Named Fiduciary designated by the Administrator will make a full and fair review of each appeal and any written materials submitted in connection with the appeal. The Administrator or the Named Fiduciary designated by the Administrator will act upon each appeal within 60 days after receipt thereof unless special circumstances require an extension of the time for processing, in which case a decision will be rendered as soon as possible but not later than 120 days after the appeal is received. The claimant will be given the opportunity to review pertinent documents or materials upon submission of a written request to the Administrator or Named Fiduciary, provided the Administrator or Named Fiduciary finds the requested documents or materials are pertinent to the appeal. On the basis of its review, the Administrator or Named Fiduciary will make an independent determination of the claimants eligibility for benefits under the Plan. The decision of the Administrator or Named Fiduciary on any claim for benefits will be final and conclusive upon all parties thereto. If the Administrator or Named Fiduciary denies an appeal in whole or in part, it will give written notice of the decision to the claimant, which notice will set forth in a manner calculated to be understood by the claimant the specific reasons for such denial and which will make specific reference to the pertinent Plan provisions on which the decision was based.
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9.8.4 Claims Must Be Timely.
A claim may be denied if it is not timely. To be considered timely under the Plans claim review procedure, a claim must be filed with the Administrator within one (1) year after the claimant knew or reasonably should have known of the principal facts upon which the claim is based. If or to the extent that the claim relates to a failure to effect a Participants or Beneficiarys investment directions or a Participants election regarding contributions, the one (1) year period shall be thirty (30) days.
The Administrator may from time to time designate an agent of the Plan for the service of legal process. In the absence of such a designation, the Company will be the agent of the Plan for the service of legal process.
If an error or omission is discovered in the Accounts of a Participant, or in the amount distributed to a Participant, or if an Employee is determined to have been improperly or mistakenly excluded from participation in the Plan, the Administrator will make such equitable adjustments in the records of the Plan as may be necessary or appropriate to correct such error, omission or exclusion as of the Plan Year in which such error, omission or exclusion is discovered. Further, an Employer may, in its discretion, make a special contribution to the Plan, to be allocated by the Administrator only to the Account of one or more Employees or Participants to correct such error, omission or exclusion.
9.11 Payment to Minors or Persons Under Legal Disability.
If any benefit becomes payable to a minor or to a person under a legal disability, payment of such benefit will be made only to the conservator or the guardian of the estate of such person appointed by a court of competent jurisdiction or such other person or in such other manner as the Administrator determines is necessary to ensure that the payment will legally discharge the Plans obligation to such person.
9.12 Uniform Application of Rules and Policies.
The Administrator in exercising its discretion granted under any of the provisions of the Plan or the Trust Agreement will do so only in accordance with rules and policies established by it which will be uniformly applicable to all Participants and Beneficiaries.
The Plan is to be funded through Employer and Participant contributions and earnings on such contributions, and benefits will be paid to Participants and Beneficiaries as provided in the Plan.
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9.14 The Trust Fund.
The Trust Fund will be held by the Trustee for the exclusive benefit of Participants and Beneficiaries. The assets held in the Trust Fund will be invested and reinvested in accordance with the terms of the Trust Agreement, which is hereby incorporated into and made a part of the Plan. All benefits will be paid solely out of the Trust Fund, and no Employer will be otherwise liable for benefits payable under the Plan.
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10. LIMITATIONS ON CONTRIBUTIONS AND ALLOCATIONS TO PARTICIPANTS ACCOUNTS
10.1 Priority over Other Contribution and Allocation Provisions.
The provisions set forth in this Article supersede any conflicting provisions of this Plan.
10.2 Definitions Used in this Article.
The following words and phrases will have the meanings set forth below, for purposes of this Article only.
Annual Addition means the sum of Deferral Contributions, After-Tax Contributions, Roth Contributions, Matching Contributions, and profit sharing contributions credited to the Participant under the Plan and all other defined contribution plans maintained by Controlled Group Members for the Limitation Year, and, if the Participant is a Key Employee (pursuant to subsection 13.2.8) for the applicable or any prior Limitation Year, medical benefits provided pursuant to Code section 419A(d)(1) (Welfare Fund) for the Limitation Year.
A Participants Annual Addition will not include (i) any amounts allocated to his Rollover Account, or (ii) Deferral Contributions (and corresponding Matching Contributions) that are in excess of the Code section 402(g) amount and that are refunded by April 15 of the following Plan Year. A corrective allocation pursuant to Section 9.10 will be considered an Annual Addition for the Limitation Year to which it relates.
A Participants Annual Addition shall not exceed the amount provided under Code Section 415(c) and the regulations issued thereunder, including the Final 415 Regulations.
Compensation shall be determined at the election of the Administrator as an definition of Compensation that satisfies Code section 414(s) and the Treasury Regulations thereunder. Compensation of an Employee taken into account for purposes of determining excess Deferral Contributions under Section 10.6 and excess Matching Contributions under Section 10.7 in any Plan Year shall be limited as set forth in subsection 1.10.1.
Defined Benefit Plan means a Qualified Plan other than a Defined Contribution Plan.
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10.2.4 Defined Contribution Plan.
Defined Contribution Plan means a Qualified Plan described in Code section 414(i). References to a Defined Contribution Plan shall also refer to a Welfare Fund, as appropriate under Code section 415 and the regulations thereunder.
10.2.5 Eligible Employee and Eligible Highly Compensated Employee.
Eligible Employee and eligible Highly Compensated Employee means an Employee eligible to become a Participant under the provisions of Article 2.
10.2.6 Highly Compensated Employee.
Highly Compensated Employee includes any Employee who (1) was a five percent owner of the Employer at any time during the current Plan Year or the preceding Year, or (2) received more than $110,000 in compensation in the preceding Plan Year (as defined in Code section 414(q)(4) and adjusted under Code section 415(d)).
10.2.7 Includable Compensation.
Includable Compensation means the Employees compensation in the amount reported by the Employer or any Controlled Group Member as Wages, tips, other compensation for purposes of Internal Revenue Service Form W-2, Box 1, or any successor method of reporting under Code section 6041(d).
Limitation Year means the 12 consecutive month period used by a Qualified Plan for purposes of computing the limitations on benefits and annual additions under Code section 415. The Limitation Year for this Plan is the Plan Year.
10.2.9 Maximum Annual Addition.
Maximum Annual Addition means with respect to a Participant (except as otherwise permitted by Section 3.2.1(b) and Code section 414(v)), an Annual Addition equal to the lesser of (i) $49,000 (as adjusted for the cost of living pursuant to Code section 415(d)) or (ii) 100% of the Participants Includable Compensation.
10.3.1 Correcting an Excess Annual Addition.
If the amount otherwise allocable to a Participant's Account would exceed the Maximum Annual Addition (resulting from a reasonable error in estimating an employee's Compensation or in determining the amount of After-Tax Contributions or Deferral Contributions or other facts and circumstances acceptable to the Internal
Revenue Service), the Administrator shall dispose of the excess amount in accordance with the Employee Plans Compliance Resolution System (EPCRS).
10.3.2 Correcting a Multiple Plan Excess.
If, in addition to this Plan, the Participant is covered under another Defined Contribution Plan maintained by a Controlled Group Member during the Limitation Year the Annual Addition which may be credited to a Participants Account under this Plan for any such Limitation Year will not exceed the Maximum Annual Addition reduced by the Annual Addition credited to a Participants accounts under the other Defined Contribution Plans for the same Limitation Year.
10.4 Excess Deferral Contributions Under Code section 401(k).
10.4.1 Actual Deferral Percentage Test - Prior Year Testing Method.
Notwithstanding the provisions of Article 3, for any Plan Year,
(a) the actual deferral percentage (as defined in subsection 10.4.3) for the group of eligible Highly Compensated Employees for the Plan Year shall not exceed the actual deferral percentage for the group comprised of all other eligible Employees for the preceding Plan Year multiplied by 1.25, or
(b) the excess of the actual deferral percentage for the group of eligible Highly Compensated Employees for the Plan Year over the actual deferral percentage for the group comprised of all other eligible Employees for the preceding Plan Year shall not exceed 2 percentage points; and the actual deferral percentage for the group of eligible Highly Compensated Employees for the Plan Year shall not exceed the actual deferral percentage for the group comprised of all other eligible Employees for the preceding Plan Year multiplied by 2.
10.4.2 Aggregation and Disaggregation of Plans.
If two or more plans which include cash or deferred arrangements are considered as one plan for purposes of Code Sections 401(a)(4) or 410(b), such arrangements included in such plans shall be treated as one arrangement for the purposes of subsection 10.4.1; and if any eligible Highly Compensated Employee is a participant under two or more cash or deferred arrangements of the Controlled Group, all such arrangements shall be treated as one cash or deferred arrangement for purposes of determining the deferral percentage with respect to such eligible Highly Compensated Employee. If the Plan benefits Employees who are covered by a collective bargaining agreement, the portion of the Plan covering such union Employees will be treated as a separate plan (or multiple plans for various union groups as determined by the Administrator) for the purposes of subsection 10.4.1.
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10.4.3 Definition of Actual Deferral Percentage.
For the purposes of this Section, the actual deferral percentage for a specified group of eligible Employees for a Plan Year shall be the average of the ratios (calculated separately for each eligible Employee in such group) of (i) the amount of Deferral Contributions actually paid to the Trust Fund for each such eligible employee for such Plan Year (including any excess deferrals described in Section 3.2) to (ii) the eligible Employees Compensation (as defined in subsection 10.2.2 for such Plan Year). The actual deferral percentage for an eligible Employee who makes no Deferral Contribution during the Plan Year shall be taken into account and shall be zero.
10.4.4 Suspension of Deferral Contributions.
If at any time during a Plan Year the Administrator determines, on the basis of estimates made from information then available, that the limitation described in subsection 10.4.1 above will not be met for the Plan Year, the Administrator in its discretion may reduce or suspend the Deferral Contributions of one or more Participants who are Highly Compensated Employees to the extent necessary (i) to enable the Plan to meet such limitation or (ii) to reduce the amount of excess Deferral Contributions that would otherwise be distributed pursuant to subsection 10.4.5 below.
10.4.5 Distribution of Excess Contributions.
If the actual deferral percentage test of subsection 10.4.1 is not satisfied based upon the Deferral Contributions made for the Plan Year, the Administrator shall determine the maximum actual deferral percentage for Highly Compensated Employees that would satisfy the test. For all Highly Compensated Employees whose individual actual deferral percentage exceeds such maximum percentage, the Administrator shall calculate excess Deferral Contributions by subtracting the product of such maximum percentage and the Highly Compensated Employees Compensation from the Highly Compensated Employees actual Deferral Contributions for the Plan Year. The total of all such excess Deferral Contribution amounts for the Plan Year shall constitute the excess contributions under the Plan for the Plan Year. The Administrator shall direct the Trustee to distribute such excess contributions (adjusted for Trust Fund earnings and losses in the manner described in subsection 4.4.3, except that for Plan Years beginning after December 31, 2007, the Administrator will not calculate and the Trustee will not distribute allocable income for the gap period (i.e., the period after the close of the Plan Year in which the excess contribution occurred and prior to the distribution)) to the extent administratively feasible, on or before March 15th of the following Plan Year and in no event later than the end of the following Plan Year, in accordance with the following leveling method:
(a) The Administrator shall reduce the Deferral Contributions for the Highly Compensated Employee with the largest dollar amount of Deferral Contributions by the amount equal to the lesser of the total "excess contributions" for all Highly Compensated Employees or the dollar amount that would cause his or her Deferral Contribution dollar amount to equal that of the
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Highly Compensated Employee
with the next largest Deferral Contribution dollar amount for the Plan Year.
The Administrator shall then reduce equally the Deferral Contributions for the
two Highly Compensated Employees with the largest Deferral Contribution dollar
amounts, and then reduce equally for the three Highly Compensated Employees
with the largest Deferral Contribution dollar amounts, and so forth, until the
sum of all such reductions equals the excess contributions for the Plan Year.
(b) The Administrator shall thereupon direct the Trustee to refund the amounts by which Deferral Contributions are reduced under subparagraph (a) above (less any amount of such Deferral Contributions refunded under subsection 3.2.2) to the respective Highly Compensated Employees. The refunds shall first be made from Deferral Contributions not subject to Matching Contributions under Section 3.4. Any Matching Contributions shall be forfeited and applied to reduce any subsequent Employer Contribution.
10.4.6 Qualified Non-Elective Contributions.
Notwithstanding the foregoing, within 12 months after the end of the Plan Year, an Employer may make a special Qualified Non-Elective Contribution on behalf of a class of Participants designated by the Employer in an amount sufficient to satisfy the actual deferral percentage test set forth in subsection 10.4.1.
10.5 Excess Matching Contributions Under Code Section 401(m).
10.5.1 Actual Contribution Percentage Test - Prior Year Testing Method.
Notwithstanding the provisions of Article 3, for any Plan Year,
(a) the actual contribution percentage (as defined in subsection 10.5.3) for the group of eligible Highly Compensated Employees for the Plan Year shall not exceed the actual contribution percentage for the group comprised of all other eligible Employees for the preceding Plan Year multiplied by 1.25, or
(b) the excess of the actual contribution percentage for the group of eligible Highly Compensated Employees for the Plan Year over the actual contribution percentage for the group comprised of all other eligible Employees for the preceding Plan Year shall not exceed 2 percentage points; and the actual contribution percentage for the group of eligible Highly Compensated Employees for the Plan Year shall not exceed the actual contribution percentage for the group comprised of all other eligible Employees for the preceding Plan Year multiplied by 2.
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10.5.2 Aggregation and Disaggregation of Plans.
If the Plan benefits Employees who are covered by a collective bargaining agreement, the portion of the Plan covering such union Employees will be treated as a separate plan (or multiple plans for various union groups as determined by the Administrator) for the purposes of subsection 10.5.1.
10.5.3 Definition of Actual Contribution Percentage.
For the purposes of this Section, the contribution percentage for a specified group of eligible Employees for a Plan Year shall be the average of the ratios (calculated separately for each eligible Employee in such group) of (i) the sum of the After-Tax Contributions, Roth Contributions and the Matching Contributions paid under the Plan by or on behalf of each such eligible Employee for such Plan Year to (ii) the eligible Employees Compensation for such Plan Year. The contribution percentage of an eligible Employee who makes no Deferral or After-Tax or Roth Contribution during the Plan Year shall be taken into account and shall be zero.
For purposes of determining whether the Plan satisfies the actual contribution percentage test of Code section 401(m), the requirements of section 401(m) of the Code and the Treasury Regulations thereunder (in particular concerning the aggregation of plans), are incorporated herein by this reference.
10.5.4 Treatment of Excess Aggregate Contributions.
If the contribution percentage test of subsection 10.5.1 is not satisfied based upon the After-Tax, Roth and Matching Contributions made for the Plan Year, the Administrator shall determine the maximum contribution percentage for Highly Compensated Employees that would satisfy the test. For any Highly Compensated Employee whose individual contribution percentage exceeds such maximum percentage, the Administrator shall calculate excess After-Tax, Roth and Matching Contributions by subtracting the product of such maximum percentage and the Highly Compensated Employees Compensation from the After-Tax, Roth and Matching Contributions allocated to the Highly Compensated Employees Account for the Plan Year. The total of all such excess Matching Contribution amounts for the Plan Year shall constitute the excess aggregate contributions under the Plan for the Plan Year. The Administrator shall direct the Trustee to distribute such excess aggregate contributions (adjusted for Trust Fund earnings and losses in the manner described in subsection 4.4.3, except that for Plan Years beginning after December 31, 2007, the Administrator will not calculate and the Trustee will not distribute allocable income for the gap period (i.e., the period after the close of the Plan Year in which the excess aggregate contribution occurred and prior to the distribution)) to the extent administratively feasible on or before March 15th of the following Plan Year (and in no event later than the end of the Plan Year), in accordance with the following leveling method:
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(a) The Administrator shall reduce the After-Tax and Roth Contributions for the Highly Compensated Employee with the largest dollar amount of After-Tax and Roth Contributions by the amount equal to the lesser of the total excess aggregate contributions for all Highly Compensated Employees or the dollar amount that would cause his or her After-Tax and Roth Contribution dollar amount to equal that of the Highly Compensated Employee with the next largest After-Tax and Roth Contribution dollar amount for the Plan Year. The Administrator shall then reduce equally the After-Tax and Roth Contributions for the two Highly Compensated Employees with the largest After-Tax and Roth Contribution dollar amounts, and then reduce equally for the three Highly Compensated Employees with the largest After-Tax and Roth Contribution dollar amounts, and so forth, until the sum of all such reductions equals the excess aggregate contributions for the Plan Year.
(b) The Administrator shall thereupon direct the Trustee to distribute the amounts by which After-Tax and Roth Contributions are reduced under subparagraph (a) above to the respective Highly Compensated Employees.
(c) To the extent the process described in subsection 10.5.4(a) is not sufficient to fully correct the excess aggregation contributions for the Plan Year, the same process will be used to reduce Matching Contributions for Highly Compensated Employees.
10.5.5 Order of Determinations.
The determination of excess aggregate contributions under this Section shall be made after (i) first determining the excess deferrals under Section 3.2, and (ii) then determining the excess contributions under Section 10.4.
10.5.6 Qualified Matching Contribution.
Notwithstanding the foregoing, within 12 months after the end of the Plan Year, an Employer may make a special Qualified Matching Contribution on behalf of a class of Participants designated by the Employer in an amount sufficient to satisfy the Actual Contribution Percentage test set forth in subsection 10.5.1.
10.6 Gap Period Income on Distributed Excess Contributions and Excess Aggregate Contributions.
This Section applies to excess contributions (as defined in Code §401(k)(8)(B)) and excess aggregate contributions (as defined in Code §401(m)(6)(B)). The Plan Administrator will not calculate and distribute allocable income for the gap period (i.e., the period after the close of the Plan Year in which the excess contribution or excess aggregate contribution occurred and prior to the distribution).
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10.7 Plan Termination Distribution Availability.
For purposes of determining whether the Employer maintains an alternative defined contribution plan (described in Treas. Reg. §1.401(k)-1(d)(4)(i)) that would prevent the Employer from distributing elective deferrals (and other amounts, such as QNECs, that are subject to the distribution restrictions that apply to elective deferrals) from a terminating 401(k) plan, an alternative defined contribution plan does not include an employee stock ownership plan defined in Code §§4975(e)(7) or 409(a), a simplified employee pension as defined in Code §408(k), a SIMPLE IRA plan as defined in Code §408(p), a plan or contract that satisfies the requirements of Code §403(b), or a plan that is described in Code §§457(b) or (f).
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11. PLAN LOANS
The Administrator is authorized to administer the loan program, and to adopt from time to time such forms and procedures as it considers necessary or appropriate to administer the loan program. The Administrator may appoint an agent to administer the loan program in accordance with the Administrators prescribed forms and procedures.
11.2 Conditions and Limitations
Plan loans made to Participants will be made on a reasonably equivalent basis. Plan loans may be subject to conditions and limitations adopted by the Administrator that are not inconsistent with the Plan and those conditions and limitations within this Section 11.2. Loans to a Participant shall not be made from such Participants Roth Account.
Employees, and other Participants who are parties in interest within the meaning of ERISA section 3(14), who have an Account balance, may apply for loans. A Participant may have only one outstanding loan at any one time.
11.2.2 Maximum Principal Amount
The maximum principal amount of any loan is the lesser of (i) fifty percent (50%) of the balance of the Participants Account, determined on the day of the loan, minus the balance of all other loans from all other qualified plans of the Employer, outstanding on that date, or (ii) $50,000, minus the highest outstanding principal balance of loans from the Plan, and from all other qualified plans of the Employer, to the Participant during the period of one year ending on the day preceding the origination of the loan being requested.
Amounts held in a Self-Directed Brokerage Fund, if any, will be included in the calculation of the maximum principal amount available for a loan but may not be used as a source for a loan. Therefore, if a Participant has amounts in a Self-Directed Brokerage Fund, the maximum that that Participant may borrow is the lesser of the maximum available amount calculated according to the formula described above or the Participants Account balance minus the portion held in the Participants Self-Directed Brokerage Fund.
11.2.3 Minimum Principal Amount
The minimum principal amount of any loan is $1,000.
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11.2.4 Duration
The repayment period of any general purpose loan will be no more than five (5) years. The repayment period of any primary residence loan will be no more than ten (10) years.
A loan will generally be repaid in substantially equal installments by payroll deduction from each paycheck. If the Participant is not an active Employee or if the amount of the Participants paycheck is insufficient to make any repayment when due, the Participant must make scheduled payments directly to the Trustee at the address provided by the Administrator.
Repayment will begin with the first payroll as soon as administratively practicable following the loan issuance.
If a Participant is granted an authorized unpaid leave of absence as determined by the Administrator, the Participants loan payments will be suspended for a period of up to one year upon request. When the Participant returns to active employment with the Employer, payments will resume through payroll deduction. The amount of each periodic payment will be adjusted, so that the unpaid balance will continue to be paid in equal installments in amounts sufficient to retire the entire loan indebtedness (principal and interest) by the original maturity date of the loan.
The distribution of the proceeds of a loan will be charged solely against the Participants Account, and against the various investments within that Account (excluding a Self-Directed Brokerage Fund) on a pro rata basis. All repayments of principal and interest will be credited solely to the Participants Account and invested in accordance with the Participants then current election option for new contributions (excluding elections to invest in any Self-Directed Brokerage Fund) as determined in Section 5.2. The unpaid principal balance of a loan will be reflected as a receivable for the Participants Account. The Participant will be required to pay the administrative expenses incurred by the Trustee and the Administrator in connection with a loan, and any such expenses not paid directly by the Participant will be charged against the Participants Account.
The rate of interest charged will be a reasonable rate that provides the Plan with a return commensurate with the interest rate charged by persons in the business of lending money for loans which would be made under similar circumstances. The rate will be determined in a manner prescribed in the Administrator's loan procedures as
adopted from time to time. The interest rate so determined will remain fixed throughout the duration of the loan.
Each loan will be secured by the assignment of up to fifty percent (50%) of the Participants Account balance. No other security will be required or accepted.
Other than for payments suspended during an authorized unpaid leave of absence, if a Participant fails to make an installment payment on a loan when due, and this failure continues for thirty (30) days, the loan will be treated as in default. The Administrator will give the Participant written notice of the right to cure the default by making up missed payments or repaying the loan in full. If a failure to make an installment repayment is not cured by ninety (90) days from the date of the first missed payment, the default will be final. The Plan is authorized to offset the entire outstanding amount of the loan against the Participants Account at the time the Participant is eligible for a distribution from the Plan. If a Participant experiences a default as described in this paragraph, that Participant will be ineligible for any future loans from the Plan.
If a distribution is required to be made under a QDRO affecting a Participants Account, and the distribution would exceed the amount of that Participants interest in the Plan, less the outstanding loan balance, then the loan will be deemed to be in default and will be immediately payable. The Participant will have ninety (90) days to cure this default. Failure to do so will result in the consequences outlined above, including ineligibility for any future loans from the Plan.
11.4 Termination of Employment
A Participant will have ninety (90) days from termination of employment to repay a loan in full (unless the Participant continues to be a party in interest within the meaning of ERISA section 3(14), in which case the Participant must continue to make scheduled payments directly to the Trustee when due). If the Participant is required to and does not repay a loan within ninety (90) days of termination, the unpaid loan balance will be treated as a distribution paid directly to the Participant. If a Participant takes a distribution of the Participants Account balance before repaying the Participants loan, the distribution will consist first of the unpaid loan balance and then of any remaining cash balance in the Participants Account. For any amounts actually distributed in cash the Participant will continue to have the ability to request a distribution in the form of IDACORP, Inc. stock.
11.5 Procedure for Applying for and Accepting Loans
The Administrator will establish procedures for applying for and accepting loans, which will create a legally enforceable agreement between the Participant and the Plan. At a minimum, by agreeing to the terms of the loan, a Participant will make an
46
irrevocable agreement to repay the loan through payroll deduction (provided the Participant is an active Employee at that time), and will assign and grant to the Plan a security interest of up to fifty percent (50%) of the balance of the Participants Account.
The Administrator will approve or deny loans based solely on the basis of this Article 11. There shall be no discretion to grant or deny a loan request. Denials shall be processed under the claims procedure rules of the Plan listed in Section 9.8.
The entire balance of the loan may be repaid at any time, without penalty or service fee, by certified check made payable to the Trustee, and sent to the address provided by the Administrator.
To the extent required by section 72(p) of the Code, the Trustee shall report, from time to time, distributions of income in connection with loans made under this Plan. The operation of those tax rules is entirely independent of the rules of the Plan.
This Plan shall make all disclosures required under federal truth-in-lending regulations (Regulation Z issued by the Board of Governors of the Federal Reserve System).
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12. RESTRICTIONS ON DISTRIBUTIONS TO PARTICIPANTS AND BENEFICIARIES
12.1 Priority over Other Distribution Provisions.
The provisions set forth in this Article supersede any conflicting provisions of this Plan.
12.2 Restrictions on Distributions Prior to Severance from Employment.
A Participants Deferral Contributions, Matching Contributions, and earnings attributable to these contributions will be distributed on account of the Participants severance from employment, regardless of when that severance from employment occurred; however, such a distribution shall be subject to the other provisions of the Plan regarding distributions.
12.3 Restrictions on Commencement of Distributions.
Unless a Participant elects otherwise, distribution of the Participants interest in his or her Accounts will begin no later than the 60th day after the close of the Plan Year in which occurs the latest of (i) the date on which the Participant attains age 65, (ii) the tenth anniversary of the Plan Year in which the Participant began participation in the Plan, and (iii) the Participants termination of employment.
12.4 Restrictions on Delay of Distributions.
Distribution of a Participants Account balance will commence not later than April 1 of the calendar year following the later of (1) the calendar year in which he or she attains age 70-1/2, or (2) termination of employment with the Controlled Group. Such Account will be distributed in a single lump-sum, unless the Participant is eligible to and elects to make partial withdrawals. If the Participant elects partial withdrawals, and the entire Account balance has not been distributed by the foregoing date, and if the partial withdrawals in each year do not equal the required mandatory minimum distribution under Code section 401(a)(9) and applicable regulations, then the Administrator will direct the Trustee to make such additional distributions as are necessary to satisfy the mandatory minimum distribution requirements of the Code.
A Participant or Beneficiary who would have been required to receive minimum required distributions for 2009 but for the enactment of Section 401(a)(9)(H) of the Code (2009 RMDs), and who would have satisfied that requirement by receiving distributions that are (1) equal to the 2009 RMDs or (2) one or more payments in a series of substantially equal distributions (that include the 2009 RMDs) made at least annually and expected to last for the life (or life expectancy) of the Participant, the joint lives (or joint life expectancies) of the Participant and the Participants designated Beneficiary, or for a period of at least 10 years ("Extended 2009 RMDs"), will not receive those distributions for 2009 unless the Participant or Beneficiary chooses to
48
receive such distributions. 2009 RMDs and Extended 2009 RMDs will also be treated as eligible rollover distributions in 2009.
12.4.1 Limitation to Assure Benefits Payable to Beneficiaries are Incidental.
Any payments to a Beneficiary must conform to the incidental benefit rules of Code section 401(a)(9)(G) and any regulations promulgated thereunder.
12.4.2 Restrictions Upon Death.
Upon the death of a Participant prior to the date identified in Section 12.4, survived by a Beneficiary who is not a surviving Spouse, the entire Account balance of the Participant shall be distributed to the Beneficiary within five years of the death of the Participant, unless the Beneficiary is a designated beneficiary, as provided in Subsection 7.4.3, in which event the Account balance may be distributed as provided therein. Prior to the end of the five year period and if the Beneficiary is otherwise eligible, the Beneficiary may elect to make partial withdrawals under the terms of Article 7, provided the entire Account balance is distributed prior to the end of the five year period.
Upon the death of a Participant prior to the date identified in Section 12.4, survived by a Beneficiary who is a surviving Spouse, distributions of the Account balance must commence on or before the later of (1) December 31 of the calendar year following the calendar year in which the Participant died, or (2) December 31 of the calendar year in which the Participant would have attained age 70-1/2. If the surviving Spouse is otherwise eligible, the surviving Spouse may elect to make partial withdrawals under the terms of Article 7, provided that after the date by which distributions must commence as provided in this paragraph, if partial withdrawals are less than the minimum mandatory distributions required under Code section 401(a)(9) and applicable regulations, then the Administrator will direct the Trustee to make such additional distributions as necessary to satisfy the mandatory minimum distribution requirements of the Code.
Upon the death of a Participant with an Account balance on or after the date identified in Section 12.4, distribution of the Participants Account balance to his or her Beneficiary must proceed at least as rapidly as it would have been distributed had the Participant survived. If the Beneficiary is eligible for and makes partial withdrawals that are less than the minimum mandatory distributions required under Code section 401(a)(9) and applicable regulations, then the Administrator will direct the Trustee to make such additional distributions as are necessary to satisfy the mandatory minimum distribution requirements of the Code.
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12.4.3 Compliance with Regulations.
The Plan will apply the minimum distribution requirements of Code section 401(a)(9) in accordance with the regulations under section 401(a)(9), notwithstanding any provision of the Plan to the contrary.
If the amount of a distribution required to begin on a date determined under the applicable provisions of the Plan cannot be ascertained by such date, or if it is not possible to make such payment on such date because the Administrator has been unable to locate a Participant or Beneficiary after making reasonable efforts to do so, a payment retroactive to such date may be made no later than 60 days after the earliest date on which the amount of such payment can be ascertained or the date on which the Participant or Beneficiary is located (whichever is applicable).
Notwithstanding the foregoing, a five-percent owner Participant must commence to receive his or her Account balance not later than April 1 of the calendar year following the calendar year in which he or she attains age 70-1/2. A Participant is treated as a five-percent owner for purposes of this subsection if the Participant is a five-percent owner as defined in Code section 416(i) (determined according to section 416 but without regard to whether the Plan is top-heavy) at any time during the Plan Year ending in the calendar year in which the owner attains age 70-1/2.
12.5 Restrictions in Connection with QDRO.
No distribution (including but not limited to hardship distributions, rollovers, transfers to other plans, and loans) may be made to a Participant during the period in which the Administrator is making a determination of whether a domestic relations order affecting the Participants Accounts is a QDRO. Furthermore, if the Administrator has received a written document indicating that a QDRO affecting a Participants Accounts is being sought, it may prohibit such Participant from commencing to receive a distribution (or from taking a loan) until the Administrator has determined that such distribution would not be inconsistent with any such order or that no such order will be submitted. If the Administrator is in receipt of a QDRO with respect to any Participants benefits, it may prohibit such Participant from receiving a distribution until the Alternate Payees rights under such order are satisfied. A domestic relations order that otherwise satisfies the requirements for a qualified domestic relations order (QDRO) will not fail to be a QDRO: (i) solely because the order is issued after, or revises, another domestic relations order or QDRO; or (ii) solely because of the time at which the order is issued, including issuance after the annuity starting date or after the Participants death.
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13. TOP HEAVY PROVISIONS
13.1 Priority over Other Plan Provisions.
If the Plan is or becomes a Top-Heavy Plan in any Plan Year, the provisions of this Article will supersede any conflicting provisions of the Plan. However, the provisions of this Article will not operate to increase the rights or benefits of Participants under the Plan except to the extent required by Code section 416 and other provisions of law applicable to Top Heavy Plans.
13.2 Definitions Used in this Article.
The following words and phrases will have the meanings set forth below for purposes of this Article only.
13.2.1 Defined Benefit Dollar Limitation
Defined Benefit Dollar Limitation means $195,000 (or such larger amount as is determined by the Secretary of the Treasury in accordance with Code section 415(d)(1)).
Defined Benefit Plan means the Qualified Plan described in subsection 10.2.3.
13.2.3 Defined Contribution Dollar Limitation
Defined Contribution Dollar Limitation means $49,000 (or such larger amount as is determined by the Secretary of Treasury in accordance with Code section 415(d)(1)).
13.2.4 Defined Contribution Plan
Defined Contribution Plan means the Qualified Plan described in subsection 10.2.4.
Determination Date means for the first Plan Year of the Plan the last day of the Plan Year and for any subsequent Plan Year the last day of the preceding Plan Year.
Determination Period means the Plan Year containing the Determination Date, and the prior Plan Year, except that, with respect to any distribution made for a reason other than separation from service, death, or disability, the Determination Period shall include the Plan Year containing the Determination Date and the previous five (5) Plan Years.
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13.2.7 Includable Compensation
Includable Compensation means the compensation described in subsection 10.2.7, limited as set forth in subsection 1.10.1.
Key Employee means any employee or former employee (including any deceased employee) who at any time during the Plan Year that includes the Determination Date was an officer of a Controlled Group Member having Compensation greater than $150,000 (as adjusted under Code section 416(i)(1)), a 5-percent owner of a Controlled Group Member, or a 1-percent owner of a Controlled Group Member having Compensation of more than $150,000. The determination of who is a Key Employee will be made in accordance with Code section 416(i)(1) and the applicable regulations and other guidance of general applicability issued thereunder.
Minimum Allocation means the allocation described in the first sentence of subsection 13.3.1.
13.2.10 Permissive Aggregation Group
Permissive Aggregation Group means the Required Aggregation Group of Qualified Plans plus any other Qualified Plan or Qualified Plans of a Controlled Group Member which, when considered as a group with the Required Aggregation Group, would continue to satisfy the requirements of Code Sections 401(a)(4) and 410.
Present Value means present value based only on the interest and mortality rates specified in a Defined Benefit Plan.
13.2.12 Required Aggregation Group
Required Aggregation Group means the group of plans consisting of (i) each Qualified Plan of a Controlled Group Member in which at least one Key Employee participates or participated at any time during the Determination Period (regardless of whether the Qualified Plan has terminated) and (ii) any other Qualified Plan of a Controlled Group Member which enables a Qualified Plan to meet the requirements of Code Sections 401(a)(4) or 410.
Top-Heavy Plan means the Plan for any Plan Year in which any of the following conditions exists: (i) if the Top-Heavy Ratio for the Plan exceeds 60% and the Plan is not a part of any Required Aggregation Group or Permissive Aggregation Group of Qualified Plans; (ii) if the Plan is a part of a Required Aggregation Group but not part of a Permissive Aggregation Group of Qualified Plans and the Top-Heavy Ratio for the Required Aggregation Group exceeds 60%; or (iii) if the Plan is a part of a Required Aggregation Group and part of
a Permissive Aggregation Group of Qualified Plans and the Top-Heavy Ratio for the Permissive Aggregation Group exceeds 60%.
Top-Heavy Ratio means a fraction, the numerator of which is the sum of the Present Value of accrued benefits and the account balances (as required by Code section 416) of all Key Employees with respect to such Qualified Plans as of the Determination Date (including any part of any accrued benefit or Account balance distributed during the appropriate Determination Period as determined in accordance with Section 13.2.6), and the denominator of which is the sum of the Present Value of the accrued benefits and the account balances (including any part of any accrued benefit or Account balance distributed during the appropriate Determination Period as determined in accordance with Section 13.2.6) of all Employees with respect to such Qualified Plans as of the Determination Date. The value of account balances and the Present Value of accrued benefits will be determined as of the most recent Top-Heavy Valuation Date that falls within or ends with the 12 month period ending on the Determination Date, except as provided in Code section 416 for the first and second Plan Years of a Defined Benefit Plan. The account balances and accrued benefits of a participant who is not a Key Employee but who was a Key Employee in a prior year will be disregarded. The calculation of the Top-Heavy Ratio, and the extent to which distributions, rollovers, transfers and contributions unpaid as of the Determination Date are taken into account will be made in accordance with Code section 416. Employee contributions described in Code section 219(e)(2) will not be taken into account for purposes of computing the Top-Heavy Ratio. When aggregating plans, the value of account balances and accrued benefits will be calculated with reference to the Determination Dates that fall within the same calendar year. The accrued benefit of any Employee other than a Key Employee will be determined under the method, if any, that uniformly applies for accrual purposes under all Qualified Plans maintained by all Controlled Group Members and included in a Required Aggregation Group or a Permissive Aggregation Group or, if there is no such method, as if the benefit accrued not more rapidly than the slowest accrual rate permitted under the fractional accrual rate of Code section 411(b)(1)(C). Notwithstanding the foregoing, the account balances and accrued benefits of any Employee who has not performed services for an employer maintaining any of the aggregated plans during the one-year period ending on the Determination Date will not be taken into account for purposes of this section.
13.2.15 Top-Heavy Valuation Date
Top-Heavy Valuation Date means the last day of each Plan Year.
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13.3 Minimum Allocation.
13.3.1 Calculation of Minimum Allocation.
For any Plan Year in which the Plan is a Top-Heavy Plan, each Participant who is not a Key Employee will receive an allocation of Employer contributions and forfeitures of not less than the lesser of 3% of his or her Includable Compensation for such Plan Year or, if the Controlled Group Members maintain no Defined Benefit Plan which covers a Participant in this Plan, the percentage of Includable Compensation that equals the largest percentage of Employer contributions and forfeitures allocated to a Key Employee expressed as a percentage of the first $160,000 (or such other amount as is determined by the Secretary under Code section 401(a)(17) to be in effect for that year) of Includable Compensation received by such Key Employee in that Plan Year. The Minimum Allocation applies even though under other Plan provisions the Participant would not otherwise be entitled to receive an allocation, or would have received a lesser allocation for the Plan Year because (i) the non Key Employee fails to make mandatory contributions to the Plan, (ii) the non Key Employees Compensation is less than a stated amount, or (iii) the non Key Employee fails to complete 3 months of service in the Plan Year. Matching Contributions shall be taken into account for purposes of satisfying the Minimum Allocation requirements of Code section 416(c)(2) and the Plan. Matching Contributions that are used to satisfy the Minimum Allocation requirements shall be treated as Matching Contributions for purposes of the actual contribution test of Section 10.7 and applicable provisions of Code section 401(m).
13.3.2 Limitation on Minimum Allocation.
No Minimum Allocation will be provided pursuant to subsection 13.3.1 to a Participant who is not employed by a Controlled Group Member on the last day of the Plan Year.
13.3.3 Minimum Allocation When Participant is Covered by Another Qualified Plan.
If a Controlled Group Member maintains one or more other Defined Contribution Plans covering Employees who are Participants in this Plan, the Minimum Allocation will be provided under this Plan, unless such other Defined Contribution Plans make explicit reference to this Plan and provide that the Minimum Allocation will not be provided under this Plan, in which case the provisions of subsection 13.3.1 will not apply to any Participant covered under such other Defined Contribution Plans. If a Controlled Group Member maintains one or more Defined Benefit Plans covering Employees who are Participants in this Plan, and such Defined Benefit Plans provide that Employees who are participants therein will accrue the minimum benefit applicable to top heavy Defined Benefit Plans notwithstanding their participation in this Plan (making explicit reference to this Plan), then the provisions of subsection 13.3.1 will not apply to any Participant covered under such Defined Benefit Plans. If a Controlled Group Member maintains one or more Defined Benefit Plans covering Employees who are Participants in this Plan, and the provisions of the preceding sentence do not apply, then each Participant
54
who is not a Key Employee and who is covered by such Defined Benefit Plans will receive a Minimum Allocation determined by applying the provisions of subsection 13.3.1 with the substitution of 5% in each place that 3% occurs therein.
13.4 Modification of Aggregate Benefit Limit.
Subject to the provisions of subsection 13.4.2, in any Plan Year in which the Top Heavy Ratio exceeds 60%, the aggregate benefit limit described in Article 10 will be modified by substituting 100% for 125% in subsections 10.2.3 and 10.2.4.
The modification of the aggregate benefit limit described in subsection 13.4.1 will not be required if the Top-Heavy Ratio does not exceed 90% and one of the following conditions is met: (i) Employees who are not Key Employees do not participate in both a Defined Benefit Plan and a Defined Contribution Plan which are in the Required Aggregation Group, and the Minimum Allocation requirements of subsection 13.3.1 are met when such requirements are applied with the substitution of 4% for 3%; (ii) the Minimum Allocation requirements of subsection 13.3.3 are met when such requirements are applied with the substitution of 7 1/2% for 5%; or (iii) Employees who are not Key Employees accrue a benefit for such Plan Year of not less than 3% of their average Includable Compensation for the five consecutive Plan Years in which they had the highest Includable Compensation (not to exceed a total such benefit of 30%), expressed as a life annuity commencing at the Participants normal retirement age in a Defined Benefit Plan which is in the Required Aggregation Group.
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14. PARTICIPATING EMPLOYERS
Notwithstanding anything herein to the contrary, with the consent of the Company, any Controlled Group Member may adopt this Plan and all of the provisions hereof, and participate herein and be known as a Participating Employer. The following are the Participating Employers:
14.2 Single Plan Status; Maintenance of Assets and Records.
It is intended that the Plan constitute a single Plan within the meaning of Treas. Reg. section 1.414(l)-1(b)(1). Accordingly, the Trustee may, but shall not be required to, commingle, hold and invest as one Trust Fund all contributions made by Employers, as well as all increments thereon. However, the assets of the Plan shall be available at all times to pay benefits to all Participants and Beneficiaries under the Plan without regard to the Employer who contributed such assets.
Each Participating Employer shall be deemed to be a party to this Plan; provided, however, that with respect to all of its relations with the Trustee and Administrator for the purpose of this Plan and with respect to any amendment or termination of the Plan, each Participating Employer shall be deemed to have designated irrevocably Idaho Power Company as its agent. Unless the context of the Plan clearly indicates the contrary, the word Employer shall be deemed to include each Participating Employer as related to its adoption of the Plan.
It is anticipated that an Employee may be transferred between Participating Employers, and in the event of any such transfer, the Employee involved shall carry with him or her accumulated service and eligibility. No such transfer shall effect a termination of employment hereunder, and the Participating Employer to which the Employee is transferred shall thereupon become obligated hereunder with respect to such Employee in the same manner as was the Participating Employer from whom the Employee was transferred.
14.5 Discontinuance of Participation.
Any Participating Employer shall be permitted to discontinue or revoke its participation in the Plan, but only with the consent of the Company. At the time of any such discontinuance or revocation, satisfactory evidence thereof and of any applicable conditions imposed shall be delivered to the Administrator. The Administrator shall
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thereafter direct the transfer of
all Trust Fund assets allocable to the Participants of such Participating
Employer to such new Trustee as shall have been designated by such
Participating Employer, in the event that it has established a separate pension
plan for its Employees, provided however, that no such transfer shall be made
if the result is the elimination or reduction of any Code section 411(d)(6)
protected benefits. If no successor is designated, the Trustee shall retain
such assets for the Employees of said Participating Employer pursuant to the
provisions of this Plan. In no such event shall any part of the corpus or
income of the Trust as it relates to such Participating Employer be used for or
diverted to purposes other than for the exclusive benefit of the Employees of
such Participating Employer. A discontinuance or revocation of an Employers
participation in the Plan shall not, by itself, constitute a termination of
employment with the Controlled Group for any Employee of such Employer.
14.6 Administrators Authority.
The Administrator shall have authority to make any and all necessary rules or regulations, binding upon all Participating Employers and all Participants, to effectuate the purpose of this Article.
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15. AMENDMENT OF THE PLAN
15.1 Right of Company to Amend Plan.
The Company reserves the right to amend the Plan in whole or in part at any time and from time to time to the extent it may deem advisable or appropriate, provided that: (i) no amendment will increase the duties or liabilities of the Trustee without its written consent; (ii) no amendment will cause a reversion of Plan assets to the Employers not otherwise permitted under the Plan; (iii) no amendment will have the effect of reducing the percentage of the vested and nonforfeitable interest of any Participant in his or her Accounts nor will the vesting provisions of the Plan be amended unless each Participant with at least three Years of Service (including Years of Service disregarded pursuant to the reemployment provisions herein) is permitted to elect to continue to have the prior vesting provisions apply, within 60 days after the latest of the date on which the amendment is adopted, the date on which the amendment is effective and the date on which the Participant is issued written notice of the amendment; and (iv) no amendment will be effective to the extent that it has the effect of decreasing a Participants Account balance or eliminating an optional form of distribution as it applies to an existing Account balance, except as may be permitted by Treasury regulations.
Any amendment to the Plan will be evidenced in writing and made either by action of the Board, or by the Company acting in accordance with any procedure authorized by the Board. Upon execution of the instrument of amendment by an officer of the Company, the Plan shall be deemed amended as of the effective date specified in such instrument. If no effective date is specified, the effective date shall be the date of execution of such instrument. The effective date may be before, on or after the date of execution and before, on or after the date of any action taken with respect to such amendment.
Unless an amendment expressly provides otherwise, all Employers will be bound by any amendment to the Plan.
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16. TERMINATION, PARTIAL TERMINATION AND COMPLETE DISCONTINUANCE OF CONTRIBUTIONS
The Employers expect to continue the Plan indefinitely, but they do not assume an individual or collective contractual obligation to do so, and the right is reserved to the Company to terminate the Plan or to completely discontinue contributions thereto at any time. In addition, subject to the remaining provisions of this Article, any Employer at any time may discontinue its participation in the Plan with respect to its Employees.
16.2 Disposition of the Trust Fund.
If the Plan is terminated, or if there is a complete discontinuance of contributions to the Plan, the Administrator will instruct the Trustee either (i) to continue to administer the Plan and pay benefits in accordance with the Plan until the Trust Fund has been depleted, or (ii) to distribute the assets remaining in the Trust Fund. If the Trust Fund is to be distributed, the Administrator will make, after deducting estimated expenses for termination of the Trust Fund and distribution of its assets, the allocations required under the Plan as though the date of completion of the Trust Fund termination were a Valuation Date. The Trustee will distribute to each Participant the amount credited to his or her Account as of the date of completion of the Trust Fund termination.
16.3 Withdrawal by a Participating Employer.
See Section 13.5 for requirements for withdrawal by a Participating Employer.
16.4 Procedure for Termination.
Any termination of the Plan shall be evidenced in writing and made either by action of the Board, or by the Company acting in accordance with any procedure authorized by the Board. Upon execution of the instrument of termination by the Company, the Plan shall be deemed terminated as of the effective date specified in such instrument. If no effective date is specified, the effective date shall be the date of execution of such instrument. The effective date may be before, on or after the date of execution and before, on or after the date of any action taken by the Board with respect to such termination.
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17. MISCELLANEOUS
Except as specifically provided otherwise herein, it will be impossible for any part of the Trust Fund either (i) to be used for or diverted to purposes other than those which are for the exclusive benefit of Participants and their Beneficiaries (except for the payment of taxes and administrative expenses) or (ii) to revert to a Controlled Group Member.
Each contribution of the Employers under the Plan is expressly conditioned upon the deductibility of the contribution under Code section 404. If all or part of an Employers contribution is disallowed as a deduction under Code section 404, such disallowed amount (reduced by any Trust Fund losses attributable thereto) may be returned by the Trustee to the Employer with respect to which the deduction was disallowed (upon the direction of the Administrator) within one year after the disallowance.
17.1.3 Mistaken Contributions.
If a contribution is made by an Employer by reason of a mistake of fact, then so much of the contribution as was made as a result of the mistake (reduced by any Trust Fund losses attributable thereto) may be returned by the Trustee to the Employer (upon direction of the Administrator) within one year after the mistaken contribution was made.
17.2 Merger, Consolidation or Transfer of Assets.
There will be no merger or consolidation of all or any part of the Plan with, or transfer of the assets or liabilities of all or any part of the Plan to, any other Qualified Plan unless each Participant who remains a Participant hereunder and each Participant who becomes a participant in the other Qualified Plan would receive a benefit immediately after the merger, consolidation or transfer (determined as if the other Qualified Plan and the Plan were then terminated) which is equal to or greater than the benefit they would have been entitled to receive under the Plan immediately before the merger, consolidation or transfer if the Plan had then terminated.
The rights of any Participant or Beneficiary to and in any benefits under the Plan will not be subject to assignment or alienation, and no Participant or Beneficiary will have the power to assign, transfer or dispose of such rights, nor will any such rights to benefits be subject to attachment, execution, garnishment, sequestration, the laws of bankruptcy or any other legal or equitable process. Notwithstanding the foregoing, the
60
Administrator
and Trustee shall honor a QDRO and may distribute amounts from the Plan to an
Alternate Payee described in any such order in accordance with the terms of the
order and prior to the earliest retirement date specified in section 414(p)(4)(B)
of the Code. The Administrator shall establish procedures to determine the
qualified status of domestic relations orders and to administer the provisions
of, and distributions under, such orders in accordance with section 414(p) of
the Code.
Participation in the Plan will not give any Participant the right to be retained in the employ of a Controlled Group Member or any right or interest in the Plan or the Trust Fund except as expressly provided herein.
Headings of Articles, Sections and subsections as used herein are inserted solely for convenience and reference and constitute no part of the Plan.
The Plan will be construed and governed in all respects in accordance with applicable federal law and, to the extent not preempted by such federal law, in accordance with the laws of the State of Idaho applicable to contracts to be performed entirely within that State.
Executed this 31st day of December , 2009.
Idaho Power Company
By /s/Luci McDonald
Luci McDonald
Vice President, Human Resources
61
Exhibit 10.66
IDACORP, Inc.
and/or Idaho Power Executive Officers
with Amended and Restated Change in Control Agreements Chart
Name |
Title |
Date of Agreement |
J. LaMont Keen |
President and Chief Executive Officer, IDACORP and Idaho Power |
12/29/08 |
Darrel T. Anderson |
Executive Vice President Administrative Services and Chief Financial Officer, IDACORP and Idaho Power |
12/23/08 |
Daniel B. Minor |
Executive Vice President Operations, Idaho Power |
12/30/08 |
Rex Blackburn |
Senior Vice President and General Counsel, IDACORP and Idaho Power |
4/1/09 |
Lisa A. Grow |
Senior Vice President Power Supply, Idaho Power |
12/12/08 |
Steven R. Keen |
Vice President and Treasurer, IDACORP and Idaho Power |
12/30/08 |
Dennis C. Gribble |
Vice President and Chief Information Officer, IDACORP and Idaho Power |
12/11/08 |
Lori D. Smith |
Vice President Corporate Planning and Chief Risk Officer, IDACORP and Idaho Power |
12/31/08 |
Luci K. McDonald |
Vice President Human Resources, IDACORP and Idaho Power |
12/20/08 |
Naomi Shankel |
Vice President Audit and Compliance, IDACORP and Idaho Power |
12/9/08 |
Jeffrey L. Malmen |
Vice President Public Affairs, IDACORP and Idaho Power |
12/10/08 |
John R. Gale |
Vice President Regulatory Affairs, Idaho Power |
12/12/08 |
Warren Kline |
Vice President Customer Service and Regional Operations, Idaho Power |
12/15/08 |
Patrick A. Harrington |
Corporate Secretary, IDACORP and Idaho Power |
12/9/08 |
EXHIBIT 23
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in Registration Statement Nos. 333-155498 and 333-155645 on Form S-3 and Registration Statement Nos. 333-65406, 333-125259, 333-143404, and 333-159855 on Form S-8 of IDACORP, Inc. and Registration Statement No. 333-66496 on Form S-8 of Idaho Power Company of our reports dated February 23, 2010, relating to the consolidated financial statements and financial statement schedules of IDACORP, Inc. (which report expresses an unqualified opinion and includes an explanatory paragraph relating to the adoption of accounting guidance for noncontrolling interests and for uncertainty in income taxes) and Idaho Power Company (which report expresses an unqualified opinion and includes an explanatory paragraph relating to the adoption of accounting guidance for uncertainty in income taxes), and the effectiveness of IDACORP, Inc.s and Idaho Power Companys internal control over financial reporting, appearing in this Annual Report on Form 10-K of IDACORP, Inc. and Idaho Power Company for the year ended December 31, 2009.
/s/ DELOITTE & TOUCHE LLP
Boise, Idaho
February 23, 2010
Exhibit 31.1
CERTIFICATION
I, J. LaMont Keen, certify
that:
1. I have reviewed this Annual
Report on Form 10-K, of IDACORP, Inc.;
2. Based on my knowledge, this report does not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under
which such statements were made, not misleading with respect to the period
covered by this report;
3. Based on my knowledge, the financial statements,
and other financial information included in this report, fairly present in all
material respects the financial condition, results of operations and cash flows
of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer and I are
responsible for establishing and maintaining disclosure controls and procedures
(as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control
over financial reporting (as defined in Exchange Act Rules 13a-15(f) and
15d-15(f)) for the registrant and we have:
a)
Designed such disclosure controls
and procedures, or caused such disclosure controls and procedures to be
designed under our supervision, to ensure that material information relating to
the registrant, including its consolidated subsidiaries, is made known to us by
others within those entities, particularly during the period in which this
report is being prepared;
b)
Designed such internal control
over financial reporting, or caused such internal control over financial
reporting to be designed under our supervision, to provide reasonable assurance
regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with generally
accepted accounting principles;
c)
Evaluated the effectiveness of the
registrant's disclosure controls and procedures and presented in this report
our conclusions about the effectiveness of the disclosure controls and
procedures, as of the end of the period covered by this report based on such
evaluation; and
d)
Disclosed in this report any
change in the registrant's internal control over financial reporting that
occurred during the registrant's most recent fiscal quarter (the registrant's
fourth fiscal quarter in the case of an annual report) that has materially
affected, or is reasonably likely to materially affect the registrant's
internal control over financial reporting; and
5. The registrant's other certifying officer and I
have disclosed, based on our most recent evaluation of internal control over
financial reporting, to the registrant's auditors and the audit committee of
the registrant's board of directors (or persons performing the equivalent
functions):
a)
All significant deficiencies and
material weaknesses in the design or operation of internal control over
financial reporting which are reasonably likely to adversely affect the
registrant's ability to record, process, summarize and report financial
information; and
b)
Any fraud, whether or not
material, that involves management or other employees who have a significant
role in the registrant's internal control over financial reporting.
Date: |
February 23, 2010 |
By: |
/s /J. LaMont Keen |
|
J. LaMont Keen |
||
|
President and Chief Executive Officer |
|
Exhibit 31.2
CERTIFICATION
I, Darrel T. Anderson,
certify that:
1. I have reviewed this Annual
Report on Form 10-K, of IDACORP, Inc.;
2. Based on my knowledge, this report does not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under
which such statements were made, not misleading with respect to the period
covered by this report;
3. Based on my knowledge, the financial statements,
and other financial information included in this report, fairly present in all
material respects the financial condition, results of operations and cash flows
of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer and I are
responsible for establishing and maintaining disclosure controls and procedures
(as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control
over financial reporting (as defined in Exchange Act Rules 13a-15(f) and
15d-15(f)) for the registrant and we have:
a)
Designed such disclosure controls
and procedures, or caused such disclosure controls and procedures to be
designed under our supervision, to ensure that material information relating to
the registrant, including its consolidated subsidiaries, is made known to us by
others within those entities, particularly during the period in which this
report is being prepared;
b)
Designed such internal control
over financial reporting, or caused such internal control over financial
reporting to be designed under our supervision, to provide reasonable assurance
regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with generally
accepted accounting principles;
c)
Evaluated the effectiveness of the
registrant's disclosure controls and procedures and presented in this report
our conclusions about the effectiveness of the disclosure controls and
procedures, as of the end of the period covered by this report based on such evaluation;
and
d)
Disclosed in this report any
change in the registrant's internal control over financial reporting that
occurred during the registrant's most recent fiscal quarter (the registrant's
fourth fiscal quarter in the case of an annual report) that has materially
affected, or is reasonably likely to materially affect the registrant's
internal control over financial reporting; and
5. The registrant's other certifying officer and I
have disclosed, based on our most recent evaluation of internal control over
financial reporting, to the registrant's auditors and the audit committee of
the registrant's board of directors (or persons performing the equivalent
functions):
a)
All significant deficiencies and
material weaknesses in the design or operation of internal control over
financial reporting which are reasonably likely to adversely affect the
registrant's ability to record, process, summarize and report financial
information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
Date: |
February 23, 2010 |
By: |
/s/Darrel T. Anderson |
|
|
|
Darrel T. Anderson |
|
|
|
Executive Vice President - Administrative Services |
|
|
|
and Chief Financial Officer |
|
Exhibit 31.3
CERTIFICATION
I, J. LaMont Keen, certify
that:
1. I have reviewed this Annual
Report on Form 10-K, of Idaho Power Company;
2. Based on my knowledge, this report does not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under
which such statements were made, not misleading with respect to the period
covered by this report;
3. Based on my knowledge, the financial statements,
and other financial information included in this report, fairly present in all
material respects the financial condition, results of operations and cash flows
of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer and I are
responsible for establishing and maintaining disclosure controls and procedures
(as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control
over financial reporting (as defined in Exchange Act Rules 13a-15(f) and
15d-15(f)) for the registrant and we have:
a)
Designed such disclosure controls
and procedures, or caused such disclosure controls and procedures to be
designed under our supervision, to ensure that material information relating to
the registrant, including its consolidated subsidiaries, is made known to us by
others within those entities, particularly during the period in which this
report is being prepared;
b)
Designed such internal control
over financial reporting, or caused such internal control over financial reporting
to be designed under our supervision, to provide reasonable assurance regarding
the reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally accepted
accounting principles;
c)
Evaluated the effectiveness of the
registrant's disclosure controls and procedures and presented in this report
our conclusions about the effectiveness of the disclosure controls and
procedures, as of the end of the period covered by this report based on such evaluation;
and
d)
Disclosed in this report any
change in the registrant's internal control over financial reporting that
occurred during the registrant's most recent fiscal quarter (the registrant's
fourth fiscal quarter in the case of an annual report) that has materially
affected, or is reasonably likely to materially affect the registrant's
internal control over financial reporting; and
5. The registrant's other certifying officer and I
have disclosed, based on our most recent evaluation of internal control over
financial reporting, to the registrant's auditors and the audit committee of
the registrant's board of directors (or persons performing the equivalent
functions):
a)
All significant deficiencies and
material weaknesses in the design or operation of internal control over
financial reporting which are reasonably likely to adversely affect the
registrant's ability to record, process, summarize and report financial
information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
Date: |
February 23, 2010 |
By: |
/s/ J. LaMont Keen |
|
|
|
|
|
J. LaMont Keen |
|
|
|
|
President and Chief Executive Officer |
|
Exhibit 31.4
CERTIFICATION
I, Darrel T. Anderson,
certify that:
1. I have reviewed this Annual
Report on Form 10-K, of Idaho Power Company;
2. Based on my knowledge, this report does not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under
which such statements were made, not misleading with respect to the period
covered by this report;
3. Based on my knowledge, the financial statements,
and other financial information included in this report, fairly present in all
material respects the financial condition, results of operations and cash flows
of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer and I are
responsible for establishing and maintaining disclosure controls and procedures
(as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control
over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f))
for the registrant and we have:
a)
Designed such disclosure controls
and procedures, or caused such disclosure controls and procedures to be
designed under our supervision, to ensure that material information relating to
the registrant, including its consolidated subsidiaries, is made known to us by
others within those entities, particularly during the period in which this
report is being prepared;
b)
Designed such internal control
over financial reporting, or caused such internal control over financial reporting
to be designed under our supervision, to provide reasonable assurance regarding
the reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally accepted
accounting principles;
c)
Evaluated the effectiveness of the
registrant's disclosure controls and procedures and presented in this report
our conclusions about the effectiveness of the disclosure controls and
procedures, as of the end of the period covered by this report based on such
evaluation; and
d)
Disclosed in this report any
change in the registrant's internal control over financial reporting that
occurred during the registrant's most recent fiscal quarter (the registrant's
fourth fiscal quarter in the case of an annual report) that has materially
affected, or is reasonably likely to materially affect the registrant's
internal control over financial reporting; and
5. The registrant's other certifying officer and I
have disclosed, based on our most recent evaluation of internal control over
financial reporting, to the registrant's auditors and the audit committee of
the registrant's board of directors (or persons performing the equivalent
functions):
a)
All significant deficiencies and
material weaknesses in the design or operation of internal control over
financial reporting which are reasonably likely to adversely affect the
registrant's ability to record, process, summarize and report financial
information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
Date: |
February 23, 2010 |
By: |
/s/Darrel T. Anderson |
|
|
|
Darrel T. Anderson |
|
|
|
Executive Vice President - Administrative Services |
|
|
|
and Chief Financial Officer |
|
Exhibit 32.1
CERTIFICATION
PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report of IDACORP, Inc. (the
"Company") on Form 10-K for the year ended December 31, 2009, (the
"Report"), I, J. LaMont Keen, President and Chief Executive Officer
of the Company, certify that:
(1)
The Report fully complies with the requirements of Section 13(a) of the
Securities Exchange Act of 1934; and
(2)
The information contained in the Report fairly presents, in all material
respects, the financial condition and results of operations of the Company.
/s/J. LaMont Keen |
J. LaMont Keen |
President and Chief Executive Officer |
February 23, 2010 |
|
Exhibit 32.2
CERTIFICATION
PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report of IDACORP, Inc. (the
"Company") on Form 10-K for the year ended December 31, 2009, (the
"Report"), I, Darrel T. Anderson, Executive Vice President -
Administrative Services and Chief Financial Officer of the Company, certify
that:
(1)
The Report fully complies with the requirements of Section 13(a) of the
Securities Exchange Act of 1934; and
(2)
The information contained in the Report fairly presents, in all material
respects, the financial condition and results of operations of the Company.
/s/Darrel T. Anderson |
Darrel T. Anderson |
Executive Vice President - Administrative Services |
and Chief Financial Officer |
February 23, 2010 |
Exhibit 32.3
CERTIFICATION
PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report of Idaho Power Company (the "Company") on Form 10-K for the year ended December 31, 2009, (the "Report"), I, J. LaMont Keen, President and Chief Executive Officer of the Company, certify that:
(1) The Report fully complies with the requirements of Section 13(a) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
/s/J. LaMont Keen |
J. LaMont Keen |
President and Chief Executive Officer |
February 23, 2010 |
|
Exhibit 32.4
CERTIFICATION
PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report of Idaho Power Company (the "Company") on Form 10-K for the year ended December 31, 2009, (the "Report"), I, Darrel T. Anderson, Executive Vice President - Administrative Services and Chief Financial Officer of the Company, certify that:
(1) The Report fully complies with the requirements of Section 13(a) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
/s/Darrel T. Anderson |
Darrel T. Anderson |
Executive Vice President - Administrative Services |
and Chief Financial Officer |
February 23, 2010 |
Exhibit 99
IDACORP
February 23, 2010
FOR IMMEDIATE RELEASE
Lawrence F. Spencer
Director of Investor Relations
Phone: (208) 388-2664
lspencer@idacorpinc.com
IDACORP, Inc. Announces Year-End and Fourth Quarter 2009 Results
BOISEIDACORP, Inc. (NYSE:IDA) reported 2009 net income attributable to IDACORP, Inc. of $124.4 million or $2.64 per diluted share, compared to $98.4 million or $2.17 per diluted share in 2008. IDACORP reported fourth quarter 2009 net income attributable to IDACORP, Inc. of $23.5 million or $0.49 per diluted share, compared to $7.4 million or $0.16 per diluted share in the fourth quarter of 2008. Idaho Power Company, IDACORPs principal subsidiary, reported fourth quarter net income of $25.9 million compared to $7.7 million in 2008.
We resourcefully managed our business and achieved increased returns for our owners while moving forward on capital investments necessary to enable future economic development across the communities we serve, said IDACORP, Inc. and Idaho Power Company CEO J. LaMont Keen. We remain focused on our core utility business guided by our vision to be regarded as an exceptional utility by our customers, our owners and by others with whom we interact.
Our hard work is being recognized on many fronts, and overall 2009 was a very successful year, added Keen. A purposeful regulatory strategy and diligence in preserving our financial strength while remaining mindful of the adverse economic conditions around us produced positive results. We enter 2010 financially healthy with a two year regulatory framework established in our Idaho retail jurisdiction and our Langley Gulch Power Plant on schedule to come on line in 2012, positioning us to meet the customer needs we foresee coming out of the economic downturn.
Page 1 of 5
Performance Summary
A summary of
IDACORPs and each IDACORP subsidiarys net income for the three months
and twelve months ended December 31, 2009 to 2008 is as follows:
Three months ended |
Year ended |
||||||||
|
December 31, |
December 31, |
|||||||
|
2009 |
2008 |
2009 |
2008 |
|||||
(in thousands except per diluted share amounts) |
|||||||||
Earnings From: |
|||||||||
Idaho Power Company |
$ |
25,892 |
$ |
7,711 |
$ |
122,559 |
$ |
94,115 |
|
IDACORP Financial Services (IFS) |
(53) |
1,214 |
521 |
3,426 |
|||||
Ida-West Energy (IWE) |
(52) |
182 |
2,727 |
2,353 |
|||||
Holding Company and All Other |
(2,274) |
(1,663) |
(1,457) |
(1,480) |
|||||
Net income attributable to |
|||||||||
IDACORP, Inc. |
$ |
23,513 |
$ |
7,444 |
$ |
124,350 |
$ |
98,414 |
|
|
|
|
|
|
|
|
|
||
Weighted average outstanding |
|||||||||
sharesdiluted |
47,724 |
46,064 |
47,182 |
45,379 |
|||||
Earnings per diluted share |
$ |
0.49 |
$ |
0.16 |
$ |
2.64 |
$ |
2.17 |
The
following table presents a reconciliation of net income attributable to
IDACORP, Inc. for the three and twelve months ended December 31, 2008 to December
31, 2009 (in millions):
|
Three months |
Year |
|||||||
|
ended |
ended |
|||||||
December 31, 2008 |
|
|
$ |
7.4 |
|
|
$ |
98.4 |
|
Change in Idaho Power net income before taxes: |
|
|
|
|
|
|
|
|
|
|
Rate and other regulatory changes, net of PCA (1) and FCA (2) mechanisms |
$ |
15.3 |
|
|
$ |
48.8 |
|
|
|
Reduced sales volumes |
|
0.5 |
|
|
|
(23.3) |
|
|
|
Increase in other O&M (3) expense, excluding FCA |
|
(0.6) |
|
|
|
(2.8) |
|
|
|
Increase in depreciation expense |
|
(5.0) |
|
|
|
(8.5) |
|
|
|
2008 OATT (4) rate refund |
|
8.4 |
|
|
|
5.0 |
|
|
|
2008 Investment impairment |
|
6.8 |
|
|
|
6.8 |
|
|
|
Other net increases (decreases) |
|
(3.1) |
|
|
|
0.3 |
|
|
(Increase) Decrease in income tax expense |
|
(4.1) |
|
|
|
2.1 |
|
|
|
Total increase in Idaho Power net income |
|
|
|
18.2 |
|
|
|
28.4 |
|
Changes at holding company (net of tax) |
|
|
|
(0.1) |
|
|
|
0.7 |
|
Decreased net income at IFS (net of tax) |
|
|
|
(1.3) |
|
|
|
(2.9) |
|
Other net decreases (net of tax) |
|
|
|
(0.7) |
|
|
|
(0.2) |
|
December 31, 2009 |
|
|
$ |
23.5 |
|
|
$ |
124.4 |
|
|
|
|
|
|
|
|
|
|
(1) PCA - Power Cost Adjustment
(2) FCA - Fixed Cost Adjustment
(3) O&M - Operations and Maintenance
(4)
OATT Open Access
Transmission Tariff
Page 2 of 5
Changes to the Idaho PCA mechanism and base rate increases that both took effect in the first quarter of 2009, positively impacted net income as did decreased net power supply costs. Earnings in 2009 also increased due to a May 2009 Oregon Public Utility Commission stipulation allowing the deferral for future recovery of $6.4 million of excess power supply costs incurred in 2007.
Idaho Powers retail customer sales volumes decreased four percent in 2009 as compared to 2008. Irrigation usage decreased 14 percent primarily due to increased precipitation. Economic factors and energy conservation also contributed to the reduction in sales volume.
Other O&M expense increased due to an increase in payroll related expenses and uncollectible accounts and was partially offset by decreases in outside services and other office expenses. Depreciation expense increased mainly due to the accelerated depreciation of the existing meter infrastructure. Two items that positively impacted the comparison of 2009 to 2008 results relate to 2008 activities that did not recur in 2009; an OATT rate refund ordered by the Federal Energy Regulatory Commission that reduced transmission revenue and an impairment of investments.
Idaho Powers 2009 effective income tax rate decreased primarily due to examination settlements and the timing and amount of other regulatory flow-through tax adjustments, partially offset by the tax expense on higher pre-tax income.
There was no accelerated amortization of deferred investment tax credits during 2009 as the Idaho jurisdictional earnings exceeded 9.5 percent of the Idaho retail common equity, as permitted by the Idaho 2009 settlement agreement.
Key Operating and
Financial Metrics
2010 |
2009 |
|||
|
Estimate |
Actual |
||
Idaho Power Operation & |
|
|
||
|
Maintenance Expense (Millions) |
$295-$305 |
$293 |
|
Idaho Power Capital |
|
|
||
|
Expenditures (Millions) (1) |
$355-$365 |
$273 |
|
Idaho Power Hydroelectric |
|
|
||
|
Generation (Million MWh) (2) |
6.5-8.5 |
8.1 |
|
Non-Regulated Subsidiary Earnings |
|
|
||
|
and Holding Company Expenses (Millions) |
$0-$3 |
$1.8 |
|
Effective Income Tax Rates: (3) |
||||
|
Idaho Power |
13%-17% |
23% |
|
|
Consolidated IDACORP |
6%-10% |
15% |
|
|
|
|
||
(1) The range includes amounts for Langley Gulch Power Plant, the Hemingway-Bowmont transmission line, the Hemingway substation and expenditures for the siting and permitting of major transmission expansions for Boardman to Hemingway and the Gateway West transmission projects.
(2) The projected range for annual hydroelectric generation is based on 2009-2010 Snake River Basin snowpack at 60 percent of average on February 21, 2010, with reservoir storage levels in selected federal reservoirs upstream of Brownlee at approximately 118 percent of average as of February 21, 2010.
(3) The effective income tax rate ranges include the utilization of up to $25 million of additional deferred investment tax credit (ADITC) amortization at Idaho Power. The rates do not reflect discrete events such as examination settlements or method changes.
Page 3 of 5
Earnings Guidance
Earnings guidance is being initiated for 2010 in the range of $2.65-$2.80 per diluted share. The guidance incorporates benefits assumed under the settlement agreement approved by the Idaho Public Utilities Commission (IPUC) among Idaho Power Company, several of Idaho Powers customers, the IPUC staff and others with respect to rates for 2009-2011. Key elements of the settlement that relate to the guidance provided are the use of investment tax credits to get to a 9.5% return on equity in the Idaho jurisdiction and an equal sharing of any Idaho earnings exceeding the authorized level of 10.5%. The guidance also incorporates the impacts of the estimated key operating metrics noted above.
More detailed financial information will be provided in IDACORPs Annual Report on Form 10-K to be filed today with the Securities and Exchange Commission and posted to the IDACORP Web site at www.idacorpinc.com .
Web Cast / Conference Call
IDACORP
will hold an analyst conference call today at 2:30 p.m. Mountain Time (4:30
p.m. Eastern Time). All parties interested in listening may do so through a
live Web cast, or by calling (617) 614-3472 for listen-only mode. The passcode
is Idaho. Details of the conference call logistics are posted on the companys
Web site (
http://www.idacorpinc.com
). A replay of the conference call
will be available on the companys Web site for a period of 12 months.
Background Information / Safe Harbor Statement
Boise, Idaho-based IDACORP, formed in 1998, is a holding company comprised of Idaho Power Company, a regulated electric utility; IDACORP Financial, a holder of affordable housing projects and other real estate investments; and Ida-West Energy, an operator of small hydroelectric generation projects that satisfy the requirements of the Public Utility Regulatory Policies Act of 1978. To learn more about Idaho Power or IDACORP, visit www.idahopower.com or www.idacorpinc.com.
Page 4 of 5
Certain statements contained in this news release, including statements with respect to future earnings, ongoing operations, and financial conditions, are forward-looking statements within the meaning of federal securities laws. Although IDACORP and Idaho Power believe that the expectations and assumptions reflected in these forward-looking statements are reasonable, these statements involve a number of risks and uncertainties, and actual results may differ materially from the results discussed in the statements. Factors that could cause actual results to differ materially from the forward-looking statements include: The effect of regulatory decisions by the Idaho Public Utilities Commission, the Oregon Public Utility Commission and the Federal Energy Regulatory Commission affecting our ability to recover costs and/or earn a reasonable rate of return including, but not limited to, the disallowance of costs that have been deferred; changes in and compliance with state and federal laws, policies and regulations, including new interpretations by oversight bodies, which include the Federal Energy Regulatory Commission, the North American Electric Reliability Corporation, the Western Electricity Coordinating Council, the Idaho Public Utilities Commission and the Oregon Public Utility Commission, of existing policies and regulations that affect the cost of compliance, investigations and audits, penalties and costs of remediation that may or may not be recoverable through rates; changes in tax laws or related regulations or new interpretations of applicable law by the Internal Revenue Service or other taxing jurisdictions; litigation and regulatory proceedings, including those resulting from the energy situation in the western United States, and penalties and settlements that influence business and profitability; changes in and compliance with laws, regulations, and policies including changes in law and compliance with environmental, natural resources, endangered species and safety laws, regulations and policies and the adoption of laws and regulations addressing greenhouse gas emissions, global climate change, and energy policies; global climate change and regional weather variations affecting customer demand and hydroelectric generation; over-appropriation of surface and groundwater in the Snake River Basin resulting in reduced generation at hydroelectric facilities; construction of power generation, transmission and distribution facilities, including an inability to obtain required governmental permits and approvals, rights-of-way and siting, and risks related to contracting, construction and start-up; operation of power generating facilities including performance below expected levels, breakdown or failure of equipment, availability of transmission and fuel supply; changes in operating expenses and capital expenditures, including costs and availability of materials, fuel and commodities; blackouts or other disruptions of Idaho Power Companys transmission system or the western interconnected transmission system; population growth rates and other demographic patterns; market prices and demand for energy, including structural market changes; increases in uncollectible customer receivables; fluctuations in sources and uses of cash; results of financing efforts, including the ability to obtain financing or refinance existing debt when necessary or on favorable terms, which can be affected by factors such as credit ratings, volatility in the financial markets and other economic conditions; actions by credit rating agencies, including changes in rating criteria and new interpretations of existing criteria; changes in interest rates or rates of inflation; performance of the stock market, interest rates, credit spreads and other financial market conditions, as well as changes in government regulations, which affect the amount and timing of required contributions to pension plans and the reported costs of providing pension and other postretirement benefits; increases in health care costs and the resulting effect on medical benefits paid for employees; increasing costs of insurance, changes in coverage terms and the ability to obtain insurance; homeland security, acts of war or terrorism; natural disasters and other natural risks, such as earthquake, flood, drought, lightning, wind and fire; adoption of or changes in critical accounting policies or estimates; and new accounting or Securities and Exchange Commission requirements, or new interpretation or application of existing requirements. Any such forward-looking statements should be considered in light of such factors and others noted in the companies Annual Report on Form 10-K for the year ended December 31, 2008, and the Quarterly Reports on Form 10-Q for the quarters ended March 31, 2009, June 30, 2009, and September 30, 2009 and other reports on file with the Securities and Exchange Commission. Any forward-looking statement speaks only as of the date on which such statement is made. New factors emerge from time to time and it is not possible for management to predict all such factors, nor can it assess the impact of any such factor on the business or the extent to which any factor, or combination of factors, may cause results to differ materially from those contained in any forward-looking statement.
Page 5 of 5